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The Reserve and Auxiliary Air Forces Act, 1952

Introduction to Reservice & Auxiliary Air Force Act

Section 1. Short title, extent and commencement

1[THE] RESERVE AND AUXILIARY AIR FORCES ACT, 1952

(ACT 62 OF 1962)

[22nd August, 1952],

[The text of the Act printed here is as on 31-08-1998.]

An Act to provide for the constitution and regulation of certain Air Force Reserves and also an Auxiliary Air Force and for matters connected therewith.

Be it enacted by Parliament as follows:—

STATEMENT OF OBJECTS AND REASONS

“It is necessary to constitute certain Reserves for the Air Force in order to enable quick expansion in an emergency. The Reserves proposed will be constituted from outgoing Indian Air Force personnel, civilian pilots and technicians, and by raising an Auxiliary Force of volunteers from the public.

2. Regular Air Force Reserve.

The Regular Air Force Reserve will consist of Indian Air Force officers and airmen transferred after completion or termination of the period of their regular service to this Reserve subject to the existence of vacancies. The initial period of Reserve service will normally be 5 years for officers and 6 years for airmen subject also to their reaching such age limit as may be prescribed by the Government.

Those extended Service Commissioned Officers whose term of employment expires prior to the formation of this Reserve will also be liable to serve in the Reserve.

3. Air Defence Reserve.

The constitution of the Air Defence Reserve requires that a census should be taken of the civilian technical man-power available in the country which could be utilised if occasion arises. All persons within certain age limits possessing certain flying or other technical qualifications would be required to furnish certain particulars lo the appropriate authority and submit themselves for medical examination. A register of persons who are fit for service would be maintained, and if and when occasion arises persons whose names are entered in the register will be called out for service. It is, necessary to have legislation for this purpose on account of the shortage of trained personnel which obtains at present, and which is likely to persist for some time; and also to safeguard the interests of those who are called out from their jobs for training or required to serve in an emergency.

Provision is made requiring civil employers to grant any enrolled person such leave as may be necessary and to have him reinstated into civil employment after the termination of the period during which he has been called out.

4. Auxiliary Air Force.-

The Auxiliary Air Force allows the enrolment of civilian volunteers (including Government servants) to give them part-time Air Force training. This provides for the fighter defence of the locality, in which its self-contained units and squadrons are raised. It may be looked at as the Territorial Army’s air counterpart.

Advisory Committees will be set up in big towns, where it is intended to locate the Auxiliary Air Force Squadrons to maintain close liaison with the civil side. These Committees will serve also as a link between the Auxiliary Air Force and the Indian Territorial Army and assist the Commanding Officers of the Units concerned to recruit civilian personnel.

The period of service in the Auxiliary Air Force will normally be five years in the first instance.

5.

The period of training will be prescribed in the rules made by the Central Government from time to time and care will be taken to see that the training is so arranged that minimum dislocation of normal civil duties is caused.

6.

The composition of the Reserves, the ranks of the persons enrolled and other allied matters will be regulated by rules made by the Central Government and it is intended to build these Reserves gradually . Gaz. of Ind., 1952, Pt. II, S. 2, p. 177.

ACT HOW AFFECTED BY SUBSEQUENT LEGISLATION

—Repealed in part by Act 36 of 1957.

—Awarded by Act 4 of 1980.

COGNATE ACTS AND PROVISIONS

1. Aircraft Act, 22 of 1934.

2. Army Act, 46 of 1950.

3. Army and Air Force (Disposal of Private Property) Act, 40 of 1950.

4. Armed Forces (Emergency Duties) Act, 15 of 1947.

5. Commanders-in-Chief (Change in Designation) Act, 19 of 1955.

6. Indian Soldiers (Litigation) Act, 4 of 1925.

7. National Cadet Corps Act, 31 of 1948.

8. Navy Act, 62 of 1957.

9. Naval Armament Act, 7 of 1923.

10. Territorial Army Act, 56 of 1948.

11. Indian Reserve Forces Act, 4 of 1888.

12. Border Security Force Act, 47 of 1968.

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1. For Statement of Objects and Reasons, see Gaz. of Ind., 1952, Pt. II, Sec. 2, page 177; for Report of Select Committee, see ibid, p. 379,

(1) This Act may be called the Reserve and Auxiliary Air Forces Act, 1952.

(2) It extends1 to the whole of India.

(3) This Chapter shall come into force at once, and the remaining provisions shall come into force on such date2 as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions.

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1. It has been extended to the Union Territory of—

(1) Dadra and Nagar Haveli by Regn. 6 of 1963 (1-7-1965);

(2) Pondicherry by Regn. 7 of 1963 (1-10-1963); and

(3) State of Sikkim — S. O. 208 (E)/ 1975 — Gaz. of Ind., 16-5-1975. Pt. II, Section 3(ii), Ext., p. 1213. enforced on 1-5-1976.

2. 15th August, 1955, was appointed as the date on which Chapters II and III of the Act and the provisions of Chapters V and VI thereof except In so far as they relate to the Auxiliary Air Force came into force, see S. R. 0. 322, D/- 20-8-1955 published in Gaz. of Ind., 1955, Pt. Sec. 4, p. 189; and 15th October, 1955 was appointed as the date on which Chapter IV of the Act and the provisions of Chapters V and VI thereof in so far as they relate to the Auxiliary Air Force came into force, see S.R.O., 395, P/- 15-10-1955, ibid, p. 259.
 

Section 2. Definitions

In this Act, unless the context otherwise requires,—

(a) “Air Force Reserve” means any of the Air Force Reserves raised and maintained under this Act;

(b) “Competent authority” means an air officer or a committee consisting of two or more air officers appointed under section 3;

(c) “Prescribed” means prescribed by rules made under this Act;

(d) all other words and expressions used herein and defined in the Air Force Act, 1950 and not hereinbefore defined shall have the meanings respectively assigned to them by that Act.
 

Section 3. Appointment of competent authority

The Central Government may, by notification in the Official Gazette, appoint an air1 officer or a committee consisting of two or more air officers to perform all or any of the functions of the competent authority under this Act for such area as may be specified in the notification.

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1. Air Officer-in-charge Administration, Air H.Q., appointed to perform all the functions of the Competent Authority under the Act for the whole of India— S.R.O. 374, D/- 17-8-1970, Gaz. of Ind., 29-8-1970, Pt. II, S. 4, p. 558.
 

Section 4. Constitution of Regular Air Force Reserve

The Central Government may raise and maintain in the manner hereafter in this Chapter provided an Air Force Reserve to be designated the Regular Air Force Reserve which shall consist solely of persons transferred or appointed to it under Section 5.
 

Section 5. Recruitment to the Regular Air Force Reserve

(1) The competent authority may, by general or special order, transfer to the Regular Air Force Reserve—

(a) any officer or airman of the Air Force who under the terms and conditions of his service is liable to serve in any Air Force Reserve if and when constituted;

(b) any officer or airman of the Air Force whose commission or engagement in the Air Force has been terminated before the commencement of this Act and who under the terms of his commission or engagement was liable to serve in any Air Force Reserve if and when constituted;

(c) any officer or airman who has served in the Air Force and has retired there from; and any officer or airman so transferred shall be deemed to be a member of the said Reserve.

(2) The competent authority may, in such circumstances and subject to such conditions as may be prescribed, by special order, appoint to the Regular Air Force Reserve any member of the Air Defence Reserve or the Auxiliary Air Force raised and maintained under this Act, and where any such member is so appointed, he shall cease to be a member of the Air Defence Reserve or the Auxiliary Air Force, as the case may be, and shall as from the date of such appointment be deemed to be a member of the Regular Air Force Reserve.

(3) The competent authority may, for reasons which in its opinion are sufficient, cancel any order made under sub-section (1) or sub-section (2) and on the cancellation of such order the person in respect of whom the order had been made shall cease to be a member of the Regular Air Force Reserve.
 

Section 6. Classes of persons in the Regular Air Force Reserve

Members of the Regular Air Force Reserve shall be divided into the following classes, namely:—

(a) General duties officers, and

(b) Ground duties officers, and

(c) Airmen,

and every officer shall be entitled on transfer or appointment to the Reserve to hold the same rank as that which he last held in the Air Force, or the Air Defence Reserve or the Auxiliary Air Force, as the case may be, before such transfer or appointment.
 

Section 7. Period of service

(1) Every member of the Regular Air Force Reserve shall be liable to serve in the Reserve—

(a) if he is transferred to the Reserve under sub-section (1) of section 5, for the period of his Reserve liability; and

(b) if he is appointed to the Reserve under sub-section (2) of section 5, for the remainder of the period for which he was liable to serve in the Air Defence Reserve or the Auxiliary Air Force, as the case may be :

Provided that the competent authority may require any such member to serve in the Reserve for such further period or periods not exceeding in the aggregate five years as it may think fit.

Explanation I. For the purposes of this sub-section, “period of Reserve liability’ in relation to .any member of the Regular Air Force Reserve means the period for which under the terms and conditions of his service in the Air Force he was liable to serve in any Air Force Reserve if and when constituted.

Explanation II. In computing the period of Reserve liability in relation to any member of the Regular Air Force Reserve whose commission or engagement in the Air Force was terminated before the commencement of this Act, the period which has elapsed between such termination and the date of such commencement shall be included.

(2) Notwithstanding anything contained in sub-section (1), no person shall be liable to serve in the Reserve after attaining the prescribed age.
 

Section 8. Termination of service in the Reserve

Every member of the Regular Air Force Reserve shall, on completion of the period of his service therein, cease to be a member of the Reserve.
 

Section 9. Constitution of Air Defence Reserve

The Central Government may raise and maintain in the manner hereafter in this Chapter provided an Air Force Reserve to be designated the Air Defence Reserve which shall consist of persons deemed under the provisions of section 16 to be enrolled therein.
 

Section 10. Classes of persons in the Air Defence Reserve

Members of the Air Defence Reserve shall be divided into the following classes, namely :—

(a) General duties oficers;

(b) Ground duties officers; and

(c) Airmen
 

Section 11. Obligation to register

(1) Every Citizen of India who—

(a) holds or has held a public transport pilot’s licence (“B” Licence) issued under the Indian Aircraft Rules, 1937, or

(b) has had not less than two hundred hours’ experience of solo flying, including not less than thirty landings, or

(c) holds or has held a first class navigator’s licence issued under the Indian Aircraft Rules, 1937, or

(d) has had at least four years’ aviation experience during which at least six hundred hours shall have been spent in the air, not less than one hundred hours of such experience being experience of navigation ‘in the air, or

(e) holds or has held a first class radio telegraph operator’s licence issued under the Indian Aircraft Rules, 1937, or

(f) holds or has held a radio telephone operator’s licence issued under the Indian Aircraft Rules, 1937, or

(g) holds or has held a licence as ground engineer in any of the categories A, B, C, D or X issued under the Indian Aircraft Rules, 1937, or

(h) is or was at any time employed in connection with any aerodrome or in connection with the control and movement of aircraft, in such capacity as may be prescribed,

shall within the prescribed period correctly fill up, or cause to be filled up, to the best of his knowledge and belief the prescribed form, and sign and lodge it with the competent authority nearest to his usual place of residence or business:

Provided that nothing contained in this sub-section shall apply —

(i) to any person belonging to any of the classes specified in clauses (a) to (f), if he has attained the age of thirty-seven years; or

(ii) to any person belonging to any of the classes specified in clauses (g) and (h), if he has attained the age of fifty years.

(2) Without prejudice to the provisions contained in sub-section (1), the competent authority may, if it is satisfied that the provisions of that sub-section apply to any person, by order in writing, require that person to furnish within such time such particulars as may be specified in the order and such person shall within the specified time furnish correctly to the best of his knowledge and belief the said particulars to the said authority in such form and manner as may be prescribed.
 

Section 12. Liability to be called up for inquiry

Every person to whom the provisions of section 11 are applicable shall be liable to be called up for inquiry under section 13,—

(a) if he belongs to any of the classes specified in clauses (a) to (f) of sub-section (1) of section 11, until he has completed his thirty-seventh year, and

(b) if he belongs to any of the classes specified in clauses (g) and (h) of the said sub-section, until he has completed his fiftieth year.
 

Section 13. Calling-up for inquiry

The competent authority may cause to be served on any person for the time being liable to be called up for inquiry under section 12 a written notice stating that he is called up for inquiry regarding his fitness for service in the Air Defence Reserve and requiring him to present himself to such person and at such place and at such time as may be specified in the notice and to submit himself to inquiry by the said person.
 

Section 14. Medical examination

Every person called up for inquiry under section 13 shall, if and when required by the competent authority present himself for examination before such medical officer as may be directed by that authority and for the purposes of such examination, shall comply with the directions of the medical officer.
 

Section 15. Registration of persons considered fit for enrolment

If, after such inquiry and medical examination as aforesaid, the competent authority considers a person fit for enrolment in the Air Defence Reserve, it shall inform him accordingly and enter his name and other prescribed particulars in a register maintained in such form and manner as may be prescribed.
 

Section 16. Calling up for service

The competent authority may cause to be served on any person whose name is entered in the register maintained in pursuance of S. 15 a written notice stating that he is called up for service in the Air Defence Reserve and requiring him to present himself at such place and time and to such authority as may be specified in the notice; and the person upon whom the notice is served shall be deemed to be enrolled in the Reserve as from the day so specified.
 

Section 17. Period of service

(1) Every person deemed to be enrolled in the Air Defence Reserve shall be liable for service—

(a) if he belongs to any of the classes specified in clauses (a) to (0 of sub-section (I) of section 11, until he has completed his forty-second year;

(b) if he belongs to any of the classes specified in clauses (g) and (h) of the said sub-section, until he

has completed his fifty-fifth year.

(2) Every such person, on attaining the age specified in sub-section (1), shall cease to be a member of the Air Defence Reserve.
 

Section 18. Constitution of Auxiliary Air Force

(1) The Central Government may raise and maintain in the manner hereafter in this Chapter provided an Air Force to be designated the Auxiliary Air Force.

(2) The Central Government may constitute such number of squadrons and units of the Auxiliary Air Force as it thinks fit and may disband or reconstitute any squadron or unit.
 

Section 19. Classes of persons in the Auxiliary Air force

Members of the Auxiliary Air Force shall be divided into the following classes, namely :—

(a) General duties officers;

(b) Ground duties officers; and

(c) Airmen.
 

Section 20. Officers of the Auxiliary Air Force

The President may grant to such person as he thinks fit a commission as an officer in the Auxiliary Air Force with the designation of rank corresponding to that of any commissioned officer in the Air Force.
 

Section 21. Persons eligible for enrolment

Any citizen of India may offer himself for enrolment in the Auxiliary Air Force and may, if he satisfies the prescribed conditions, be so enrolled on such terms as may be prescribed.
 

Section 22. Period of service

Every officer and every enrolled person shall, subject to any rules that may be made in this behalf under this Act, be required to serve in the Auxiliary Air Force for a period of five years from the date of his appointment or enrolment but may, after the completion of his period of service, volunteer to serve therein for further periods each of not more than five years’ duration.
 

Section 23. Termination of service

The service of any officer or enrolled person in the Auxiliary Air Force may, at any time before the completion of his period of service, be terminated by such authority and under such conditions as may be prescribed.
 

Section 24. Advisory Committees

(1) The Central Government shall, as soon as may be after the commencement of this Act, constitute—

(a) for the whole of India, a Central Advisory Committee;

(b) for each State, a State Advisory Committee; and

(c) for every unit of the Auxiliary Air Force, a Unit Advisory Committee.

(2) It shall be the duty of the Central Advisory Committee to advise the Central Government on matters connected with the Auxiliary Air Force generally, of the State Advisory Committee to advise the Central Government on matters connected with the formation of squadrons or units in the State and squadrons or units already stationed in the State.

(3) The duties, powers and procedure of Advisory Committees and in particular the matters in respect of which the Advisory Committees may be called upon to give advice shall be such as may be prescribed.
 

Section 25. Liability to be called up for service

Every member of an Air Force Reserve or the Auxiliary Air Force shall, during the period of his service, be liable to be called up—

(a) for training for such period as may be prescribed and for medical examination,

(b) for service in aid of the civil power,

(c) for Air Force service in India or abroad.
 

Section 26. Application of Air Force Act. 1950

Every member of an Air Force Reserve or the Auxiliary Air Force shall, when called up for training, medical examination or for service under this Act, be subject to the Air Force Act, 1950, and the rules made there under in the same manner as a person belonging to the Air Force and holding the same rank is subject to the said Act and rules and shall continue to be so subject until duly released from such training, medical examination or service, as the case may be.
 

Section 27. Reinstatement in civil employ of persons required to perform service under this Act

(1) It shall be the duty of every employer by whom a person called up under section 25 is employed to grant him such leave as may be necessary and to reinstate him in his employment on the termination of the period during which he has been so-called up in an occupation and under conditions not less favourable to him than those which would have been applicable to him had he not been so-called up:

Provided that if the employer refuses to reinstate such person or denies his liability to reinstate such person, or if for any reason the reinstatement of such person is represented by the employer to be impracticable, either party may refer the matter to the prescribed authority and that authority shall, after considering all matters which may be put before him and after making such further enquiry into the matter as may be prescribed, pass an order—

(a) Exempting the employer from the provisions of this section, or

(b) Requiring him to re-employ such person on such terms as that authority thinks suitable, or

(c) requiring him to pay to such person by way of compensation for failure or inability to re-employ a sum not exceeding an amount equal to six months’ remuneration at the rate at which his last remuneration was payable to him by the employer.

(2) If any employer fails to obey the order of any such authority as is referred to in the proviso to sub-section (1), he shall be punishable with fine which may extend to one thousand rupees, and the court by which an employer is convicted under this section shall order him (if he has not already been so required by the said authority) to pay to the person whom he has failed to re-employ a sum equal to six months* remuneration at the rate at which his last remuneration was payable to him by the employer, and any amount so required to be paid either by the said authority or by the court shall be recoverable as if it were a fine imposed by such court.

(3) In any proceeding under this section it shall be a defence for an employer to prove that the person formerly employed did not apply to the employer for reinstatement within a period of two months from the termination of the period during which he was callt •’

(4) The duty imposed by sub-section (1) upon an employer to grant leave to a person such as is described in that sub-section or to reinstate him in his employment shall attach to an employer who, before such person is actually called up under section 25 terminates his employment in circumstances such as to indicate an intention to evade the duty imposed by that sub-section and such intention shall be presumed until the contrary is proved if the termination takes place after the issue of an order relating to that person under section 25.
 

Section 28. Preservation of certain rights of persons called up for service

When any person called up under section 25 has any rights under any provident fund or superannuation fund or other scheme for the benefit of employees maintained in connection with the employment he relinquishes, he shall continue, during the period for which he has been so-called up and if he is reinstated, until such reinstatement under the provisions of this Act, to have in respect of such fund or scheme such rights as may be prescribed.
 

Section 29. Pay and allowances

(1) Every member of an Air Force Reserve or the Auxiliary Air Force shall, during the period of training or active service, receive such pay and allowances as are admissible to an officer 01 airman, as the case may be, in the corresponding rank, branch or trade of the Air Force.

(2) Where any such member was in any employment immediately before he is called up for training under section 25, the employer shall, during the period of the training, be liable to pay to him the difference if any between the pay and allowances which he would have received from the employer if he had not been called up for such training and the pay and allowances which he receives as such member while under training.

(3) If any employer refuses or fails to pay to any such member the difference in pay and allowances as provided in sub-section (2), such difference in pay and allowances may, on application by the member to the prescribed authority, be recovered from the employer in such manner as may be prescribed.
 

Section 30. Penalties

(1) If any person refuses or without lawful excuse (the burden of proving which shall lie upon such person) neglects to comply fully with the requirements of sub-section (1) of section 11 or of any order made under sub-section (2) of that section or with the requirements of section 14, he shall be punishable with fine which may extend to five hundred rupees.

(2) If any person willfully fails to comply with any notice issued under section 13 or section 16, he shall be punishable with imprisonment which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
 

Section 31. Service of notice

Any notice or order to be served on any person for the purposes of this Act may be sent by post to that*person at his last known address or may be served upon him in such other manner as may be prescribed.
 

Section 32. Competent authority to be public servant

For the purposes of this Act every competent authority and where the competent authority consists of a committee of two or more air officers, every member of the committee shall be deemed to be a public servant within the meaning of S. 21 of the Indian Penal Code.
 

Section 33. Power of Central Government to grant exemptions

The Central Government may, for special reasons and subject to such conditions as may be prescribed, by order exempt any person from any obligation or liability under this Act or any particular provision thereof.
 

Section 34. Power to make rules

(1) The Central Government may, by notification in the Official Gazette, make rules1 for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :—

(a) the composition and strength of any Air Force Reserve;

(b) the circumstances in which and the conditions subject to which any officer or airman may be transferred or appointed to the Regular Air Force Reserve under section 5;

(c) the age beyond which persons shall not be liable to serve in the Regular Air force Reserve;

(d) the form and manner in which the particulars required by sub-section (2) of section 11 shall be furnished;

(e) the form and manner in which registers shall be maintained in pursuance of section 15, the particulars to be entered therein, and the correction or revision of such particulars from time to time;

(f) the pay or allowances payable to persons called up for inquiry or medical examination under this Act;

(g) the terms and conditions subject to which a person may be enrolled as a member of the Auxiliary Air Force;

(h) the authority by which and the conditions subject to which the service-of any officer or enrolled person in the Auxiliary Air Force may be terminated;

(i) the constitution and the duties, powers and procedure of Advisory Committees to be constituted under section 24;

(j) the period and manner of training of members of any Air Force Reserve and the Auxiliary Air Force;

(k) the manner in which and the conditions subject to which the rank of any member of an Air Force Reserve may be determined;

(l) the constitution of the authority for the purpose of section 27 and the manner in which such authority may conduct any inquiry under this Act;

(m) the authority to which an application under sub-section (3) of section 29 may be made and the manner in which the difference in the pay and allowances may be recovered under that subsection;

(n) the manner in which any notice or order issued or made under this Act may be served;

(o) the conditions subject to which any person may be exempted from any obligation or liability under this Act or any particular provision thereof;

(p) any other matter which under this Act is to be, or may be prescribed.

(3) Any rule made under this section may provide that a contravention thereof shall be punishable with fine which may extend to fifty rupees.

2[(4) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]

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1. See the Reserve and Auxiliary Air Forces Rules, 1953, S.R.O. 175, dated 25-4-1953, published in Gazette of India, 1953. Pt. II, See. 4, p. 187.

2. Substituted by Delegated Legislation Provisions (Amendment) Act (4 of 1986) S. 2 Sen. (15-6-86).
 

Section 35. Amendment of sections 2, 4 and 31, Act XLV of 1950

Repealed by the Repealing and Amending Act, 1957 (36 of 1957), section 2 and Schedule I (17-9-1957).
 

Section 36. Repeal of Act XXXVI of 1939

Repealed by the Repealing and Amending Act, 1957 (36 of 1957), section 2 and Schedule I (17-9-1957).

Schedule
 

THE SCHEDULE

[See section 199 (1)]

(1) Praja Bhumyadhikari Sambandha Bishyak Ain (EK Ain, 1296 Tripurabda).

(2) 1296 Tripurabda Praja Bhumyadhikari Ain Sansudhan Bishyak 1337 Tripurabder EK Ain, and 1296 Tripurabder Praja Bhumyadhikari Ain Sansudhan Bishyak 1335 Tripurabder EK Ain.

(3) Rajdhani Gartala Sahar Bondobasta Sambandhiya Bidhan, 1346.T.E.

(4) Jarip-o-Bondobasta Sambandhiya Niyamabali, 1309 Tripurabda.

(5) Tripura Rajyer Jarip Bondobasta Sambandhyia Niyamabali Sansudhan Bishyak, 1336 Tripurabder Tin Ain.

(6) Jarip-o-Bondobasta Sambandhiya Niyamabali (Prathem Khanda).

(7) Jarip-o-Bondobasta Sambandhiya Niyamabali (Dwitiya Khanda), 1323 T.E.

(8) 1290 Saner EK Ain Orthat Rajaswa Sambandhiya Niyamabali, and 1323 Tripurabder Dui Ain Orthat Faraswa Sambandhiy 1290 Saner EK Ain Sensudhan Bishyak Bidhi.

Bydeb

The Army Act, 1950

Chapter I – Preliminary

ACT NO. 46 OF 1950 [ 20th May, 1950.]

An Act to consolidate and amend the law relating to the government of the regular Army.

BE it enacted by Parliament as follows:-
 

Section 1. Short title and commencement

(1) This Act may be called the Army Act, 1950 .

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf.
 

Section 2. Persons subject to this Act

(1) The following persons shall be subject to this Act wherever they may be, namely:-

(a) officers, junior commissioned officers and warrant officers of the regular Army;

(b) persons enrolled under this Act;

(c) persons belonging to the Indian Reserve Forces;

(d) persons belonging to the Indian Supplementary Reserve Forces when called out for service or when carrying out the annual test;

(e) officers of the Territorial Army, when doing duty as such officers, and enrolled persons of the said Army when called out or embodied or attached to any regular forces, subject to such adaptations and modifications as may be made in the application of this Act to such persons under sub- section (1) of section 9 of the Territorial Army Act, 1948 (56 of 1948.)

(f) persons holding commissions in the Army in India Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces;

(g) officers appointed to the Indian Regular Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces; 

(i) persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of, the regular Army

(2) Every person subject to this Act under clauses (a) to 2[ (g) of sub- section (1) shall remain so subject until duly retired, dis- charged, released, removed, dismissed or cashiered from the service.

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1. Cl. (h) omitted by the Adaption of Laws (No. 3) Order, 1956.

2. Subs. by the Adaptation of Laws (No. 3) Order, 1956, for” (h)”
 

Section 3. Definition

In this Act, unless the context otherwise requires,-

(i) ” active service”, as applied to a person subject to this Act, means the time during which such person-

(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or

(b) is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or

(c) is attached to or forms part of a force which is in military occupation of a foreign country;

(ii) ” civil offence” means an offence which is triable by a Criminal Court;

(iii) ” civil prison” means any jail or place used for the detention of any criminal prisoner under the Prisons Act, 1894 , (9 of 1894 .) or under any other law for the time being in force;

(iv) [ ” Chief of the Army Staff” means the officer commanding the regular Army;]

(v) ”commanding officer”, when used in any provision of this Act, with reference to any separate portion of the regular Army or to any department thereof, means the officer whose duty it is under the regulations of the regular Army, or in the absence of any such regulations, by the custom of the service, to discharge with respect to that portion of the regular Army or that department, as the case may be, the functions of a commanding officer in regard to matters of the description referred to in that provision;

(vi) ”corps” means any separate body of persons subject to this Act, which is prescribed as a corps for the purposes of all or any of the provisions of this Act;

(vii) ”court- martial” means a court- martial held under this Act;

(viii) ”Criminal Court” means a Court of ordinary criminal justice in any part of India 

(ix) ”department” includes any division or branch of a department;

(x) ” enemy” includes all armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to military law to act;

(xi) ” the Forces” means the regular Army, Navy and Air Force or any part of any one or more of them;

(xii) ” junior commissioned officer” means a person commissioned, gazetted or in pay as a junior commissioned officer in the regular Army or the Indian Reserve Forces, and includes a person holding a junior commission in the Indian Supplementary Reserve Forces. or the Territorial Army, [ who is for the time being subject to this Act;

(xiii) ” military custody” means the arrest or confinement of a person according to the usages of the service and includes naval or air force custody;

(xiv) ” military reward” includes any gratuity or annuity for long service or good conduct, good service pay or pension, and any other military pecuniary reward;

(xv) ” non- commissioned officer” means a person holding a non- commissioned rank or an acting non- commissioned rank in the regular Army or the Indian Reserve Forces, and includes a non- commissioned officer or acting noncommissioned officer of the Indian Supplementary Reserve Forces or the Territorial Army, [ who is for the time being subject to this Act;

(xvi) ”notification” means a notification published in the Official Gazette;

(xvii) ”offence” means any act or omission punishable under this Act and includes a civil offence as hereinbefore defined;

(xviii) ”officer” means a person commissioned, gazetted are in pay as an officer in the regular Army, and includes-

(a) an officer of the Indian Reserve Forces;

(b) an officer holding a commission in the Territorial Army granted by the President with designation of rank corresponding to that of an officer of the regular Army who is for the time being subject to this Act;

(c) an officer of the Army in India Reserve of Officers who is for the time being subject to this Act;

(d) an officer of the Indian Regular Reserve of Officers who is for the time being subject to this Act; 

(f) in relation to a person subject to this Act when serving under such conditions as may be prescribed, an officer of the Navy or Air Force; but does not include a junior commissioned officer, warrant officer, petty officer or non- commissioned officer;

(xix) ” prescribed” means prescribed by rules made under this Act;

(xx) ” provost- marshal” means a person appointed as such under section 107 and includes any of his deputies or assistants or any other person legally exercising authority under him or on his behalf;

(xxi) ” regular Army” means officers, junior commissioned officers, warrant officers, non- commissioned officers and other enrolled persons who, by their commission, warrant, terms of enrolment or otherwise, are liable to warrant, terms of enrolment or otherwise, are liable to Union in any part of the world, including persons belonging to the Reserve Forces and the Territorial Army when called out on permanent service;

(xxii) ” regulation” includes a regulation made under this Act;

(xxiii) ” superior officer”, when used in relation to a person subject to this Act, includes a junior commissioned officer, warrant officer and a non- commissioned officer, and, as regards persons placed under his orders, an officer, warrant officer, petty officer and non- commissioned officer of the Navy or Air Force;

(xxiv) ” warrant officer” means a person appointed, gazetted or in pay as a warrant officer of the regular Army or of the Indian Reserve Forces, and includes a warrant officer of the Indian Supplementary Reserve Forces or of the Territorial Army [ who is for the time being subject to this Act;

(xxv) [ all words (except the word” India”)] and expressions used but not defined in this Act and defined in the Indian Penal Code (45 of 1860 ) shall be deemed to have the meanings assigned to them in that Code. CHAP SPECIAL PROVISIONS FOR THE APPLICATION OF ACT IN CERTAIN CASES. CHAPTER II SPECIAL PROVISIONS FOR THE APPLICATION OF ACT IN CERTAIN CASES

——————–

1. Subs. by Act 19 of 1955. s. 2 and Sch., for cl. (iv)

2. The words” other than the State of Jammu and Kashmir” omitted by Act 13 of 1975, s. 3 (w. e. f. 25- 1- 1975 ).

3. The words” or a junior or equivalent commission in the land forces of a Part B State” omitted by the Adaptation of Laws (No. 3) Order, 1956,

4. The words” or the land forces of a Part B State” omitted, by the Adaptation of Laws (No. 3) Order. 1956.

5. Sub- clause (e) omitted, ibid,

6. The words” or of the land forces of a Part B State” omitted by the Adaptation of Laws (No. 3) Order, 1956.

7. Subs. by Act 13 of 1975, s. 3. for” all words” (w. e. f. 25- 1- 1975 ).
 

Section 4. Application of Act to certain forces under Central Government

(1) The Central Government may, by notification, apply, with or without modifications, all or any of the provisions of this Act to any force raised and maintained in India under the authority of that Government and suspend the operation of any other enactment for the time being applicable to the said force.

(2) The provisions of this Act so applied shall have effect in respect of persons belonging to the said force as they have effect in respect of persons subject to this Act holding in the regular Army the same or equivalent rank as the aforesaid persons hold for the time being in the said force.

(3) The provisions of this Act so applied shall also have effect in respect of persons who are employed by or are in the service of or are followers of or accompany any portion of the said force as they have effect in respect of persons subject to this Act under clause (i) of sub- section (1) of section (2)].

(4) While any of the provisions of this Act apply to the said force, the Central Government may, by notification, direct by what authority any jurisdiction, powers or duties incident to the operation of these provisions shall be exercised or performed in respect of the said force.

——————–

1. The words” including any force maintained by a Part B State” omitted by the Adaptation of Laws (No. 3) Order, 1956.

2. Subs. by Act 56 of 1974, s. 3 and Sch. II, for” clause (i) of section”.
 

Section 5. Application of Act to forces of Part B States

Rep. by the Adaptation of Laws (No. 3) Order, 1956 .
 

Section 6. Special provision as to rank in certain cases

(1) The Central Government may, by notification, direct that any persons or class of persons subject to this Act under clause (i), of sub- section (1) of section 2] shall be so subject as officers, junior commissioned officers, warrant officers or non- commissioned officers and may authorise any officer to give a like direction and to cancel such direction.

(2) All persons subject to this Act other than officers, junior commissioned officers, warrant officers and non- commissioned officers shall, if they are not persons in respect of whom a notification or direction under sub- section (1) is in force, be deemed to be of a rank inferior to that of a non- commissioned officer.

——————–

1. Subs. by Act 56 of 1974, s. 3 and Sch. II, for” clause (i) of section”.
 

Section 7. Commanding officer of persons subject to military law under clause (i) of section 2

(1) Every person subject to this Act under clause (i) of subsection (1) of section 2] shall, for the purposes of this Act, be deemed to be under the commanding officer of the corps, department of detachment, if any, to which he is attached, and, if he is not so attached, under the command of any officer who may for the time being be named as his commanding officer by the officer commanding the force with which such person for the time being is serving, or any other prescribed officer, or, if no such officer is named or prescribed, under the command of the said officer commanding the force.

(2) An officer commanding a force shall not place a person subject to this Act under [ clause (i) of sub- section (1) of section 2] under the command of an officer of rank inferior to that of such person, if there is present at the place where such person is any officer of a higher rank under whose command he can be placed.

——————–

1. Subs. by Act 56 of 1974, s. 3 and Sch. II, for” clause (i) of section”.

2. Subs. by Act 58 of 1974, s. 3 and Sch. II, for” clause (i) of section 2″.
 

Section 8. Officers exercising powers in certain cases

(1) Whenever persons subject to this Act are serving under an officer commanding any military Organisation, not in this section specifically named and being in the opinion of the Central Government not less than a brigade, that Government may prescribe the officer by whom the powers, which under this Act may be exercised by officers commanding armies, army corps, divisions and brigades, shall, as regards such, persons, be exercised.

(2) The Central Government may confer such powers, either absolutely or subject to such restrictions, reservations, exceptions and conditions, as it may think fit.
 

Section 9. Power to declare persons to be on active service

Notwithstanding anything contained in clause (i) of section 3, the Central Government may, by notification, declare that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to any provision of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act. CHAP COMMISSION, APPOINTMENT AND ENROLMENT. CHAPTER III COMMISSION, APPOINTMENT AND ENROLMENT
 

Section 10. Commission and appointment

The President may grant, to such person as he thinks fit, a commission as, an officer, or as a junior commissioned officer or appoint any person, as a warrant officer of the regular Army.
 

Section 11. Ineligibility of aliens for enrolment

No person who is not a citizen of India shall, except with the consent of the Central Government signified in writing, be enrolled in the regular Army: Provided that nothing contained in this section shall bar the enrolment of the subjects of Nepal in the regular Army.
 

Section 12. Ineligibility of females for enrolment or employment

No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf: Provided that nothing contained in this section shall affect the provisions of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the regular Army, or any branch thereof in which females are eligible for enrolment or employment.
 

Section 13. Procedure before enrolling officer

Upon the appearance before the prescribed enrolling officer of any person desirous of being enrolled, the enrolling officer shall read and explain to him, or cause to be read and explained to him in his presence, the conditions of the service for which he is to be enrolled; and shall put to him the questions set forth in the prescribed form of enrolment, and shall, after having cautioned him that if he makes a false answer to any such question, he will be liable to punishment under this Act, record or cause to be recorded his answer to each such question.
 

Section 14. Mode of enrolment

If, after complying with the provisions of section 13, the enrolling officer is satisfied that the person desirous of being enrolled fully understands the questions put to him and consents to the conditions of service, and if such officer perceives no impediment, he shall sign and shall also cause such person to sign the enrolment paper, and such person shall thereupon be deemed to be enrolled.
 

Section 15. Validity of enrolment

Every person who has for the space of three months been in receipt of pay as a person enrolled under this Act and been borne on the rolls of any corps or department shall be deemed to have been duly enrolled, and shall not be entitled to claim his discharge on the ground of any irregularity or illegality in his enrolment or on any other ground whatsoever; and if any person, in receipt of such pay and borne on the rolls as aforesaid, claims his discharge before the expiry of three months from his enrolment, no such irregularity or illegality or other ground shall, until he is discharged in pursuance of his claim, affect his position as an enrolled person under this Act or invalidate any proceeding, act or thing taken or done prior to his discharge.
 

Section 16. Persons to be attested

The following persons shall be attested, namely:-

(a) all persons enrolled as combatants;

(b) all persons selected to hold a non- commissioned or acting non- commissioned rank; and

(c) all other persons subject to this Act as may be prescribed by the Central Government.
 

Section 17. Mode of attestation

(1) When a person who is to be attested is reported fit for duty, or has completed the prescribed period of probation, an oath or affirmation shall be administered to him in the prescribed form by his commanding officer in front of his corps or such portion thereof or such members of his department as may be present, or by any other prescribed person.

(2) The form of oath or affirmation prescribed under this section shall contain a promise that the person to be attested will bear true allegiance to the Constitution of India as by law established, and that he will serve in the regular Army and go wherever he is ordered by land, sea or air, and that he will obey all commands of any officer set over him, even to the peril of his life.

(3) The fact of an enrolled person having taken the oath or affirmation directed by this section to be taken shall be entered on his enrolment paper, and authenticated by the signature of the officer administering the oath or affirmation. CHAP CONDITIONS OF SERVICE. CHAPTER IV CONDITIONS OF SERVICE
 

Section 18. Tenure of service under the Act

Every person subject to this Act shall hold office during the pleasure of the President.
 

Section 19. Termination of service by Central Government

Subject to the provisions of this Act and the rules and regulations made thereunder the Central Government may dismiss, or remove from the service, any person subject to this Act.
 

Section 20. Dismissal, removal or reduction by the Chief of the Army Staff and by other officers

(1) The Chief of the Army Staff] may dismiss or remove from the service any person subject to this Act other than an officer.

(2) The Chief of the Army Staff] may reduce to a lower grade or rank or the ranks, any warrant officer or any non- commissioned officer.

(3) An officer having power not less than a brigade or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer or a junior commissioned officer.

(4) Any such officer as is mentioned in sub- section (3) may reduce to a lower grade or rank or the ranks, any warrant officer or any noncommissioned officer under his command.

(5) A warrant officer reduced to the ranks under this section shall not, however, be required to serve in the ranks as a sepoy.

(6) The commanding officer of an acting non- commissioned officer may order him to revert to his permanent grade as a non- commissioned officer, or if he has no permanent grade above the ranks, to the ranks.

(7) The exercise of any power under this section shall be subject to the said provisions contained in this Act and the rules and regula- tions made thereunder.

——————–

1. Subs. by Act 19 of 1955, s. 2 and Sch., for” The Commander- in- Chief”.

 

Section 21. Power to modify certain fundamental rights in their application to persons subject to this Act

Subject to the provisions of any law for the time being in force relating to the regular Army or to any branch thereof, the Central Government may, by notification, make rules restricting to such extent and in such manner as may be necessary the right of any person subject to this Act-

(a) to be a member of, or to be associated in any way with, any trade union or labour union, or any class of trade or labour unions or any society, institution or association, or any class of societies, institutions or associations

(b) to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes

(c) to communicate with the press or to publish or cause to be published any book, letter or other document.
 

Section 22. Retirement, release or discharge

Any person subject to this Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed.
 

Section 23. Certificate on termination of service

Every junior commissioned officer, warrant officer, or enrolled person who is dismissed, removed, discharged, retired or released from the service shall be furnished by his commanding officer with a certificate, in the language which is the mother tongue of such person and also in the English language setting forth-

(a) the authority terminating his service

(b) the cause for such termination; and

(c) the full period of his service in the regular Army.
 

Section 24. Discharge or dismissal when out of India (Army Act 1950)

(1) Any person enrolled under this Act who is entitled under the conditions of his enrolment to be discharged, or whose discharge is ordered by competent authority, and who, when he is so entitled or ordered to be discharged, is serving out of India, and requests to be sent to India, shall, before being discharged, be sent to India with all convenient speed.

(2) Any person enrolled under this Act who is dismissed from the service and who, when he is so dismissed, is serving out of India, shall be sent to India with all convenient speed.

(3) Where any such person as is mentioned in sub- section (2) is sentenced to dismissal combined with any other punishment, such other punishment, or, in the case of a sentence of transportation or imprisonment, a portion of such sentence may be inflicted before he is sent to India.

(4) For the purposes of this section, the word” discharge” shall’ include release, and the word” dismissal” shall include removal. CHAP SERVICE PRIVILEGES. CHAPTER V SERVICE PRIVILEGES
 

Section 25. Authorised deductions only to be made from pay

The pay of every person subject to this Act due to him as such under any regulation for the time being in force shall be paid without any deduction other than the deductions authorised by or under this or any other Act.
 

Section 26. Remedy of aggrieved persons other than officers

(1) Any person subject to this Act other than an officer who deems himself wronged by any superior or other officer may, if not attached to a troop or company, complain to the officer under whose command or orders he is serving; and may, if attached to a troop or company, complain to the officer commanding the same.

(2) When the officer complained against is the officer to whom any complaint should, under sub- section (1), be preferred, the aggrieved person may complain to such officer’ s next superior officer.

(3) Every officer receiving any such complaint shall make as complete an investigation into it as may be possible for giving full redress to the complainant; or, when necessary, refer the complaint to superior authority.

(4) Every such complaint shall be preferred in such manner as may from time to time be specified by the proper authority.

(5) The Central Government may revise any decision by 1[ the Chief of the Army Staff] under sub- section (2), but, subject thereto, the decision of 1[ the Chief of the Army Staff] shall be final.

Section 27. Remedy of aggrieved officers (Army Act 1950)

Any officer who deems himself wronged by his commanding officer or any superior officer and who on due application made to his commanding officer does not receive the redress to which he considers himself entitled, may complain to the Central Government in such manner as may from time to time be specified by the proper authority.
 

Section 28. Immunity from attachment

Neither the arms, clothes, equipment, accoutrements or necessaries of any person subject to this Act, nor any animal used by him for the discharge of his duty, shall be seized, nor shall the pay and allowances of any such person or any part thereof be attached, by direction of any civil or revenue court or any revenue officer in satisfaction of any decree or order enforceable against him.
 

Section 29. Immunity from arrest for debt

(1) No person subject to this Act shall, so long as he belongs to the Forces, be liable to be arrested for debt under any process issued by, or by the authority of, any civil or revenue court or revenue officer.

(2) The judge of any such court or the said officer may examine into any complaint made by such person or his superior officer of the arrest of such person contrary to the provisions of this section and may, by warrant under his hand, discharge the person, and award reasonable costs to the complainant, who may recover those costs in like manner as he might have recovered costs awarded to him by a decree against the person obtaining the process.

(3) For the recovery of such costs no court- fee shall be payable by the complainant.
 

Section 30. Immunity of persons attending courts- martial from arrest

(1) No presiding officer or member of a court- martial, no judge advocate, no party to any proceeding before a court- martial, or his legal practitioner or agent, and no witness acting in obedience to a summons to attend a court- martial shall, while proceeding to, attending or returning from, a court- martial, be liable to arrest under civil or revenue process.

(2) If any such person is arrested under any such process, he may be discharged by order of the court- martial.
 

Section 31. Privileges of reservists

Every person belonging to the Indian Reserve Forces shall, when called out for or engaged in or returning from, training or service, be entitled to all the privileges accorded by sections 28 and 29 to a person subject to this Act.
 

Section 32. Priority in respect of army personnel’ s litigation

(1) On the presentation to any court by or on behalf of any person subject to this Act of a certificate from the proper military authority of leave of absence having been granted to or applied for by him for the purpose of prosecuting or defending any suit or other proceeding in such court, the court shall, on the application of such person, arrange, so far as may be possible, for the hearing and final disposal of such suit or other proceeding within the period of the leave so granted or applied for.

(2) The certificate from the proper military authority shall state the first and last day of the leave or intended leave, and set forth a description of the case with respect to which the leave was granted or applied for.

(3) No fee shall be payable to the court in respect of the presentation of any such certificate, or of any application by or on behalf of any such person, for priority for the hearing of his case.

(4) Where the court is unable to arrange for the hearing and final disposal of the suit or other proceeding within the period of such leave or intended leave as aforesaid, it shall record its reasons for its inability to do so, and shall cause a copy thereof to be furnished to such person on his application without any payment whatever by him in respect either of the application for such copy or of the copy itself.

(5) If in any case a question arises as to the proper military authority qualified to grant such certificate as aforesaid, such question shall at once be referred by the court to an officer having power not less than a brigade or equivalent commander whose decision shall be final.
 

Section 33. Saving of rights and privileges under other laws

The rights and privileges specified in the preceding sections of this Chapter shall be in addition to, and not in derogation of, any other rights and privileges conferred on persons subject to this Act or on members of the regular Army, Navy and Air Force generally by any other law for the time being in force. CHAP OFFENCES. CHAPTER VI OFFENCES
 

Section 34. Offences in relation to the enemy and punishable with death

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) shamefully abandons or delivers up any garrison, fortress, post, place or guard, committed to his charge, or which it is his duty to defend, or uses any means to compel or induce any commanding officer or other person to commit any of the said acts; or

(b) intentionally uses any means to compel or induce any person subject to military, naval or air force law to abstain from acting against the enemy, or to discourage such person from acting against the enemy; or

(c) in the presence of the enemy, shamefully casts away his arms, ammunition, tools or equipment or misbehaves in such manner as to show cowardice; or

(d) treacherously holds correspondence with, or communicates intelligence to, the enemy or any person in arms against the Union; or

(e) directly or indirectly assists the enemy with money, arms., ammunition, stores or supplies; or

(f) treacherously or through cowardice sends a flag of truce to the enemy; or

(g) in time of war or during any military operation, intentionally occasions a false alarm in action, camp, garrison or quarters, or spreads reports calculated to create alarm or despondency; or

(h) in time of action leaves his commanding officer or his post, guard, picquet, patrol or party without being regularly relieved or without leave; or

(i) having been made a prisoner of war, voluntarily serves with or aids the enemy; or

(j) knowingly harbours or protects an enemy not being a prisoner; or

(k) being a sentry in time of war or alarm, sleeps upon his post or is intoxicated; or

(l) knowingly does any act calculated to imperil the success of the military, naval or air forces of India or any forces co- operating therewith or any part of such forces; shall, on conviction by court- martial, be liable to suffer death or such less punishment as is in this Act mentioned.
 

Section 35. Offences in relation to the enemy and not punishable with death

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) is taken prisoner, by want of due precaution, or through disobedience of orders, or wilful neglect of duty, or having been taken prisoner, fails to rejoin his service when able to do so; or

(b) without due authority holds correspondence with or communicates intelligence to the enemy or having come by the knowledge of any such correspondence or communication, wilfully omits to discover it immediately to his commanding or other superior officer; or

(c) without due authority sends a flag of truce to the enemy; shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned.
 

Section 36. Offences punishable more severely on active service than at other times

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) forces a safeguard, or forces or uses criminal force to a sentry; or

(b) breaks into any house or other place in search of plunder; or

(c) being a sentry sleeps upon his post, or is intoxicated; or

(d) without orders from his superior officer leaves his guard, picquet, patrol or post; or

(e) intentionally or through neglect occasions a false alarm in camp, garrison, or quarters; or spreads reports calculated to create unnecessary alarm or despondency; or

(f) makes known the parole, watchword or countersign to any person not entitled to receive it; or knowingly gives a parole, watchword or countersign different from what he received; shall, on conviction by court- martial, if he commits any such offence when on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and if he commits any such offence when not on active service, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.
 

Section 37. Mutiny

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) begins, incites, causes, or conspires with any other persons to cause any mutiny in the military, naval or air forces of India or any forces co- operating therewith; or

(b) joins in any such mutiny; or

(c) being present at any such mutiny, does not use his utmost endeavours to suppress the same; or

(d) knowing or having reason to believe in the existence of any such mutiny, or of any intention to mutiny or of any such conspiracy, does not, without delay, give information thereof to his commanding or other superior officer; or

(e) endeavours to seduce any person in the military, naval. or air forces of India from his duty or allegiance to the Union; shall, on conviction by court- martial, be liable to suffer death or such less punishment as is in this Act mentioned.
 

Section 38. Desertion and aiding desertion

(1) Any person subject to this Act who deserts or attempts to desert the service shall, on conviction by court- martial, if he commits the offence on active service or when under orders for active service, be liable to suffer death or such less punishment as is in this Act mentioned; and if he commits the offence under any other circumstances, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

(2) Any person subject to this Act who, knowingly harbours any such deserter shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

(3) Any person subject to this Act who, being cognizant of any desertion or attempt at desertion of a person subject to this Act, does not forthwith give notice to his own or some other superior officer, or take any steps in his power to cause such person to be apprehended, shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.
 

Section 39. Absence without leave

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) absents himself without leave; or

(b) without sufficient cause overstays leave granted to him; or

(c) being on leave of absence and having received information from proper authority that any corps, or portion of a corps, or any department, to which he belongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay; or

(d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or

(e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or

(f) when in camp or garrison or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or

(g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there; shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.
 

Section 40. Striking or threatening superior officers

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) uses criminal force to or assaults his superior officer; or

(b) uses threatening language to such officer; or

(c) uses insubordinate language to such officer; shall, on conviction by court- martial, if such officer is at the time in the execution of his office or, if the offence is committed on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and in other cases, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned: Provided that in the case of an offence specified in clause (c), the imprisonment shall not exceed five years.
 

Section 41. Disobedience to superior officer

(1) Any person subject to this Act who disobeys in such manner as to show a wilful defiance of authority any lawful command given personally by his superior officer in the execution of his office whether the same is given orally, or in writing or by signal or otherwise shall on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned.

(2) Any person subject to this Act who disobeys any lawful com- mand given by his superior officer shall, on conviction by court- martial, if he commits such offence when on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and if he commits such offence when not on active service, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.
 

Section 42. Insubordination and obstruction

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) being concerned in any quarrel, affray, or disorder, refuses to obey any officer, though of inferior rank, who orders him into arrest, or uses criminal force to or assaults any such officer; or

(b) uses criminal force to, or assaults any person, whether subject to this Act or not, in whose custody he is lawfully placed, and whether he is or is not his superior officer; or

(c) resists an escort whose duty it is to apprehend him or to have him in charge; or

(d) breaks out of barracks, camp or quarters; or

(e) neglects to obey any general, local or other order; or

(f) impedes the provost- marshal or any person lawfully acting on his behalf, or when called upon, refuses to assist in the execution of his duty a provost- marshal or any person lawfully acting on his behalf; or

(g) uses criminal force to or assaults any person bringing provisions or supplies to the forces; shall, on conviction by court- martial, be liable to suffer imprison- ment for a term which may extend, in the case of the offences specified in clauses (d) and (e) to two years, and in the case of the offences specified in the other clauses to ten years or such less punishment as is in this Act mentioned.
 

Section 43. Fraudulent enrolment

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) without having obtained a regular discharge from the corps or department to which he belongs, or otherwise fulfilled the conditions enabling him to enrol or enter, enrols himself in, or enters the same or any other corps or department or any part of the naval or air forces of India or the Territorial Army; or

(b) is concerned in the enrolment in any part of the Forces of any person when he knows or has reason to believe such person to be so circumstanced that by enrolling he commits an offence against this Act; shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.
 

Section 44. False answers on enrolment

Any person having become subject to this Act who is discovered to have made at the time of enrolment a wilfully false answer to any question set forth in the prescribed form of enrolment which has been put to him by the enrolling officer before whom he appears for the purpose of being enrolled shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.
 

Section 45. Unbecoming conduct

Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court- martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.
 

Section 46. Certain forms of disgraceful conduct

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind; or

(b) malingers, or feigns, or produces disease or infirmity in himself, or intentionally delays his cure or aggravates his disease or infirmity; or

(c) with intent to render himself or any other person unfit for service, voluntarily causes hurt to himself or that person; shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.
 

Section 47. Ill- treating a subordinate

Any officer, junior commissioned officer, warrant officer or non- commissioned officer who uses criminal force to or otherwise illtreats any person subject to this Act, being his subordinate in rank or position, shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.
 

Section 48. Intoxication

(1) Any person subject to this Act who is found in a state of intoxication, whether on duty or not, shall, on conviction by court- martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is not an officer, be liable, subject to the provisions of sub- section (2), to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.

(2) Where an offence of being intoxicated is committed by a person other than an officer when not on active service or not on duty, the period of imprisonment awarded shall not exceed six months.
 

Section 49. Permitting escape of person in custody

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) when in command of a guard, picquet, patrol or post, releases without proper authority, whether wilfully or without reasonable excuse, any person committed to his charge, or refuses to receive any prisoner or person so committed; or

(b) wilfully or without reasonable excuse allows to escape any person who is committed to his charge, or whom it is his duty to keep or guard; shall, on conviction by court- martial, be liable, if he has acted wilfully to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and if he has not acted wilfully, to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.
 

Section 50. Irregularity in connection with arrest or confinement

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) unnecessarily detains a person in arrest or confinement without bringing him to trial, or fails to bring his case before the proper authority for investigation; or

(b) having committed a person to military custody fails without reasonable cause to deliver at the time of such com- mittal, or as soon as practicable, and in any case within forty- eight hours. thereafter, to the officer or other person into whose custody the person arrested is committed, an account in writing signed by himself of the offence with which the person so committed is charged; shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.
 

Section 51. Escape from custody

Any person subject to this Act who, being in lawful custody, escapes or attempts to escape, shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.
 

Section 52. Offences in respect of property

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) commits theft of any property belonging to the Government, or to any military, naval or air force mess, band or institution, or to any person subject to military, naval or air force law; or

(b) dishonestly misappropriates or converts to his own use any such property; or

(c) commits criminal breach of trust in respect of any such property; or

(d) dishonestly receives or retains any such property in respect of which any of the offences under clauses (a), (b) and (c) has been committed, knowing or having reason to believe the commission of such offence; or

(e) wilfully destroys or injures any property of the Government entrusted to him; or

(f) does any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person; shall, on conviction by court- martial, be liable to suffer imprison- ment for a term which may extend to ten years or such less punishment as is in this Act mentioned.
 

Section 53. Extortion and corruption

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) commits extortion; or

(b) without proper authority exacts from any person money, provisions or service; shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned.
 

Section 54. Making away with equipment

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) makes away with, or is concerned in making away with, any arms, ammunition, equipment, instruments. tools, clothing or any other thing being the property of the Government issued to him for his use or entrusted to him; or

(b) loses by neglect anything mentioned in clause (a); or

(c) sells, pawns, destroys or defaces any medal or decoration granted to him;

shall, on conviction by court- martial, be liable to suffer imprison- ment for a term which may extend in the case of the offences specified in clause (a) to ten years, and in the case of the offences specified in the other clauses to five years, or such less punishment as is in this Act mentioned.
 

Section 55. Injury to property

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) destroys or injures any property mentioned in clause (a) of section 54 or any property belonging to any military, naval or air force mess, band or institution, or to any person subject to military, naval or air force law, or serving with, or attached to, the regular Army; or

(b) commits any act which causes damage to, or destruction of, any property of the Government by fire; or

(c) kills, injures, makes away with, ill- treats or loses any, animal entrusted to him; shall, on conviction by court- martial, be liable, if he has acted wil- fully, to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and if he has acted without reasonable excuse, to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.
 

Section 56. False accusations

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) makes a false accusation against any person subject to this Act, knowing or having reason to believe such accusation to be false; or

(b) in making a complaint under section 26 or section 27 makes any statement affecting the character of any person subject to this Act, knowing or having reason to believe such statement to be false or knowingly and wilfully suppresses any material facts; shall, on conviction by court- martial be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.
 

Section 57. Falsifying official documents and false declaration

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) in any report, return, list, certificate, book or other document made or signed by him, or of the contents of which it is his duty to ascertain the accuracy, knowingly makes,

or is privy to the making of any false or fraudulent statement; or

(b) in any document of the description mentioned in clause (a) knowingly makes, or is privy to the making of, any omission, with intent to defraud; or

(c) knowingly and with intent to injure any person, or knowingly and with intent to defraud, suppresses, defaces, alters or makes away with any document which it is his duty to preserve or produce; or

(d) where it is his official duty to make a declaration respecting any matter, knowingly makes a false declaration; or

(e) obtains for himself, or for any other person, any pension, allowance or other advantage or privilege by a state- ment which is false, and which he either knows or believes to be false or does not believe to be true, or by making or using a false entry in any book or record or by making any document containing a false statement, or by omitting to make a true entry or document containing a true statement; shall, on conviction by court- martial, be liable to suffer imprison- ment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned.
 

Section 58. Signing in blank and failure to report

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) when signing any document relating to pay, arms, ammunition, equipment, clothing, supplies or stores, or any,. property of the Government fraudulently leaves in blank any material part for which his signature is a voucher; or

(b) refuses or by culpable neglect omits to make or send a report or return which it is his duty to make or send; shall, on conviction by court- martial, be liable to suffer imprison- ment for a term which may extend to seven years or such less punishment as is in this Act mentioned.
 

Section 59. Offences relating to courts- martial

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) being duly summoned or ordered to attend as a witness before a court martial, wilfully or without reasonable excuse, makes default in attending; or

(b) refuses to take an oath or make an affirmation legally required by a court- martial to be taken or made; or

(c) refuses to produce or deliver any document in his power or control legally required by a court- martial to be produced or delivered by him; or

(d) refuses when a witness to answer any question which he is by law bound to answer; or

(e) is guilty of contempt of court- martial by using insulting or threatening language, or by causing any interruption or disturbance in the proceedings of such court; shall, on conviction by court- martial, be liable to suffer imprison- ment for a term which may extend to three years or such less punishment as is in this Act mentioned.
 

Section 60. False evidence

Any person subject to this Act who, having been duly sworn or affirmed before any court- martial or other court competent under this Act to administer an oath or affirmation, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.
 

Section 61. Unlawful detention of pay

Any officer, junior commissioned officer, warrant officer or non- commissioned officer who, having received the pay of a person subject to this Act unlawfully detains or refuses to pay the same when due, shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned.
 

Section 62. Offences in relation to aircraft and flying

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) wilfully or without reasonable excuse damages, destroys or loses any aircraft or aircraft material belonging to the Government: or

(b) is guilty of any act or neglect likely to cause such damage, destruction or loss; or

(c) without lawful authority disposes of any aircraft or aircraft material belonging to the Government; or

(d) is guilty of any act or neglect in flying, or in the use of any aircraft, or in relation to any aircraft or aircraft material, which causes or is likely to cause loss of life or bodily injury to any person; or

(e) during a state of war, wilfully and without proper occasion, or negligently, causes the sequestration, by or under the authority of a neutral State, or the destruction in a neutral State of any aircraft, belonging to the Government

shall, on conviction by court- martial, be liable, if he has acted wil- fully, to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned, and, in any other case, to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.
 

Section 63. Violation of good order and discipline

Any person subject to this Act who is guilty of any act or omission which, though not specified in this Act, is prejudicial to good order and military discipline shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.
 

Section 64. Miscellaneous offences

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) being in command at any post or on the march, and receiving a complaint that any one under his command has beaten or otherwise maltreated or oppressed any person, or has disturbed any fair or market, or committed any riot or trespass, fails to have due reparation made to the injured person or to report the case to the proper authority; or

(b) by defiling any place of worship, or otherwise, intentionally insults the religion or wounds the religious feelings of any person; or

(c) attempts to commit suicide, and in such attempt does any act towards the commission of such offence; or

(d) being below the rank of warrant officer, when off duty, appears without proper authority, in or about camp or cantonments, or in or about, or when going to or returning from, any town or bazar, carrying a rifle, sword or other offensive weapon; or

(e) directly or indirectly accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any gratification as a motive or reward for procuring the enrolment’ of any person, or leave of absence, promotion or any other advantage or indulgence for any person in the service; or

(f) commits any offence against the property or person of any inhabitant of, or resident in, the country in which he is serving; shall, on conviction by court- martial, be liable to suffer imprison- ment for a term which may extend to seven years or such less punishment as is in this Act mentioned.
 

Section 65. Attempt

Any person subject to this Act who attempts to commit any of the offences specified in sections 34 to 64 inclusive and in such attempt does any act towards the commission of the offence, shall, on conviction by court- martial, where no express provision is made by this Act for the punishment of such attempt, be liable, if the offence attempted to be committed is punishable with death, to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and if the offence attempted to be committed is punishable with imprisonment, to suffer imprisonment for a term which may extend to one- half of the longest term provided for that offence or such less punishment as is in this Act mentioned.
 

Section 66. Abetment of offences that have been committed

Any person subject to this Act who abets the commission of any of the offences specified in sections 34 to 64 inclusive shall, on conviction by court- martial, if the Act abetted is committed in consequence of the abetment and no express provision is made by this Act for the punishment of such abetment, be liable to suffer the punishment provided for that offence or such less punishment as is in this Act mentioned.
 

Section 67. Abetment of offences punishable with death and not committed

Any person subject to this Act who abets the commission of any of the offences punishable with death under sections 34, 37 and sub- section

(1) of section 38 shall, on conviction by court- martial, if that offence be not committed in consequence of the abetment, and no express provision is made by this Act for the punishment of such abetment, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned.
 

Section 68. Abetment of offences punishable with imprisonment and not committed

Any person subject to this Act who abets the commission of any of the offences specified in sections 34 to 64 inclusive and punishable with imprisonment shall, on conviction by court- martial, if that offence be not committed in consequence of the abetment, and no express provision is made by this Act for the punishment of such abetment, be liable to suffer imprisonment for a term which may extend to one- half of the longest term provided for that offence or such less punishment as is in this Act mentioned.
 

Section 69. Civil offences

Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court- martial and, on conviction, be punishable as follows, that is to say,-

(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and

(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.
 

Section 70. Civil offence not triable by court- martial

A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court- martial, unless he commits any of the said offences-

(a) while on active service, or

(b) at any place outside India, or

(c) at a frontier post specified by the Central Government by notification in this behalf. 1[ CHAP PUNISHMENTS. CHAPTER VII PUNISHMENTS

——————–

1. Explanation omitted by Act 13, of 1975, s. 3 (w. e. f. 15- 1- 1975 ).
 

Section 71. Punishments awardable by courts- martial

Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by courts- martial, according to the scale following, that is to say,-

(a) death;

(b) transportation for life or for any period not less than seven years;

(c) imprisonment, either rigorous or simple, for any period not exceeding fourteen years;

(d) cashiering, in the case of officers;

(e) dismissal from the service;

(f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers; and reduction to the ranks or to a lower rank or grade, in the case of non- commissioned officers: Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy;

(g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and noncommissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length of service;

(h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;

(i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and noncommissioned officers;

(j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;

(k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal;

(l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.
 

Section 72. Alternative punishments awardable by court- martial

Subject to the provisions of this Act, a court- martial may, on convicting a person subject to this Act of any of the offences specified in sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the scale set out in section 71, regard being had to the nature and degree of the offence.
 

Section 73. Combination of punishments

A sentence of a court- martial may award in addition to, or without any one other punishment, the punishment specified in clause (d) or clause (e) of section 71 and any one or more of the punishments specified in clauses (f) to (l) of that section.
 

Section 74. Cashiering of officers

An officer shall be sentenced to be cashiered before he is awarded any of the punishments specified in clauses (a) to (c) of section 71. 1[

——————–

1. Omitted by Act 37 of 1992, s. 2
 

Section 75. *****

*****
 

Section 76. *****

*****
 

Section 77. Result of certain punishments in the case of a warrant officer or non- commissioned officer

A warrant officer or a non- commissioned officer sentenced by a court- martial to transportation, imprisonment, 1[ or dismissal from the service, shall be deemed to be reduced to ranks.

——————–

1. Omitted by Act 37 of 1992, s. 3.
 

Section 78. Retention in the ranks of a person convicted on active service

When., on active service, any enrolled person has been sen- tenced by a court- martial to dismissal, or to transportation or im- prisonment whether combined with dismissal or not, the prescribed officer may direct that such person may be retained to serve in the ranks, and such service shall be reckoned as part of his term of transportation or imprisonment, if any.
 

Section 79. Punishments otherwise than by court- martial

Punishments may also be inflicted in respect of offences committed by persons subject to this Act without the intervention of a court- martial and in the manner stated in sections 80, 83, 84 and 85.
 

Section 80. Punishment of persons other than officers, junior commissioned officers and warrant officers

Subject to the provisions of section 81, a commanding officer or such other officer as is, with the consent of the Central Government, specified by 1[ the Chief of the Army Staff], may, in the prescribed manner, proceed against a person subject to this Act other. wise than as an officer, junior commissioned officer or warrant officer who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say,-

(a) imprisonment in military custody up to twenty- eight days;

(b) detention up to twenty- eight days;

(c) confinement to the lines up to twenty- eight days;

(d) extra guards or duties;

(e) deprivation of a, position of the nature of an appointment or of corps or working pay, and in the case of noncommissioned officers, also deprivation of acting rank or reduction to a lower grade of pay;

(f) forfeiture of good service and good conduct pay

(g) severe reprimand or reprimand

(h) fine up to fourteen days’ pay in any one month;

(i) penal deductions under clause (g) of section 91

——————–

1. Subs. by Act 19 of 1955. s. 2 and Sch., for” the Commander- in- Chief”.
 

Section 81. Limit of punishments under section 80

Limit of punishments under section 80. 1[ . (2) In the case of an award of two or more of the punishments specified in clauses (a), (b), (c) and (d) of the said section, the punishment specified in clause (c) or clause (d) shall take effect only at the end of the punishment specified in clause (a) or clause (b).

(3) When two or more of the punishments specified in the said clauses (a), (b) and (c) are awarded to a person conjointly, or when already undergoing one or more of the said punishments, the whole extent of the punishments shall not exceed in the aggregate forty- two days.

(4) The punishments specified in clauses 2[ (a), (b) and (c)] of section 80 shall not be awarded to any person who is of the rank of non- commissioned officer or was, at the time of committing the offence for which he is punished, of such rank.

(5) The punishment specified in clause (g) of the said section shall not be awarded to any person below the rank of a non- commissioned officer.

——————–

1. Omitted by s. 5, ibid.

2. Subs. by s. 5, ibid.
 

Section 82. Punishments in addition to those specified in section 80

1[The Chief of the Army Staff] may, with the consent of the Central Government, specify such other punishments as may be awarded under section 80 in addition to or without any of the punishments specified in the said section, and the extent to which such other punishments may be awarded.

——————–

1. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.
 

Section 83. Punishment of officers, junior commissioned officers and warrant officers by brigade commanders and others

An officer having power not less than a brigade, or an equivalent commander or such other officer as is, with the consent of the Central Government, specified by 1[ the Chief of the Army Staff] may in the prescribed manner, proceed against an officer below the rank of a field officer, a junior commissioned officer or a warrant officer, who is charged with an offence under this Act, and award one or more of the following punishments, that is to say,-

(a) severe reprimand or reprimand;

(b) stoppage of pay and, allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.

——————–

1. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.
 

Section 84. Punishment of officers, junior commissioned officers and warrant officers by area commanders and others

An officer having power not less than an area commander or an equivalent commander or an officer empowered to convene a general court- martial or such other officer as is, with the consent of the Central Government, specified by 1[ the Chief of the Army Staff] may, in the prescribed manner, proceed against an officer below the rank of lieutenant- colonel, a junior commissioned officer or a warrant officer, who is charged with an offence under this Act, and award one or more of the following punishments, that is to say,-

(a) forfeiture of seniority, or in the case of any of them whose promotion depends upon length of service, forfeiture of service for the purpose of promotion for a period not exceeding twelve months, but subject to the right of the accused previous to the award to elect to be tried by a court- martial;

(b) severe reprimand or reprimand;

(c) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.

——————–

1. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.
 

Section 85. Punishment of junior commissioned officers

A commanding officer or such other officer as is, with the consent of the Central Government, specified by1[ the Chief of the Army Staff] may, in the prescribed manner, proceed against a junior commissioned officer who is charged with an offence under this Act 2[ and award one or more of the following punishments, that is to say,-

(i) severe reprimand or reprimand;

(ii) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good: Provided that the punishment specified in clause (i) shall not be awarded if the commanding officer or such other officer is below the rank of Colonel]

——————–

1. Subs. by Act 19 of 1955, s. 2 and Sch., for the Commander- in- Chief”.

2. Subs. by Act 37 of 1992, s. 6.
 

Section 86. Transmission of proceedings

In every case in which punishment has been awarded under any of the sections 83, 84 and 85, certified true copies of the proceedings shall be forwarded, in the prescribed manner, by the officer awarding the punishment, to a superior military authority as defined in section 88.
 

Section 87. Review of proceedings

If any punishment awarded under any of the sections 83, 84 and 85 appears to a superior military authority as defined in section 88 to be illegal, unjust or excessive, such authority may cancel, vary or remit the punishment and make such other direction as may be appropriate in the circumstances of the case.
 

Section 88. Superior military authority

For the purpose of sections 86 and 87, a” superior military authority” means-

(a) in the case of punishments awarded by a commanding officer, any officer superior in command to such commanding officer;

(b) in the case of punishments awarded by any other authority, the Central Government, 1[ the Chief of the Army Staff] or other officer specified by 1[ the Chief of the Army Staff]

——————–

1. Subs. by Act 19 of 1955, s. 2 and Sch., for the Commander- in- Chief”.
 

Section 89. Collective fines

(1) Whenever any weapon or part of a weapon forming part of the equipment of a half squadron, battery, company or other similar unit is lost or stolen, the officer commanding the army, army corps, division or independent brigade to which such unit belongs may, after obtaining the report of a court of inquiry, impose a collective fine upon the junior commissioned officers, warrant officers, non- commissioned officers and men of such unit, or upon so many of them as, in his judgment, should be held responsible for such loss or theft.

(2) Such fine shall be assessed as a percentage on the pay of the individuals on whom it falls. CHAP PENAL DEDUCTIONS. CHAPTER VIII PENAL DEDUCTIONS
 

Section 90. Deductions from pay and allowances of officers

The following penal deductions may be made from the pay and allowances of an officer, that is to say,-

(a) all pay and allowances due to an officer for every day he absents himself without leave, unless a satisfactory explanation has been given to his commanding officer and has been approved by the Central Government;

(b) all pay and allowances for every day while he is in custody or under suspension from duty on a charge for an offence for which he is afterwards convicted by a criminal court or a court- martial or by an officer exercising authority under section 83 or section 84;

(c) any sum required to make good the pay of any person subject to this Act which he has unlawfully retained or unlawfully refused to pay;

(d) any sum required to make good such compensation for any expenses, loss, damage or destruction occasioned by the commission of an offence as may be determined by the court- martial by whom he is convicted of such offence, or by an officer exercising authority under section 83 or section 84

(e) all pay and allowances ordered by a court- martial 1[ to be forfeited or stopped;

(f) any sum required to pay a fine awarded by a criminal court or a court- martial exercising jurisdiction under section 69;

(g) any sum required to make good any loss, damage, or destruction of public or regimental property which, after due investigation, appears to the Central Government to have been occasioned by the wrongful act or negligence on the part of the officer;

(h) all pay and allowances forfeited by order of the Central Government if the officer is found by a court of inquiry constituted by 2[ the Chief of the Army Staff] in this behalf, to have deserted to the enemy, or while in enemy hands, to have served with, or under the orders of, the enemy, or in any manner to have aided the enemy, or to have allowed himself to be taken prisoner by the enemy through want of due precaution or through disobedience of orders or wilful neglect of duty, or having been taken prisoner by the enemy, to have failed to rejoin his service when it was possible to do so;

(i) any sum required by order of the Central Government 3[ or any prescribed officers] to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

——————-

1. Omitted by Act 37 of 1992, s. 7.

2. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.

3. Ins. by Act 37 of 1992, s. 7
 

Section 91. Deductions from pay and allowances of persons other than officers

Subject to the provisions of section 94 the following penal deductions may be made from the pay and allowances of a person subject to this, Act other than an officer, that is to say,-

(a) all pay and allowances for every day of absence either on desertion or without leave, or as a prisoner of war, and for every day of transportation or imprisonment awarded by a criminal court, a court- martial or an officer exercising authority under section 80 1[

(b) all pay and allowances for every day while he is in custody on a charge for an offence of which he is afterwards convicted by a criminal court or a court- martial, or on a charge of absence without leave for which he is afterwards awarded imprisonment 1[ by an officer exercising authority under section 80;

(c) all pay and allowances for every day on which he is in hospital on account of sickness certified by the medical officer attending on him to have been caused by an offence under this Act committed by him;

(d) for every day on which he is in hospital on account of sickness certified by the medical officer attending on him to have been caused by his own misconduct or imprudence, such sum as may be specified by order of the Central Government or such officer as may be specified by that Government;

(e) all pay and allowances ordered by a court- martial or by an officer exercising authority under any of the sections 80, 83, 84 and 85, to be forfeited or stopped;

(f) all pay and allowances for every day between his being recovered from the enemy and his dismissal from the service in consequence of his conduct when being taken prisoner by, or while in the hands of, the enemy;

(g) any sum required to make good such compensation for any expenses, loss, damage or destruction caused by him to the Central Government or to any building or property as may be awarded by his commanding officer;

(h) any sum required to, pay a fine awarded by a criminal court, a court- martial exercising jurisdiction under section 69, or an officer exercising authority under any of the sections 80 and 89;

(i) any sum required by order of the Central Government or any prescribed officer to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

——————-

1. Omitted by s. 8, ibid.
 

Section 92. Computation of time of absence or custody

For the purposes of clauses (a) and (b) of section 91,-

(a) no person shall be treated as absent or in custody for a day unless the absence or custody has lasted, whether wholly in one day, or partly in one day and partly in another, for six consecutive hours or upwards;

(b) any absence or custody for less than a day may be reckoned as absence or custody for a day if such absence or custody prevented the absentee from fulfilling any military duty which was thereby thrown upon some other person;

(c) absence or custody for twelve consecutive hours or upwards may be reckoned as absence or custody for the whole of each day during any portion of which the person was absent or in custody;

(d) a period of absence, or imprisonment, which commences before, and ends after, midnight may be reckoned as a day.
 

Section 93. Pay and allowances during trial

In the case of any person subject to this Act who is in custody or under suspension from duty on a charge for an offence, the prescribed officer may direct that the whole or any part of the pay and allowances of such person shall be withheld, pending the result of his trial on the charge against him, in order to give effect to the provisions of clause (b) of sections 90 and 91.
 

Section 94. Limit of certain deductions

The total deductions from the pay and allowances of a person made under clauses (e), (g) to (i) of section 91 shall not, except where he is sentenced to dismissal, exceed in any one month one- half of his pay and allowances for that month.
 

Section 95. Deduction from public money due to a person

Any sum authorised by this Act to be deducted from the pay and allowances of any person may, without prejudice to any other mode of recovering the same, be deducted from any public money due to him other than a pension.
 

Section 96. Pay and allowances of prisoner of war during inquiry into his conduct

Where the conduct of any person subject to this Act when being taken prisoner by, or while in the hands of, the enemy, is to be inquired into under this Act or any other law, 1[ the Chief of the Army Staff] or any officer authorised by him may order that the whole or any part of the pay and allowances of such person shall be withheld pending the result of such inquiry.

——————-

1. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.
 

Section 97. Remission of deductions

Any deduction from pay and allowances authorised by this Act may be remitted in such manner and to such extent, and by such authority, as may from time to time be prescribed.
 

Section 98. Provision for dependants of prisoner of war from remitted deductions

In the case of all persons subject to this Act, being prisoners of war, whose pay and allowances have been forfeited under clause (h) of section 90 or clause (a) of section 91, but in respect of whom a remission has been made under section 97, it shall be lawful for proper provision to be made by the prescribed authorities out of such pay and allowances for any dependants of such persons, and any such remission shall in that case be deemed to apply only to the balance thereafter remaining of such pay and allowances.
 

Section 99. Provision for dependants of prisoner war from his pay and allowances

It shall be lawful for proper provision to be made by the prescribed authorities for any dependants of any person subject to this Act who is a prisoner of war or is missing, out of his pay and allowances.
 

Section 100. Period during which a person is deemed to be a prisoner of war

For the purposes of sections 98 and 99, a person shall be deemed to continue to be a prisoner of war until the conclusion of any inquiry into his conduct such as is referred to in section 96, and if he is cashiered or dismissed from the service in consequence of such conduct, until the date of such cashiering or dismissal.

CHAP ARREST AND PROCEEDINGS BEFORE TRIAL. CHAPTER IX ARREST AND PROCEEDINGS BEFORE TRIAL
 

Section 101. Custody of offenders

(1) Any person subject to this Act who is charged with an offence may be taken into military custody.

(2) Any such person may be ordered into military custody by any superior officer.

(3) An officer may order into military custody any officer, though he may be of a higher rank, engaged in a quarrel, affray or disorder.
 

Section 102. Duty of commanding officer in regard to detention

(1) It shall be the duty of every commanding officer to take care that a person under his command when charged with an offence is not detained in custody for more than forty- eight hours after the committal of such person into custody is reported to him, without the charge being investigated, unless investigation within that period seems to him to be impracticable having regard to the public service.

(2) The case of every person being detained in custody beyond a period of forty- eight hours, and the reason thereof, shall be reported by the commanding officer to the general or other officer to whom application would be made to convene a general or district court- martial for the trial of the person charged.

(3) In reckoning the period of forty- eight hours specified in sub- section (1), Sundays and other public holidays shall be excluded.

(4) Subject to the provisions of this Act, the Central Government may make rules providing for the manner in which and the period for which any person subject to this Act may be taken into and detained in military custody, pending the trial by any competent authority for any offence committed by him.
 

Section 103. Interval between commital and court- martial

In every case where any such person as is mentioned in section 101 and as is not on active service remains in such custody for a longer period than eight days, without a court- martial for his trial being ordered to assemble, a special report giving reasons for the delay shall be made by his commanding officer in the manner prescribed, and a similar report shall be forwarded at intervals of every eight days until a court- martial is assembled or such person is released from custody.
 

Section 104. Arrest by civil authorities

Whenever any person subject to this Act, who is accused of any offence under this Act, is within the jurisdiction of any magistrate or police officer, such magistrate or police officer shall aid in the apprehension and delivery to military custody of such person upon receipt of a written application to that effect signed by his commanding officer.
 

Section 105. Capture of deserters

(1) Whenever any person subject to this Act deserts, the commanding officer of the corps, department or detachment to which he belongs, shall give written information of the desertion to such civil authorities as, in his opinion, may be able to afford assistance towards the capture of the deserter; and such authorities shall thereupon take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a magistrate, and shall deliver the deserter. when apprehended, into military custody.

(2) Any police officer may arrest without warrant any person reasonably believed to be subject to this Act, and to be a deserter or to be travelling without authority, and shall bring him without delay before the nearest magistrate, to be dealt with according to law.
 

Section 106. Inquiry into absence without leave

(1) When any person subject to this Act has been absent from his duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be assembled, and such court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof, and the said deficiency, if any, and the commanding officer of the corps or department to which the person belongs shall enter in the court- martial book of the corps or department a record of the declaration.

(2) If the person declared absent does not afterwards surrender or is not apprehended, he. shall, for the purposes of this Act, be deemed to be a deserter.
 

Section 107. Provost- marshals

(1) Provost- marshals may be appointed by 1[ the Chief of the Army Staff] or by any prescribed officer.

(2) The duties of a provost- marshal are to take charge of persons confined for any offence, to preserve good order and discipline, and to prevent breaches of the same by persons serving in, or attached to, the regular Army.

(3) A provost- marshal may act any time arrest and detain for trial any person subject to this Act who commits, or is charged with, an offence, and may also carry into effect any punishment to be inflicted in pursuance of the sentence awarded by a court- martial, or by an officer exercising authority under section 80 but shall not inflict any punishment on his own authority:

Provided that no officer shall be so arrested or detained otherwise than on the order of another officer.

(4) For the purposes of sub- sections (2) and (3), a provost- marshal shall be deemed to include a provost- marshal appointed under any law for the time being in force relating to the Government of the Navy or Air Force, and any person legally exercising authority under him or on his behalf. CHAP COURTS- MARTIAL. CHAPTER X COURTS- MARTIAL

——————–

1. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.
 

Section 108. Kinds of courts- martial

For the purposes of this Act there shall be four kinds of courts- martial, that is to say,-

(a) general courts- martial;

(b) district courts- martial;

(c) summary general courts- martial; and

(d) summary courts- martial.
 

Section 109. Power to convene a general court- martial

A general court- martial may be convened by the Central Government or 1[ the Chief of the Army Staff] or by any officer empowered in this behalf by warrant of 1[ the Chief of the Army Staff].

———————

1. Subs. by Act 19 of 1955, s. 2, and Sch., for.” the Commander- in- Chief”.
 

Section 110. Power to convene a district court- martial

A district court- martial may be convened by an officer having power to convene a general court- martial or by any officer empowered in this behalf by warrant of any such officer.
 

Section 111. Contents of warrants issued under sections 109 and 110

A warrant issued under section 109 or section 110 may contain such restrictions, reservations or conditions as the officer issuing, it may think fit.
 

Section 112. Power to convene a summary general court- martial

The following authorities shall have power to convene a summary general court- martial, namely,-

(a) an officer empowered in this behalf by an order of the Central Government or of 1[ the Chief of the Army Staff];

(b) on active service, the officer commanding the forces in the field, or any officer empowered by him in this behalf;

(c) an officer commanding any detached portion of the regular Army on active service when, in his opinion, it is not practicable, with due regard to discipline and the exi- gencies of the service, that an offence should be tried by a general court- martial.

——————–

1. Subs. by Act 19 of 1955, s. 2, and Sch., for.” the Commander- in- Chief”.
 

Section 113. Composition of general court- martial

A general court- martial shall consist of not less than five officers, each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of captain.
 

Section 114. Composition of district court- martial

A district court- martial shall consist of not less than three officers, each of whom has held a commission for not less than two whole years.
 

Section 115. Composition of summary general court- martial

A summary general court- martial shall consist of not less than three officers.
 

Section 116. Summary court- martial

(1) A summary court- martial may be held by the commanding officer of any corps, department or detachment of the regular Army, and he shall alone constitute the court.

(2) The proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either, and who shall not as such, be sworn or affirmed.
 

Section 117. Dissolution of courts- martial

(1) If a court- martial after the commencement of a trial is reduced below the minimum number of officers required by this Act, it shall be dissolved.

(2) If, on account of the illness of the judge advocate or of the accused before the finding, it is impossible to continue the trial, a court- martial shall be dissolved.

(3) The officer who convened a court- martial may dissolve such court- martial if it appears to him that military exigencies or the necessities of discipline render it impossible or inexpedient to continue the said court- martial.

(4) Where a court- martial is dissolved under this section, the accused may be tried again.
 

Section 118. Powers of general and summary general courts- martial

A general or summary general court- martial shall have power to try any person subject to this Act for any offence punishable therein and to pass any sentence authorised thereby.
 

Section 119. Powers of district courts- martial

A district court- martial shall have power to try any person subject to this Act other than an officer or a junior commissioned officer for any offence made punishable therein, and to pass any sentence authorised by this Act other than a sentence of death, transportation, or imprisonment for a term exceeding two years: Provided that a district court- martial shall not sentence a warrant officer to imprisonment.
 

Section 120. Powers of summary courts- martial

(1) Subject to the provisions of sub- section (2), a summary court- martial may try any offence punishable under this Act.

(2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court- martial or on active service a summary general court- martial for the trial of the alleged offender, an officer holding a summary court- martial shall not try without such reference any offence punishable under any of the sections 34, 37 and 69, or any offence against the officer holding the court.

(3) A summary court- martial may try any person subject to this Act and under the command of the officer holding the court, except an officer, junior commissioned officer or warrant officer.

(4) A summary court- martial may pass any sentence which may be passed under this Act, except a sentence of death or transportation, or of imprisonment for a term exceeding the limit specified in sub- section (5).

(5) The limit referred to in sub- section (4) shall be one year if the officer holding the summary court- martial is of the rank of lieutenantcolonel and upwards, and three months if such officer is below that rank.
 

Section 121. Prohibition of second trial

When any person subject to this Act has been acquitted or convicted of an offence by a court- martial or by a criminal court, or has been dealt with under any of the sections 80, 83, 84 and 85, he shall not be liable to be tried again for the same offence by a court- martial or dealt with under the said sections.
 

Section 122. Period of limitation for trial

(1) Except as provided by sub- section (2), no trial by court- martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years 1[ and such period shall commence,-

(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person aggrieved by the offence or to the authority com- petent to initiate action, the first day on which such offence comes to the knowledge of such person or authority, whichever is earlier; or

(c) where it is not known by whom the offence was com- mitted, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the authority competent to initiate action, whichever is earlier.]

(2) The provisions of sub- section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in section 37.

(3) In the computation of the period of time mentioned in sub- section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.

(4) No trial for an offence of desertion other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an officer, has subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the regular Army.
 

Section 123. Liability of offender who ceases to be subject to Act

(1) Where an offence under this Act had been committed by any person while subject to this Act, and he has ceased to be so subject, he may be taken into and kept in military custody, and tried and punished for such offence as if he continued to be so subject.

(2) No such person shall be tried for an offence, unless his trial commences 1[within a period of three years after he had ceased to be subject to this Act; and in computing such period, the time during which such person has avoided arrest by absconding or concealing himself or where the institution of the proceeding in respect of the offence has been stayed by an injunction or order, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded:] Provided that nothing contained in this sub- section shall apply to the trial of any such person for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in section 37 or shall affect the jurisdiction of a criminal court to try any offence triable by such court as well as by a court- martial.

(3) When a person subject to this Act is sentenced by a court- martial to transportation or imprisonment, this Act shall apply to him during the term of his sentence, though he is cashiered or dismissed from the regular Army, or has otherwise ceased to be subject to this Act, and he may be kept, removed, imprisoned and punished as if he continued to be subject to this Act.

(4) When a person subject to this Act is sentenced by a court- martial to death, this Act shall apply to him till the sentence is carried out.

——————–

1. Subs. by Act 37 of 1992, s. 10.
 

Section 124. Place of trial

Any person subject to this Act who commits any offence against it may be tried and punished for such offence in any place whatever.
 

Section 125. Choice between criminal court and court- martial

When a criminal court and a court- martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court- martial, to direct that the accused person shall be detained in military custody.
 

Section 126. Power of criminal court to require delivery of offender

(1) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government.

(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference shall be final.1[

CHAP PROCEDURE OF COURTS- MARTIAL. CHAPTER XI PROCEDURE OF COURTS- MARTIAL

——————–

1. Omitted by s. 11, ibid.
 

Section 127. *****

*****

Section 128. Presiding officer

At every general, district or summary general court- martial the senior member shall be the presiding officer.
 

Section 129. Judge advocate

Every general court- martial shall, and every district or summary general court- martial may, be attended by a judge advocate, who shall be either an officer belonging to the department of the Judge Advocate General, or if no such officer is available, an officer approved of by the Judge Advocate General or any of his deputies.
 

Section 130. Challenges

(1) At all trials by general, district or summary general court- martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court.

(2) If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the court shall, in the absence of the challenged officer decide on the objection.

(3) If the objection is allowed by one- half or more of the votes of the officers entitled to vote, the objection shall be allowed, and the member objected to shall retire, and his vacancy may be filled in the prescribed manner by another officer subject to the same right of the accused to object.

(4) When no challenge is made, or when challenge has been made and disallowed, or the place of every officer successfully challenged has been filled by another officer to whom no objection is made or allowed, the court shall proceed with the trial.
 

Section 131. Oaths of member, judge advocate and witness

(1) An oath or affirmation in the prescribed manner shall be administered to every member of every court- martial and to the judge advocate before the commencement of the trial.

(2) Every person giving evidence before a court- martial shall be examined after being duly sworn or affirmed in the prescribed form.

(3) The provisions of sub- section (2) shall not apply where the witness is a child under twelve years of age and the court- martial is of opinion that though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation.
 

Section 132. Voting by members

(1) Subject to the provisions of sub- sections (2) and (3), every decision of a court- martial shall be passed by an absolute majority of votes; and where there is an equality of votes on either the finding or the sentence, the decision shall be in favour of the accused.

(2) No sentence of death shall be passed by a general court- martial without the concurrence of at least two- thirds of the members of the court.

(3) No sentence of death shall be passed by a summary general court- martial without the concurrence of all the members.

(4) In matters, other than a challenge or the finding or sentence, the presiding officer shall have a casting vote.
 

Section 133. General rule as to evidence

The Indian Evidence Act, 1872 , (1 of 1872 .) shall, subject to the provisions of this Act, apply to all proceedings before a court- martial.
 

Section 134. Judicial notice

A court- martial may take judicial notice of any matter within the general military knowledge of the members.
 

Section 135. Summoning withnesses

(1) The convening officer, the presiding officer of a court- martial, 1[ or courts of inquiry] the judge advocate or the commanding officer of the accused person may, by summons under his hand, require the attendance, at a time and place to be mentioned in the summons, of any person either to give evidence or to produce any document or other thing.

(2) In the case of a witness amenable to military authority, the summons shall be sent to his commanding officer, and such officer shall serve it upon him accordingly.

(3) In the case of any other witness, the summons shall be sent to the magistrate within whose jurisdiction he may be or reside, and such magistrate shall give effect to the summons as if the witness were required in the court of such magistrate.

(4) When a witness is required to produce any particular document or other thing in his possession or power, the summons shall describe it with reasonable precision.

——————-

1. Ins. by Act 37 of 1992, s. 12.
 

Section 136. Documents exempted from production

(1) Nothing in section 135 shall be deemed to affect the operation of sections 123 and 124 of the Indian Evidence Act, 1872 , (1 of 1872 .) or to apply to any letter, postcard, telegram or other document in the custody of the postal or telegraph authorities.

(2) If any document in such custody is, in the opinion of any district magistrate, chief presidency magistrate, High Court or Court of Session, wanted for the purpose of any court- martial, such magis- trate or Court may require the postal or telegraph authorities, as the case may be, to deliver such document to such person as such magistrate or Court may direct.

(3) If any such document is, in the opinion of any other magistrate or of any commissioner of police or district superintendent of police, wanted for any such purpose, he may require the postal or telegraph authorities, as the case may be, to cause search to be made for and to detain such document pending the orders of any such district magistrate, chief presidency magistrate or High Court or Court of Session.

Section 137. Commissions for examination of withness

(1) Whenever, in the course of a trial by court- martial, it appears to the Court that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, in the circumstances of the case, would be unreasonable, such Court may address the Judge Advocate General in order that a commission to take the evidence of such witness may be issued.

(2) The Judge Advocate General may then, if he thinks necessary, issue a commission to any district magistrate or magistrate of the first class, within the local limits of whose jurisdiction such witness resides, to take the evidence of such witness.

(3) The magistrate or officer to whom the commission is issued, or, if he is the district magistrate, he or such magistrate of the first class as he appoints in this behalf, shall proceed to the place where the witness is or shall summon the witness before him and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of warrant- cases under the 2[ code of Criminal Procedure, 1973 ] (2 of 1974 .) on any corresponding law in force in 1[ the State of Jammu and Kashmir].

(4) When the witness resides in a tribal area or in any place outside India, the commission may be issued in the manner specified in 2[ Chapter XXII of the Code of Criminal Procedure, 1973 ] (2 of 1974 .) or of any corresponding law om force in 1[ the State of Jammu and Kashmir].

(5) In this and the next succeeding section, the expression” Judge Advocate General” includes a Deputy Judge Advocate General.

——————–

1. Subs. by the Adaptation of Laws (No. 3) Order, 1956, for” a Part B State”.

2. Subs. by Act 37 of 1992, s. 13.
 

Section 138. Examination of a withness on commission

(1) The prosecutors and the accused person in any case in which a commission is issued under section 137 may respectively forward any interrogatories in writing which the Court may think relevant to the issue, and the magistrate or officer executing the commission shall examine the witness upon such interrogatories.

(2) The prosecutor and the accused person may appear before such magistrate or officer by counsel or, except in the case of an accused person in custody, in person, and may examine, cross- examine and re- examine, as the case may be, the said witness.

(3) After a commission issued under section 137 has been duly executed, it shall be returned, together with the deposition of the witness examined thereunder, to the Judge Advocate General.

(4) On receipt of a commission and deposition returned under subsection (3), the Judge Advocate General shall forward the same to the Court at whose instance the commission was issued or, if such Court has been dissolved, to any other Court convened for the trial of the accused person; and the commission, the return thereto and the deposition shall be open to inspection by the prosecutor and the accused person, and may, subject to all just exceptions, be read in evidence in the case by either the prosecutor or the accused, and shall form part of the proceedings of the Court.

(5) In every case in which a commission is issued under section 137, the trial may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.
 

Section 139. Conviction of offence not charged

(1) A person charged before a court- martial with desertion may be found guilty of attempting to desert or of being absent without leave.

(2) A person charged before a court- martial with attempting to desert may be found guilty of being absent without leave.

(3) A person charged before a court- martial with using criminal force may be found guilty of assault.

(4) A person charged before a court- martial with using threatening language may be found guilty of using insubordinate language.

(5) A person charged before a court- martial with any one of the offences specified in clauses (a), (b), (c) and (d) of section 52 may be found guilty of any other of these offences with which he might have been charged.

(6) A person charged before a court- martial with an offence punishable under section 69 may be found guilty of any other offence of which he might have been found guilty if the provisions of the 1[ Code of Criminal Procedure, 1973 ] (2 of 1974 .) were applicable.

(7) A person charged before a court- martial with any offence under this Act, may, on failure of proof of an offence having been committed in circumstances involving a more severe punishment, be found guilty of the same offence as having been committed in circumstances involving a less severe punishment.

(8) A person charged before a court- martial with any offence under this Act may be found guilty of having attempted or abetted the commission of that offence, although the attempt or abetment is not separately charged.

——————-

1. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.
 

Section 140. Presumption as to signatures

In any proceeding under this Act, any application, certificate, warrant, reply or other document purporting to be signed by an officer in the service of the Government shall, on production, be presumed to have been duly signed by the person by whom and in the character in which it purports to have been signed, until the contrary is shown.
 

Section 141. Enrolment paper

(1) Any enrolment paper purporting to be signed by an enrolling officer shall, in proceedings under this Act, be evidence of the person enrolled having given the answers to questions which he is therein represented as having given.

(2) The enrolment of such person may be proved by the production of the original or a copy of his enrolment paper purporting to be certified to be a true copy by the officer having the custody of the enrolment paper.
 

Section 142. Presumption as to certain documents

(1) A letter, return or other document respecting the service of any person in, or the cashiering, dismissal or discharge of any person from, any portion of the regular Army, or respecting the circumstance of any person not having served in, or belonged to, any portion of the Forces, if purporting to be signed by or on behalf of the Central Government or 1[ the Chief of the Army Staff], or by any prescribed officer, shall be evidence of the facts stated in such letter, return or other document.

(2) An Army, Navy or Air Force List or Gazette purporting to be published by authority shall be evidence of the status and rank of the officers, junior commissioned officers or warrant officers therein mentioned, and of any appointment held by them and of the corps, battalion or arm or branch of the services to which they belong.

(3) Where a record is made in any regimental book in pursuance of this Act or of any rules made thereunder or otherwise in pursuance of military duty, and purports to be signed by the commanding officer or by the officer whose duty it is to make such record, such record shall be evidence of the facts therein stated.

(4) A copy of any record in any regimental book purporting to be certified to be a true copy by the officer having custody of such book shall be evidence of such record.

(5) Where any person subject to this Act is being tried on a charge of desertion or of absence without leave, and such person has surrendered himself into the custody of any officer or other person subject to this Act, or any portion of the regular Army, or has been apprehended by such officer or person, a certificate purporting to be signed by such officer, or by the commanding officer of that portion of the regular Army, or by the commanding officer of the corps, department or detachment to which such person belongs, as the case may be, and stating the fact, date and place of such surrender or apprehension, and the manner in which he was dressed, shall be evidence of the matters so stated.

(6) Where any person subject to this Act is being tried on a charge of desertion or of absence without leave, and such person has surrendered himself into the custody of, or has been apprehended by, a police officer not below the rank of an officer in charge of a police station, a certificate purporting to be signed by such police officer and stating the fact, date and place of such surrender or apprehension and the manner in which he was dressed shall be evidence of the matters so stated.

(7) Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government 2[ or any of the Government scientific experts namely, the Chief Inspector of the Explosives, the Director of Finger Print Bureau, the Director, Haffkeine Institute, Bombay, the Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory and the Serologist to the Government.] upon any matter or thing duly submitted to him for examination or analysis and report may be used as evidence in any proceeding under this Act.

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1. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.

2. Ins. by Act 37 of 1992, s, 15.
 

Section 143. Reference by accused to Government officer

(1) If at any trial for desertion or absence without leave, overstaying leave or not rejoining when warned for service, the person tried states in his defence any sufficient or reasonable excuse for his unauthorised absence, and refers in support thereof to any officer in the service of the Government, or if it appears that any such officer is likely to prove or disprove the said statement in the defence, the court shall address such officer and adjourn the proceedings until his reply is received.

(2) The written reply of any officer so referred to shall, if signed by him be received in evidence and have the same effect as if made on oath before the court.

(3) If the court is dissolved before the receipt of such reply, or if the court omits to comply with the provisions of this section, the convening officer may, at his discretion, annul the proceedings and order a, fresh trial.
 

Section 144. Evidence of previous convictions and general character

(1) When any person subject to this Act has been convicted by a court- martial of any offence, such court- martial may inquire into, and receive and record evidence of any previous convictions of such person, either by a court- martial or by a criminal court, or any previous award of punishment under any of the sections 80, 83, 84 and 85, and may further inquire into and record the general character of such person and such other matters as may be prescribed.

(2) Evidence received under this section may be either oral, or in the shape of entries in, or certified extracts from, court- martial books or other official records; and it shall not be necessary to give notice before trial to the person tried that evidence as to his previous convictions or character will be received.

(3) At a summary court- martial the officer holding the trial may, if he thinks fit, record any previous convictions against the offender, his general character, and such other matters as may be prescribed, as of his own knowledge, instead of requiring them to be proved under the foregoing provisions of this section.
 

Section 145. Lunacy of accused

(1) Whenever, in the course of a trial by a court- martial, it appears to the court that the person charged is by reason of unsoundness of mind incapable of making his defence, or that he committed the act alleged but was by reason of unsoundness of mind incapable of knowing the nature of the act or knowing that it was wrong or contrary to law, the court shall record a finding accordingly.

(2) The presiding officer of the court, or, in the case of a summary court- martial, the officer holding the trial, shall forthwith report the case to the confirming officer, or to the authority empowered to deal with its finding under section 162, as the case may be.

(3) The confirming officer to whom the case is reported under subsection (2) may, if he does not confirm the finding, take steps to have the accused person tried by the same or another court- martial for the offence with which he was charged.

(4) The authority to whom the finding of a summary court- martial is reported under sub- section (2), and a confirming officer confirming a finding in any case so reported to him shall order the accused person to be kept in custody in the prescribed manner and shall report the case for the orders of the Central Government.

(5) On receipt of a report under sub- section (4) the Central Government may order the accused person to be detained in a lunatic asylum or other suitable place of safe custody.
 

Section 146. Subsequent fitness of lunatic accused for trial

Where any accused person, having been found by reason of unsoundness of mind to be incapable of making his defence, is in custody or under detention under section 145, the officer commanding the army, army corps, division or brigade within the area of whose command the accused is in custody or is detained, or any other officer prescribed in this behalf, may-

(a) if such person is in custody under sub- section (4) of section 145, on the report of a medical officer that he is capable of making his defence, or

(b) if such person is detained in a jail under sub- section (5) of section 145, on a certificate of the Inspector General of Prisons, and if such person is detained in a lunatic asylum under the said sub- section on a certificate of any two or more of the visitors of such asylum that he is capable of making his defence, take steps to have such person tried by the same or another court- martial for the offence with which he was originally charged or, if the offence is a civil offence, by a criminal court.
 

Section 147. Transmission to Central Government of orders under section 146

A copy of every order made by an officer under section 146 for the trial of the accused shall forthwith be sent to the Central Government.
 

Section 148. Release of lunatic accused

Where any person is in custody under sub- section (4) of section 145 or under detention under sub- section (5) of that section-

(a) if such person is in custody under the said sub- section (4), on the report of a medical officer, or

(b) if such person is detained under the said sub- section (5), on a certificate from any of the authorities mentioned in clause (b) of section 146 that, in the judgment of such officer or authority such person may be released without danger of his doing injury to himself or to any other person, the Central Government may order that such person be released or detained in custody, or transferred to a public lunatic asylum if he has not already been sent to such an asylum.
 

Section 149. Delivery of lunatic accused to relatives

Where any relative or friend of any person who is in custody under sub- section (4) of section 145 or under detention under sub- section (5) of that section desires that he should be delivered to his care and custody, the Central Government may upon application by such relative or friend and on his giving security to the satisfaction of that Government that the person delivered shall be properly taken care of and prevented from doing injury to himself or any other person, and be produced for the inspection of such officer, and at such times and places, as the Central Government may direct, order such person to be delivered to such relative or friend.
 

Section 150. Order for custody and disposal of property pending trial

When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before a court- martial during a trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the trial, and if the property is subject to speedy or natural decay may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
 

Section 151. Order for disposal of property regarding which offence is committed

(1) After the conclusion of a trial before any court- martial, the Court or the officer confirming the finding or sentence of such court- martial, or any authority superior to such officer, or, in the case of a court- martial whose finding or sentence does not require confirmation, the officer commanding the army, army corps, division or brigade within which the trial was held, may make such order as it or he thinks fit for the disposal by destruction, confiscation, delivery to any person claiming to be entitled to possession thereof, or otherwise, of any property or document produced before the Court or in its custody, or regarding which any offence appears to have been committed or which has been used for the commission of any offence.

(2) Where any order has been made under sub- section (1) in res- pect of property regarding which an offence appears to have been committed, a copy of such order signed and certified by the authority making the same may, whether the trial was held within India or not, be sent to a magistrate within whose jurisdiction such property for the time being is situated, and such magistrate shall thereupon cause the order to be carried into effect as if it were an order passed by him under the provisions of the 2[ Code of Criminal Procedure, 1973 ] (2 of 1974 ), or any corresponding law in force in 1[ the State of Jammu and Kashmir].

(3) In this section the term” property” includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange whether immediately or otherwise.

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1. Subs. by the Adaptation of Laws (No. 3) Order, 1956 for” a Part B State’.

2. Subs. by Act 37 of 1992, s. 14.
 

Section 152. Powers of court- martial in relation to proceedings under this Act

Any trial by a court- martial under the provisions of this Act shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860 ), and the court- martial shall be deemed to be a Court within the meaning of 1[ Sections 345 and 346 of the Code of Criminal Procedure, 1973 ] (2 of 1974 ) CHAP CONFIRMATION AND REVISION. CHAPTER XII CONFIRMATION AND REVISION

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1. Subs. by s. 16, ibid.

 

Section 153. Finding and sentence not valid, unless confirmed

No finding or sentence of a general, district or summary general, court- martial shall be valid except so far as it may be confirmed as provided by this Act.
 

Section 154. Power to confirm finding and sentence of general court- martial

The findings and sentences of general courts- martial may be confirmed by the Central Government, or by any officer empowered in this behalf by warrant of the Central Government.
 

Section 155. Power to confirm finding and sentence of district court- martial

The findings and sentences of district courts- martial may be confirmed by any officer having power to convene a general court- martial or by any officer empowered in this behalf by warrant of such officer.
 

Section 156. Limitation of powers of confirming authority

A warrant issued under section 154 or section 155 may contain such restrictions, reservations or conditions as the authority issuing it may think fit.
 

Section 157. Power to confirm finding and sentence of summary general court- martial

The findings and sentences of summary general courts- martial may be confirmed by the convening officer or if he so directs, by an authority superior to him.
 

Section 158. Power of confirming authority to mitigate, remit or commute sentences

(1) Subject to such restrictions, reservations or conditions as may be contained in any warrant issued under section 154 or section 155 and to the provision of sub- section (2), a confirming authority may, when confirming the sentence of a court- martial, mitigate or remit the punishment thereby awarded, or commute that punishment for any punishment or punishments lower in the scale laid down in section 71.

(2) A sentence of transportation shall not be commuted for a sentence of imprisonment for a term exceeding the term of trans- portation awarded by the Court.
 

Section 159. Confirming of findings and sentences on board a ship

When any person subject to this Act is tried and sentenced by a court- martial while on board a ship, the finding and sentence so far as not confirmed and executed on board the ship, may be confirmed and executed in like manner as if such person had been tried at the port of disembarkation.
 

Section 160. Revision of finding or sentence

(1) Any finding or sentence of a court- martial which requires confirmation may be once revised by order of the confirming authority and on such revision, the Court, if so directed by the con- firming authority, may take additional evidence.

(2) The Court, on revision, shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent.

(3) In case of such unavoidable absence the cause thereof shall be duly certified in the proceedings, and the Court shall proceed with the revision, provided that, if a general court- martial, it still consists of five officers, or, if a summary general or district court- martial, of three officers.
 

Section 161. Finding and sentence of a summary court- martial

(1) Save as otherwise provided in sub- section (2), the finding and sentence of a summary court- martial shall not require to be confirmed, but may be carried out forthwith.

(2) If the officer holding the trial is of less than five years service, he shall not, except on active service, carry into effect any sentence until it has received the approval of an officer commanding not less than a brigade.
 

Section 162. Transmission of proceedings of summary court- martial

The proceedings of every summary court- martial shall without delay be forwarded to the officer commanding the division or brigade within which the trial was held, or to the prescribed officer; and such officer, or 1[ the Chief of the Army Staff], or any officer empowered in this behalf by 1[ the Chief of the Army Staff], may, for reasons based on the merits of the case, but not any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the court might have passed.

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1. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.
 

Section 163. Alteration of finding or sentence in certain cases

(1) Where a finding of guilty by a court- martial, which has been confirmed, or which does not require confirmation, is found for any reason to be invalid or cannot be supported by the evidence, the authority which would have had power under section 179 to commute the punishment awarded by the sentence, if the finding had been valid, may substitute a new finding and pass a sentence for the offence specified or involved in such finding: Provided that no such substitution shall be made unless such finding could have been validly made by the court- martial on the charge and unless it appears that the court- martial must have been satisfied of the facts establishing the said offence.

(2) Where a sentence passed by a court- martial which has been confirmed, or which does not require confirmation, not being a sen- tence passed in pursuance of a new finding substituted under sub- section (1), is found for any reason to be invalid, the authority referred to in sub- section (1) may pass a valid sentence.

(3) The punishment awarded by a sentence passed under sub- section (1) or sub- section (2) shall not be higher in the scale of punishments than, or in excess of, the punishment awarded by, the sentence for which a new sentence is substituted under this section.

(4) Any finding substituted, or any sentence passed, under this section shall, for the purposes of this Act and the rules made thereunder, have effect as if it were a finding or sentence, as the case may be, of a court- martial.
 

Section 164. Remedy against order, finding or sentence of court- martial

(1) Any person subject to this Act who considers himself aggrieved by any order passed by any court- martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court- martial, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.

(2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any court- martial which has been confirmed, may present a petition to the Central Government, 1[ the Chief of the Army Staff] or any prescribed officer superior in com- mand to the one who confirmed such finding or sentence, and the Central Government, 1[ the Chief of the Army Staff] or other officer, as the case may be, may pass such order thereon as it or he thinks fit.
 

Section 165. Annulment of proceedings

The Central Government, 1[ the Chief of the Army Staff] or any prescribed officer may annul the proceedings of any court- martial on the ground that they are illegal or unjust. CHAP EXECUTION OF SENTENCES. CHAPTER XIII EXECUTION OF SENTENCES

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1. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.
 

Section 166. Form of sentence of death

In awarding a sentence of death a court- martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead, or shall suffer death by being shot to death.
 

Section 167. Commencement of sentence of transportation or imprisonment

Whenever any person is sentenced by a court- martial under this Act to transportation or imprisonment, the term of his sentence shall, whether it has been revised or not, be reckoned to commence on the day on which the original proceedings were signed by the presiding officer or, in the case of a summary court- martial, by the court.
 

Section 168. Execution of sentence of transportation

Whenever any sentence of transportation is passed under this Act or whenever any sentence of death is commuted to transportation, the commanding officer of the person under sentence or such other officer as may be prescribed shall forward a warrant in the prescribed form to the officer in charge of the civil prison in which such person is to be confined and shall arrange for his despatch to such prison with the warrant.
 

Section 169. Execution of sentence of imprisonment

(1) Whenever any sentence of imprisonment is passed under this Act by a court- martial or whenever any sentence of death or transportation is commuted to imprisonment, the confirming officer or in case of a summary court- martial the officer holding the Court or such other officer as may be prescribed, shall, save as otherwise provided in sub- sections (3) and (4), direct either that the sentence shall be carried out by confinement in a military prison or that it shall be carried out by confinement in a civil prison.

(2) When a direction has been made under sub- section (1) the commanding officer of the person under sentence or such other officer as may be prescribed shall forward a warrant in the prescribed form to the officer in charge of the prison in which such person is to be confined and shall arrange for his despatch to such prison with the warrant.

(3) In the case of a sentence of imprisonment for a period not exceeding three months and passed under this Act by a court- martial, the appropriate officer under sub- section (1) may direct that the sentence shall be carried out by confinement in military custody instead of in a civil or military prison.

(4) On active service, a sentence of imprisonment may be carried out by confinement in such place as the officer commanding the forces in the field may from time to time appoint.

Period of custody undergone by the officer of person to be set off against the imprisonment.
 

Section 169A. Period of custody undergone by the officer or person to be set off against the imprisonment

1[Period of custody undergone by the officer or person to be set off against the imprisonment. When a person or officer subject to this Act is sentenced by a court- martial to a term of imprisonment, not being an imprisonment in default of payment of fine, the period spent by him in civil or military custody during investigation, inquiry or trial of the same case, and before the date of order of such sentence, shall be set off against the term of imprisonment imposed upon him, and the liability of such person or officer to undergo imprisonment on such order of sentence shall be restricted to the remainder, if any, of the term of imprisonment imposed upon him.]

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1. Ins. by Act 37 of 1992, s. 17.
 

Section 170. Temporary custody of offender

Where a sentence of transportation or imprisonment is directed to be undergone in a civil prison the offender may be kept in a military prison or in military custody or in any other fit place, till such time as it is possible send him to a civil prison.
 

Section 171. Execution of sentence of imprisonment in special cases

Whenever, in the opinion of an officer commanding an army, army corps, division or independent brigade, any sentence or portion of a sentence of imprisonment cannot for special reasons, conveniently be carried out in a military prison or in military custody in accordance with the provision of section 169 such officer may direct that such sentence or portion of sentence shall be carried out by confinement in any civil, prison or other fit place.
 

Section 172. Conveyance of prisoner from place to place

A person under sentence of transportation or imprisonment may during his conveyance from place to place, or when on board ship, aircraft, or otherwise, be subjected to such restraint as is necessary for his safe conduct and removal.
 

Section 173. Communication of certain orders to prison officers

Whenever an order is duly made under this Act setting aside or varying any sentence, order or warrant under which any person is confined in a civil or military prison, a warrant in accordance with such order shall be forwarded by the officer making the order or his staff officer or such other person as may be prescribed to the officer in charge of the prison in which such person is confined.

Section 174. Execution of sentence of fine

When a sentence of fine is imposed by a court- martial under section 69 whether the trial was held within India or not, a copy of such sentence, signed and certified by the confirming officer, or where no confirmation is required, by the officer holding the trial may be sent to any magistrate in India, and such magistrate shall thereupon cause the fine to be recovered in accordance with the provision of the 2[ Code of Criminal Procedure, 1973 ] (2 of 1974 ), or any corresponding law in force in 1[ the State of Jammu and Kashmir] for the levy of fines as if it were a sentence of fine imposed by such magistrate.

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1. Subs. by the Adaptation Of Laws (No. 3) Order, 1956, for” a Part B State”.

2. Subs by Act 37 of 1992, S. 14
 

Section 175. Establishment and regulation of military prisons

The Central Government may set apart any building or part of a building, or any place under its control, as a military prison for the confinement of persons sentenced to imprisonment under this Act.
 

Section 176. Informality or error in the order or warrant

Whenever any person is sentenced to transportation or imprisonment under this Act, and is undergoing the sentence in any place or manner in which he might be confined under a lawful order or warrant in pursuance of this Act, the confinement of such person shall not be deemed to be illegal only by reason of any informality or error in or as respects the order, warrant or other document, or the authority by which,’ or in pursuance whereof such person was brought into or is confined in any such place, and any such order, warrant or document may be amended accordingly.
 

Section 177. Power to make rules in respect of prisons and prisoners

The Central Government may make rules providing-

(a) for the government, management and regulation of military prisons;

(b) for the appointment, removal and powers of inspectors, visitors, governors and- officers thereof;

(c) for the labour of prisoners undergoing confinement therein, and for enabling persons to earn, by special industry and good conduct, a remission of a portion of their sentence;

(d) for the safe custody of prisoners and the maintenance of discipline among them and the punishment, by personal correction, restraint or otherwise, of offences committed by prisoners;

(e) for the application to military prisons of any of the provisions of the Prisons Act, 1894 (9 of 1894 ), relating to the duties of officers of prisons and the punishment of persons not being prisoners;

(f) for the admission into any prison, at proper times and subject to proper restrictions, of persons with whom pri- soners may desire to communicate, and for the consultation by prisoners under trial with their legal advisers without the presence as far as possible of any third party within hearing distance.
 

Section 178. Restriction of rulemaking power in regard to corporal punishment

Rules made under section 177 shall not authorise corporal punishment to be inflicted for any offence, nor render the imprison- ment more severe than it is under the law for the time being in force relating to civil prisons. CHAP PARDONS, REMISSIONS AND SUSPENSIONS. CHAPTER XIV PARDONS, REMISSIONS AND SUSPENSIONS
 

Section 179. Pardon and remission

When any person subject to this Act has been convicted by a court- martial of any offence, the Central Government or 1[ the Chief of the Army Staff] or, in the case of a sentence, which he could have confirmed or which did not, require confirmation, the officer commanding the army, army corps, division or independent brigade in which such person at the time of conviction was serving, or the prescribed officer may-

(a) either with or without conditions which the person sentenced accepts, pardon the person or remit the whole or any part of the punishment awarded; or

(b) mitigate the punishment awarded; or

(c) commute such punishment for any less punishment or punishments mentioned in this Act: Provided that a sentence of transportation shall not be commuted for a sentence of imprisonment for a term exceeding the term of transportation awarded by the court; or

(d) either with or without conditions which the person sentenced accepts, release the person on parole.

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1. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.
 

Section 180. Cancellation of conditional pardon, release on parole or remission

(1) If any condition on which a person has been pardoned or released on parole or a punishment has been remitted is, in the opinion of the authority which granted the pardon, release or re- mission, not fulfilled, such authority may cancel the pardon, release or remission, and thereupon the sentence of the court shall be carried into effect as if such pardon, release or remission had not been granted.

(2) A person whose sentence of transportation or imprisonment is carried into effect under the provisions of sub- section (1) shall undergo only the unexpired portion of his sentence.
 

Section 181. Reduction of warrant officer or non- commissioned officer

When under the’ provisions of section 77 a warrant officer or a non- commissioned officer is deemed to be reduced to the ranks, such reduction shall, for the purpose of section 179, be treated as a punishment awarded by a sentence of a court- martial.
 

Section 182. Suspension of sentence of transportation or imprisonment

(1) Where a person subject to this Act is sentenced by a court- martial to transportation or imprisonment, the Central Government, 1[ the Chief of the Army Staff] or any officer empowered to convene a general or a summary general court- martial may suspend the sentence whether or not the offender has already been committed to prison or to military custody.

(2) The authority or officer specified in sub,- section (1) may in the case of an offender so sentenced direct that, until the orders of such authority or officer have been obtained the offender shall not be committed to prison or to military custody.

(3) The powers conferred by sub- sections (1) and (2) may be exercised in the case of any such sentence which has been confirmed, reduced or commuted.

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1. Subs. by Act 19 of 1955, s. 2 and Sch., for” the Commander- in- Chief”.
 

Section 183. Orders pending suspension

(1) Where the sentence referred to in section 182 is imposed by a court- martial other than a summary court- martial, the confirming officer may, when confirming the sentence, direct that the offender be not committed to prison or to military custody until the orders of the authority or officer specified in section 182 have been obtained.

(2) Where a sentence of imprisonment is imposed by a summary court- martial, the officer holding the trial or the officer authorised to approve of the sentence under sub- section (2) of section 161 may make the direction referred to in sub- section (1).
 

Section 184. Release on suspension

Where a sentence is suspended under section 182, the offender shall forthwith be released from custody.
 

Section 185. Computation of period of suspension

Any period during which the sentence is under suspension shall be reckoned as part of the term of such sentence.
 

Section 186. Order after suspension

The authority or officer specified in section 182 may, at any time while a sentence is suspended, order-

(a) that the offender be committed to undergo the unexpired portion of the sentence, or

(b) that the sentence be remitted.
 

Section 187. Reconsideration of case after suspension

(1) Where a sentence has been suspended, the case may at any time, and shall at intervals of not more than four months, be reconsidered by the authority or officer specified in section 182, or by any general or other officer not below the rank of field officer duly authorised by the authority or officer specified in section 182.

(2) Where on such reconsideration by the officer so authorised it appears to him that the conduct of the offender since his conviction has been such as to justify a remission of the sentence, he shall refer the matter to the authority or officer specified in section 182.
 

Section 188. Fresh sentences after suspension

Where an offender, while a sentence on him is suspended under this Act, is sentenced for any other offence, then-

(a) if the further sentence is also suspended under this Act, the two sentences shall run concurrently;

(b) if the further sentence is for a period of three months or more and is not suspended under this Act, the offender shall also be committed to prison or military custody for the unexpired portion of the previous sentence, but both sentences shall run concurrently; and

(c) if the further sentence is for a period of less than three months and is not suspended under this Act, the offender shall be so committed on that sentence only, and the previous sentence shall, subject to any order which may be passed under section 186 or section 187, continue to be suspended.
 

Section 189. Scope of power of suspension

The powers conferred by sections 182 and 186 shall be in addition to and not in derogation of the power of mitigation, remission and commutation.
 

Section 190. Effect of suspension and remission on dismissal

(1) Where in addition to any other sentence the punishment of dismissal has been awarded by a court- martial, and such other’ sentence is suspended under section 182, then, such dismissal shall not take effect until so ordered by the authority or officer specified in section 182.

(2) If such other sentence is remitted under section 186, the punishment of dismissal shall also be remitted.
 

Section 191. Power to make rules

(1) The Central Government may make rules for the purpose of carrying into effect the provisions of this Act.

(2) Without prejudice to the generality of the power conferred by sub- section (1), the rules made thereunder may provide for-

(a) the removal, retirement, release or discharge from the service of persons subject to this Act;

(b) the amount and incidence of fines to be imposed under section 89; 1[

(d) the assembly and procedure of courts of inquiry, the recording of summaries of evidence and the administration of oaths or affirmations by such courts;

(e) the convening and constituting of courts- martial and the appointment of prosecutors at trials by courts- martial;

(f) the adjournment, dissolution and sitting of courts- martial;

(g) the procedure to be observed in trials by courts- martial and the appearance of legal practitioners thereat;

(h) the confirmation, revision and annulment of, and petitions against, the findings and sentences of courts- martial;

(i) the carrying into effect of sentences of courts- martial;

(j) the forms of orders to be made under the provisions of this Act relating to courts- martial, transportation and im- prisonment;

(k) the constitution of authorities to decide for what persons, to what amounts and in what manner, provision should be made for dependants under section 99, and the due carrying out of such decisions;

(l) the relative rank of the officers, junior commissioned officers, warrant officers, petty officers and non- commis- sioned officers of the regular Army, Navy and Air Force when acting together;

(m) any other matter directed by this Act to be prescribed.

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1. omitted by Act 37 of 1992, s. 18.
 

Section 192. Power to make regulations

The Central Government may make regulations for all or any of the purposes of this Act other than those specified in section 191.
 

Section 193. Publication of rules and regulations in Gazette

All rules and regulations made under this Act shall be published in the Official Gazette and on such publication, shall have effect as if enacted in this Act.
 

Section 193A. Rules and regulations to be laid before Parliament

1[ Rules and regulations to be laid before Parliament. Every rule and every regulation made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session, or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation should not be made the rule or regulation on shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.]

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1. Ins. by Act 20 of 1983, s. 2 and Sch. (w. e. f. 15. 3. 1984 )
 

Section 194. [Repeals]

Rep. by the Repealing and Amending Act, 1957 (36 of 1957 ), s. 2 and Sch. I. [ THE SCHEDULE.] Rep. by the Repealing and Amending Act, 1957 (36 of 1957 ) s. 2 and Sch. I

Bydeb

Air Force Act, 1950

1 Short title and commencement.—

(1) This Act may be called the Air Force Act, 1950.

(2) It shall come into force on such date1 as the Central Government may, by notification in the Official Gazette, appoint in this behalf.

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1. 22nd July, 1950 see Notification No. S.R.R. 124, dated the 22nd July, 1950, Gazette of India, Pt. II, Sec. 4, p. 87.

2. Persons subject to this Act.—

1[(c) persons belonging to the Regular Air Force Reserve or the Air Defence Reserve or the Auxiliary Air Force, in the circumstances specified in section 26 of the Reserve and Auxiliary Air Forces Act, 1952 (62 of 1952);]

(d) persons not otherwise subject to Air Force law, who, on active service, in camp, on the march, or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the Air Force.

————

1. Subs. by Act 62 of 1952, sec. 35, for clause (c).

3. Termination of application of the Act.—

Every person subject to this Act under clauses (a) to (c) of section 2 shall remain so subject until duly retired, discharged, released, removed,  dismissed or cashiered from the service.

4. Definitions.—

1In this Act, unless the context otherwise requires,—

(i) “active service”, as applied to a person subject to this Act, means the time during which such person—

(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or

(b) is engaged in air force operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or

(c) is attached to, or forms part of, a force which is in military occupation of any foreign country;

(ii) “aircraft” includes aeroplanes, balloons, kite balloons, airships, gliders or other machines for flying;

(iii) “Aircraft material” includes any engines, fittings, guns, gear, instruments or apparatus for use in connection with aircraft, and any of its components and accessories and petrol oil, and any other substance used for providing motive power for planes;

(iv) “Air Force” means officers and airmen who by their commission, warrant, terms of enrolment or otherwise, are liable to render continuously for a term air force service to the Union in every part of the world or any specified part of the world, including persons belonging to 1[any Air Force Reserve or the Auxiliary Air Force] when called out on permanent service;

(v) “Air Force custody” means the arrest or confinement of a person according to the usages of the service and includes military or naval custody;

(vi) “Air Force law” means the law enacted by this Act and the rules made thereunder and includes the usages of the service;

(vii) “Air Force reward” includes any gratuity or annuity, for long service or good conduct, badge pay or pension, and any other air force pecuniary reward;

(viii) “airman” means any person subject to this Act other than an officer;

(ix) “air officer” means any officer of the Air Force above the rank of group captain;

(x) “air signal” means any signal intended for the guidance of aircraft, whether given by flag, ground signal, light, wind indicator or in any manner whatsoever;

(xi) “Chief Legal Adviser” means a person appointed as such by 2[the Chief of the Air Staff] to give advice on matters relating to Air Force law and to perform such other duties of a legal character as may arise in connection therewith;

(xii) “civil offence” means an offence which is triable by a criminal court;

(xiii) “civil prison” means any jail or place used for the detention of any criminal prisoner under the Prisons Act, 1894 (9 of 1894) or under any other law for the time being in force;

3[(xiv) “Chief of the Air Staff” means the officer commanding the Air Force;]

(xv) “commanding officer” used in relation to a person subject to this Act, means the officer for the time being in command of the unit or detachment to which such person belongs or is attached;

(xvi) “court-martial” means a court-martial held under this Act;

(xvii) “criminal court” means a court of ordinary criminal justice in any part of India, 4[***]

(xviii) “enemy” includes all armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to Air Force law to Act;

(xix) “the Forces” means the regular Army, Navy and Air Force or any part of any one or more of them;

(xx) “non-commissioned officer” means a person holding a non-commissioned rank or an acting non-commissioned rank in the Air Force, and includes any person holding a non-commissioned rank or any acting non-commissioned rank in 5[any Air Force Reserve or the Auxiliary Air Force] when subject to this Act;

(xxi) “notification” means a notification published in the Official Gazette;

(xxii) “offence” means any act or omission punishable under this Act, and includes a civil offence, as hereinbefore defined;

(xxiii) “officer” means a person commissioned, gazetted or in pay as an officer in the Air Force, and includes—

 (a) an officer of 5[any Air Force Reserve or the Auxiliary Air Force] who is for the time being subject to this Act;

 (b) in relation to a person subject to this Act when serving under such conditions as may be prescribed, an officer of the regular Army or the Navy; but does not include a junior commissioned officer, warrant officer, petty officer or non-commissioned officer;

 (xxiv) “prescribed” means prescribed by rules made under this Act;

(xxv) “provost-marshal” means a person appointed as such under section 108 and includes any of his deputies or assistants or any other person legally exercising authority under him or on his behalf;

(xxvi) “regulation” includes a regulation made under this Act;

(xxvii) “superior officer”, when used in relation to a person subject to this Act, includes a warrant officer and a non-commissioned officer, and as regards persons serving under such conditions as may be prescribed, an officer, junior commissioned officer, warrant officer, petty officer and non-commissioned officer of the regular Army or the Navy;

(xxviii) “unit” includes—

(a) any body of officers and airmen for which a separate authorised establishment exists;

(b) any separate body of persons subject to this Act employed on any service and not attached to a unit as aforesaid;

(c) any other separate body of persons composed wholly or partly or persons subject to this Act, and specified as a unit by the Central Government;

(xxix) “warrant officer” means a person appointed, gazetted or in pay as a warrant officer of the Air Force and includes an acting warrant officer, a master warrant officer, and a warrant officer of 6[any Air Force Reserve or the Auxiliary Air Force] who is for the time being subject to this Act;

(xxx) 7[all words (except the word “India”)] and expressions used herein and defined in the Indian Penal Code (45 of 1860) and not hereinbefore defined, shall be deemed to have the meanings respectively assigned to them by that Code.

Comments

The export of banned essential commodities is a ‘civil offence’; Bakhshish v. Court Martial, 1972 Cr LJ 1630 (J&K): 1972 J&K LR 122.

————

1. Subs. by Act 62 of 1952, sec. 35, for “the Indian Air Force Volunteer Reserve”.

2. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief”.

3. Subs. by Act 19 of 1955, sec. 2 and Sch., for the original clause.

4. Omitted by Act 13 of 1975, sec. 2 (w.e.f. 29-3-1975).

5. Subs. by Act 62 of 1952, sec. 35, for “the Indian Air Force Volunteer Reserve”.

6. Subs. by Act 62 of 1952, sec. 35, for “the Indian Air Force Volunteer Reserve”

7. Subs. by Act 13 of 1975, sec. 2 (w.e.f. 29-3-1975).

5. Application of Act to certain forces under the Central Government.—

(1) The Central Government may, by notification, apply, with or without modifications; all or any of the provisions of this Act to any force raised and maintained in India and suspend the operation of any other enactment for the time being applicable to the said force.

(2) The provisions of this Act so applied shall have effect in respect of persons belonging to the said force as they have effect in respect of persons subject to this Act holding in the Air Force the same or equivalent rank as the aforesaid persons hold for the time being in the said force.

(3) The provisions of this Act so applied shall also have effect in respect of persons who are employed by, or are in the service of, or are followers of, or accompany any portion of the said force as they have effect in respect of persons subject to this Act under clause (d) of section 2.

(4) While any of the provisions of this Act apply to the said force, the Central Government may, by notification, direct by what authority any jurisdiction, powers or duties incident to the operation of these provisions shall be exercised or performed in respect of the said force.

6. Special provision as to rank in certain cases.—

(1) The Central Government may, by notification, direct that any persons or class of persons subject to this Act under clause (d) of section 2, shall be so subject as officers, warrant officers or non-commissioned officers, and may authorise any officer to give a like direction and to cancel such direction.

(2) All persons subject to this Act other than officers, warrant officers and non-commissioned officers shall, if they are not persons in respect of whom a notification or direction under sub-section (1) is in force, be deemed to be of rank inferior to that of a non-commissioned officer.

7. Commanding officer of persons subject to air force law under clause (d) of section 2.

(1) Every person subject to this Act, under clause (d) of section 2, shall, for the purposes of this Act, be deemed to be under the commanding officer of the unit, or detachment, if any, to which he is attached, and if he is not so attached under the command of any officer who may for the time being be named as his commanding officer by the officer commanding the force with which such person may for the time being be serving, or of any other prescribed officer, or, if no such officer is named or prescribed, under the command of the said officer commanding the force.

(2) An officer commanding a force shall not place a person subject to this Act under clause (d) of section 2 under the command of an officer of official rank inferior to that of such person if there is present at the place where such person is any officer of higher rank under whose command he can be placed.

8. Officers exercising powers in certain cases.—

(1) Whenever persons subject to this Act are serving under an officer commanding any air force formation not in this section specifically named, and being, in the opinion of the Central Government, not less than a squadron, the said Government may prescribe the officer by whom the powers which under this Act, may be exercised by air officer in charge of commands, and officers commanding groups, wings and squadrons shall, as regards such persons, be exercised.

(2) The Central Government may confer such powers either absolutely, or subject to such restrictions, reservations, exceptions and conditions as it may think fit.

9. Power to declare persons to be on active service.—

Notwithstanding anything contained in clause (i) of section 4, the Central Government may, by notification, declare that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to any provision of this Act or of any other law for the time being in force, be deemed to be on active service within the meaning of this Act.

 Comments

(i) ‘Serving’ means holding employment as distinguished from actually performing duties of service; Ajit Singh v. State of Punjab, AIR 1970 P&H 351 (FB) : 1970 Cr LJ 1119: 72 Punj LR 396.

(ii) The period of leave includes ‘serving’; Ajit Singh v. State of Punjab, AIR 1970 P&H 351 (FB): 1970 Cr LJ 1119: 72 Punj LR 396.

10. Commission and appointment.—

The President may grant, to such person as he thinks fit a commission as an officer or appoint any person as a warrant officer of the Air Force.

11. Ineligibility of aliens for enrolment.

No person who is not a citizen of India shall, except with the consent of the Central Government signified in writing, be enrolled in the Air Force:

Provided that nothing contained in this section shall bar the enrolment of the subjects of Nepal in the Air Force.

12. Ineligibility of females for enrolment or employment.—

No female shall be eligible for enrolment or employment in the Air Force, except in such corps, department, branch or other body forming part of, or attached to any portion of, the Air Force as Central Government may, by notification, specify in this behalf:

Provided that nothing contained in this section shall effect the provisions of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the Air Force or any branch thereof in which females are eligible for enrolment or employment.

13. Procedure before enrolling officer.—

Upon the appearance before the prescribed enrolling officer of any person desirous of being enrolled, the enrolling officer shall read and explain to him, or cause to be read and explained to him, in his presence, the conditions of the service for which he is to be enrolled; and shall put to him the questions set forth in the prescribed form of enrolment, and shall, after having cautioned him that if he makes a false answer to any such question he will be liable to punishment under this Act, record or cause to be recorded his answer to each such question.

14. Mode of enrolment.

If, after complying with the provisions of section 13, the enrolling officer is satisfied that the person desirous of being enrolled fully understands the questions put to him and consents to the conditions of service, and if such officer perceives no impediment, he shall sign and shall also cause such person to sign the enrolment paper, and such person shall thereupon be deemed to be enrolled.

15. Validity of enrolment.—

Every person who has for the space of three months been in receipt of pay as a person enrolled under this Act and been borne on the rolls of any unit shall be deemed to have been duly enrolled, and shall not be entitled to claim his discharge on the ground of any irregularity or illegality in his enrolment or on any other ground whatsoever; and if any person, in receipt of such pay and borne on the rolls as aforesaid, claims his discharge before the expiry of three months from his enrolment, no such irregularity or illegality or other ground shall, until he is discharged in pursuance of his claim, affect his position as an enrolled person under this Act or invalidate any proceedings, act or thing taken or done prior to his discharge.

Comments

The word “deemed” always means to be treated “as if it were”; Kalika Kuar alias Kalika Singh v. State of Bihar, (1990) (38) (1) BLJR 51.

16. Persons to be attested.—

The following persons shall be attested, namely:—

(a) all persons enrolled as combatants;

(b) all persons selected to hold a non-commissioned or acting non-commissioned rank; and

(c) all other persons subject to this Act as may be prescribed by the Central Government.

17. Mode of attestation.—

(1) When a person who is to be attested is reported fit for duty, or has completed the prescribed period of probation, an oath or affirmation shall be administered to him in the prescribed form by his commanding officer in front of his unit or such portion thereof as may be present, or by any other prescribed person.

(2) The form of oath or affirmation prescribed under this section shall contain a promise that the person to be attested will bear true allegiance to the Constitution of India as by law established, and that he will serve in the Air Force and go wherever he is ordered by land, sea or air, and that he will obey all commands of any officer set over him, even to the peril of his life.

(3) The fact of an enrolled person having taken the oath or affirmation directed by this section to be taken shall be entered on his enrolment paper, and authenticated by the signature of the officer administering the oath or affirmation.

18. Tenure of service under the Act.—

Every person subject to this Act shall hold office during the pleasure of the President.

 Comments

 (i) No restraint can be put on the pleasure of the President under the Act or the Rules, regarding determination of services of members of defence services and it is not necessary also to afford an opportunity of hearing before passing order of dismissal; Wg. Cdr. Hazara Singh v. Union of India, 1982 (1) SLR (Del) 623.

(ii) The mere use of the word ‘dismissal’ in an order of termination of service under section 18 in exercise of the President’s pleasure does not make the order positive. The word ‘dismissed’ be deemed to have been used loosely and amounts to termination simplicity; Wg. Cdr. Hazara Singh v. Union of India, 1982(1) SLR (Del) 623.

(iii) The pleasure of the President under section 18 to dismiss an Air Force Officer need not be exercised personally. It can be exercised by a Minister in accordance with the Government of India (Allocation of Business) Rules, 1961; Hazara Singh v. Union of India, 1976 Lab IC 528 (Del): (1976) 1 SLR 340 (Del).

(iv) President can dismiss Air Force Officer under this section without giving reasons or hearing; Hazara Singh v. Union of India, 1976 Lab IC 528: (1976) 1 SLR 340 (Del).

(v) Provisions of Sections 18 and 19 are not discriminatory merely because power thereunder can be exercised by same authority; Hazara Singh v. Union of India, 1976 Lab IC 528: (1976) 1 SLR 340 (Del).

19. Termination of service by Central Government.—

Subject to the provisions of this Act and the rules and regulations made thereunder, the Central Government may dismiss, or remove from the service any person subject to this Act.

 Comments

 (i) Under section 18, the Presidential pleasure in relation to air forces is wholly untrammelled and the President has unqualified power to dismiss an Air Force Officer, without giving any reasons or any hearing. The President’s power under section 18 is not controlled by section 19, nor can both of them be read together, as they deal with two different speares of executive power, namely that of the President having its foundation in the constitutional provision and that of the Central Government which is a statutory power conferred by section 19; Hazara Singh v. Union of India, 1976 Lab IC 528 (Del): (1976) 1 SLR 340 (Del).

(ii) Provisions of section 19 are not discriminatory merely because power thereunder can be exercised by same authority; Hazara Singh v. Union of India, 1976 Lab IC 528:(1976) 1 SLR 340 (Del).

20. Dismissal, removal or reduction by Chief of the Air Staff and other officers.—

 (1)1[The Chief of the Air Staff] may dismiss or remove from the service any person subject to this Act other than an officer.

(2) 1[The Chief of the Air Staff] may reduce to a lower grade or rank or the ranks, any warrant officer or any non-commissioned officer.

(3) An officer having power not less than an air officer in charge of a command or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer or a warrant officer.

(4) On active service, an officer commanding the air forces in the field may reduce to a lower rank or to the ranks any warrant officer or non-commissioned officer under his command.

(5) 1[The Chief of the Air Staff] or an officer specified in sub-section (3) may reduce to a lower class in the ranks any airman other than a warrant officer or non-commissioned officer.

(6) The commanding officer of an acting non-commissioned officer may order him to revert to his substantive rank as a non-commissioned officer, or if he has no such substantive rank, to the ranks.

(7) The exercise of any powers under this section shall be subject to the other provisions contained in this Act and the rules and regulations made thereunder.

Comments

Sections 19 and 45 of the Army Act, 1950 correspond to sections 20 and 73 of the Air Force Act, 1950. The powers exercisable under the two sections are independent of each other. A person could, therefore, be removed under section 19 of the Army Act or under section 20 of the Air Force Act without resort being had to court-martial; Union of India v. S.K. Rao, AIR 1972 SC 1137.

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1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief”.

21. Power to modify certain fundamental rights in their application to persons subject to this Act.—

Subject to the provisions of any law for the time being in force relating to the Air Force or to any branch thereof, the Central Government may, by notification, make rules restricting in such manner and to such extent as may be specified the right of any person subject to this Act—

(a) to be a member of, or to be associated in any way with, any trade union or labour union, or any class of trade or labour unions or any society, institution or association, or any class of societies, institutions or associations;

(b) to attend or address any meeting or to take part in any demonstration organised by any body of persons for any political or other purposes;

(c) to communicate with the press or to publish or cause to be published any book, letter or other document.

22. Retirement, release or discharge.—

Any person subject to this Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed.

23. Certificate on termination of service.—

Every warrant officer, or enrolled person who is dismissed, removed, discharged, retired or released from the service shall be furnished by his commanding officer with a certificate, in the language which is the mother tongue of such person and also in the English language setting forth—

 (a) the authority terminating his service;

(b) the cause for such termination; and

(c) the full period of his service in the Air Force.

24. Discharge or dismissal when out of India.—

(1) Any person enrolled under this Act who is entitled under the conditions of his enrolment to be discharged, or whose discharge is ordered by competent authority, and who, when he is so entitled or ordered to be discharged, is serving out of India, and requests to be sent to India, shall, before being discharged, be sent to India with all convenient speed.

 (2) Any person enrolled under this Act who is dismissed from the service and who, when he is so dismissed, is serving out of India, shall be sent to India with all convenient speed.

(3) Where any such person as is mentioned in sub-section (2) is sentenced to dismissal combined with any other punishment, such other punishment, or, in the case of a sentence of transportation, imprisonment or detention, a portion of such sentence, may be inflicted before he is sent to India.

(4) For the purposes of this section, the word “discharge” shall include release, and the word “dismissal” shall include removal.

25. Authorised deductions only to be made from pay.—

The pay of every person subject to this Act due to him as such under any regulation, if for the time being in force, shall be paid without any deduction other than the deductions authorised by or under this or any other Act.

26. Remedy of aggrieved airman.—

(1) Any airman who deems himself wronged by any superior or other officer may, if not attached to a unit or detachment, complain to the officer under whose command or orders he is serving; and may, if attached to a unit or detachment, complain to the officer commanding the same.

(2) When the officer complained against is the officer to whom any complaint should, under sub-section (1), be preferred, the aggrieved airman may complain to such officer’s next superior officer, and if he thinks himself wronged by such superior officer, he may complain to 1[the Chief of the Air Staff].

(3) Every officer receiving any such complaint shall make as complete an investigation into it as may be possible for giving full redress to the complainant; or, when necessary, refer, the complaint to superior authority.

(4) Every such complaint shall be preferred in such manner as may from time to time be specified by the proper authority.

(5) The Central Government may revise any decision by 1[the Chief of the Air Staff] under sub-section (2), but subject thereto, the decision of 1[the Chief of the Air Staff] shall be final.

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1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief”.

27. Remedy of aggrieved officers.—

 Any officer who deems himself wronged by his commanding officer or any superior officer and who on due application made to this commanding officer does not receive the redress to which he considers himself entitled, may complain to the Central Government in such manner as may from time to time be specified by the proper authority.

28. Immunity from attachment.—

The arms, cloths, equipment, accoutrements or necessaries of any person subject to this Act shall not be seized, and the pay and allowances of any such person or any part thereof shall not be attached, by direction of any civil or revenue court or any revenue officer, in satisfaction of any decree or order enforceable against him.

29. Immunity from arrest for debt.—

(1) No person subject to this Act shall, so long as he belongs to the Forces, be liable to be arrested for debt under any process issued by, or by the authority of, any civil or revenue court or revenue officer.

(2) The judge of any such court or the said officer may examine into any complaint made by such person or his superior officer of the arrest of such person contrary to the provisions of this section, and may, by warrant under his hand, discharge the person, and award reasonable costs to the complainant, who may recover those costs in like manner as he might have recovered costs awarded to him by a decree against the person obtaining the process.

(3) For the recovery of such costs no court-fee shall be payable by the complainant.

30. Immunity of persons attending courts-martial from arrest.—

(1) No presiding officer or member of a court-martial, no judge advocate, no party to any proceeding before a court-martial, or his legal practitioner or agent, and no witness acting in obedience to a summons to attend a court-martial shall, while proceeding to, attending, or returning from, a court-martial, be liable to arrest under civil or revenue process.

(2) If any such person is arrested under any such process, he may be discharged by order of the court-martial.

31. Privileges of reservists.—

Every person belonging to 1[any Air Force Reserve or the Auxiliary Air Force] shall, when called out for, or engaged in, or returning from, training or service, be entitled to all the privileges accorded by sections 28 and 29 to a person subject to this Act.

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1. Subs. by Act 62 of 1952, sec. 35, for “the Air Force Reserve”.

32. Priority in respect of Air Force personnel’s litigation.—

(1) On the presentation to any court by or on behalf of any person subject to this Act of a certificate, from the proper air force authority, of leave of absence having been granted to or applied for by him for the purpose of prosecuting or defending any suit or other proceeding in such court, the court shall, on the application of such person, arrange, so far as may be possible, for the hearing and final disposal of such suit or other proceeding within the period of the leave so granted or applied for.

(2) The certificate from the proper air force authority shall state the first and last day of the leave or intended leave, and set forth a description of the case with respect to which the leave was granted or applied for.

(3) No fee shall be payable to the court in respect of the presentation of any such certificate, or of any application by or on behalf of any such person, for priority for the hearing of his case.

(4) Where the court is unable to arrange for the hearing and final disposal of the suit or other proceeding within the period of such leave or intended leave as aforesaid, it shall record its reasons for its inability to do so, and shall cause a copy thereof to be furnished to such person on his application without any payment whatever by him in respect either of the application for such copy or of the copy itself.

(5) If in any case a question arises as to the proper air force authority qualified to grant such certificate as aforesaid, such question shall be at once referred by the court to an officer having power not less than a group commander or equivalent commander whose decision shall be final.

Comments

The Rent Controller and the appellate authority under the East Punjab Urban Rent Restriction Act, 1949 are Courts within the meaning of section 32 and in case a personnel of the Air Force files a certificate from a proper Air Force authority in terms of that section, the Rent Controller is bound to decide the case expeditiously as contemplated in the section; Om Prakash Saini v. Daljit Singh, AIR 1980 P&H 185.

33. Saving of rights and privileges under other laws.—

The rights and privileges specified in the preceding sections of this Chapter shall be in addition to any others conferred on persons subject to this Act or on members of the regular Army, Navy and Air Force generally by any other law for the time being in force.

34. Offences in relation to the enemy and punishable with death.—

Any person subject to this Act who commits any of the following offences, that is to say,—

(a) shamefully abandons or delivers up any garrison, fortress, post, place or guard, committed to his charge, or which it is his duty to defend, or uses any means to compel or induce any commanding officer or other person to commit the said act; or

(b) intentionally uses any means to compel or induce any person subject to military, naval or air force law to abstain from acting against the enemy, or to discourage such person from acting against the enemy; or

(c) in the presence of the enemy, shamefully cast away his arms, ammunition, tools or equipment or misbehaves in such manner as to show cowardice; or

(d) treacherously holds correspondence with, or communicates intelligence to, the enemy or any person in arms against the Union; or

(e) directly or indirectly assists the enemy with money, arms, ammunition, stores or supplies; or

(f) treacherously or through cowardice sends a flag of truce to the enemy; or

(g) in time of war or during any air force operation, intentionally occasions a false alarm in action, camp or quarters or spreads reports calculated to create alarm or despondency; or

(h) in time of action leave his commanding officer or his post, guard, piqued, patrol or party without being regularly relieved or without leave; or

(i) having been made a prisoner of war, voluntarily serves with or aids the enemy; or

(j) knowingly harbours or protects an enemy not being a prisoner; or

(k) being a sentry in time of war or alarm, sleeps upon his post or is intoxicated; or

(l) knowingly does any act calculated to imperil the success of the military, naval or air forces of India or any forces co-operating therewith or any part of such forces; or

(m) treacherously or shamefully causes the capture or destruction by the enemy of any aircraft belonging to the forces; or

(n) treacherously uses any false air signal or alters or interferes with any air signal; or

(o) when ordered by his superior officer or otherwise under orders to carry out any air forces operations, treacherously or shamefully fails to use his utmost exertions to carry such orders into effect;

shall on conviction by court-martial, be liable to suffer death or such less punishment as is in this Act mentioned.

35. Offences in relation to the enemy and not punishable with death.—

Any person subject to this Act who commits any of the following offences that is to say,—

(a) is taken prisoner, by want of due precaution, or through disobedience of orders, or wilful neglect of duty, or having been taken prisoner, fails to rejoin his service when able to do so; or

(b) without due authority holds correspondence with or communicates intelligence to the enemy; or having come by the knowledge of any such correspondence or communication wilfully omits to discover it immediately to his commanding or other superior officer; or

(c) without due authority sends a flag of truce to the enemy; or

(d) negligently causes the capture or destruction by the enemy of any aircraft belonging to the Government; or

(e) when ordered by his superior officer, or otherwise under orders to carry out any warlike operations in the air, negligently or through other default fails to use his utmost exertions to carry such orders into effect;

shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned.

36. Offences punishable more severely on active service than at other times.—

Any person subject to this Act who commits any of the following offences, that is to say,—

(a) forces a safeguard, or forces or uses criminal force to a sentry; or

(b) breaks into any house or other place in search of plunder; or

(c) being a sentry sleeps upon his post, or is intoxicated; or

(d) without orders from his superior officer leaves his guard, piquet, patrol or post; or

(e) intentionally or through neglect occasions a false alarm in camp or quarters; or spreads reports calculated to create unnecessary alarm or despondency; or

(f) makes known the parole, watchword or countersign to any person not entitled to receive it; or knowingly gives a parole, watchword or countersign different from what he received; or

(g) without due authority alters or interferes with any air signal; shall, on conviction by court-martial,

if he commits any such offence when on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and

if he commits any such offence when not on active service, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

37. Mutiny.—

 Any person subject to this Act who commits any of the following offences, that is to say,—

 (a)   begins, incites, causes, or conspires with any other persons to cause, any mutiny in the military, naval or air forces of India or any forces co-operating therewith; or

 (b)   joins in any such mutiny; or

 (c)   being present at any such mutiny, does not use his utmost endeavours to suppress the same; or

 (d)   knowing or having reason to believe in the existence of any such mutiny, or of any intention to commit such mutiny or any such conspiracy, does not, without delay, give information thereof to his commanding or other superior officer; or

 (e)   endeavours to seduce any person in the military, naval or air forces of India from his duty or allegiance to the Union.

 shall, on conviction by court-martial, be liable to suffer death or such less punishment as is in this Act mentioned.

 38. Desertion and aiding desertion.—

(1) Any person subject to this Act who deserts or attempts to desert the service shall on conviction by court-martial,

if he commits the offence on active service or when under orders for active service, be liable to suffer death or such less punishment as is in this Act mentioned; and

if he commits the offence under any circumstances, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

(2) Any person subject to this Act who knowingly harbours any such deserter shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

(3) Any person subject to this Act who, being cognizant of any desertion or attempt at desertion of a person subject to this Act, does not forthwith give notice to his own or some other superior officer or take any steps in his power to cause such person to be apprehended, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.

39. Absence without leave.—

Any person subject to this Act who commits any of the following offences, that is to say,—

(a) absents himself without leave; or

(b) without sufficient cause overstays leave granted to him; or

(c) being on leave of absence and having received information from proper authority that any unit or detachment to which he belongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay; or

(d) without sufficient cause fails to appear at the time fixed, at the parade or place appointed for exercise or duty; or

(e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or

(f) when in camp or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or

(g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there;

shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.

40. Striking or threatening superior officer.

Any person subject to this Act who commits any of the following offences, that is to say, –

(a) Uses criminal force to, or assaults his superior officer; or

(b) Uses threatening language to such officer; or

(c) Uses insubordinate language to such officer;

Shall, on conviction by court-martial,

If such officer is at the time in the execution of his office or, if the offence is committed on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and

In other cases, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned:

 Provided that in the case of an offence specified in cause (c), the imprisonment shall not exceed five years.

41. Disobedience to superior officer.

(1) Any person subject to this Act who disobeys in such manner as to show a willful defiance of authority any lawful command given personally by his superior officer in the execution of his office whether the same is given orally or in writing or by signal or otherwise shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned.

(2) Any person subject to this Act who disobeys any lawful command given by his superior officer shall, on conviction by court-martial.

If he commits such offence when on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and

 If he commits such offence when not on active service, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.

42. Insubordination and obstruction.

 Any person subject to this Act who commits any of the following offences, that is to say, –

(a) Being concerned in any quarrel, affray or disorder, refuses to obey any officer, though of inferior rank, who orders him into arrest, or uses criminal force to or assaults any such officer; or

(b) Uses criminal force to, or assaults any person, whether subject to this Act or not, in whose custody he is lawfully placed, and whether he is or is not his superior officer; or

 (c) Resists an escort whose duty it is to apprehend him or to have him in charge; or

 (d) Breaks out of barracks, camp or quarters; or

(e) Neglects to obey any general, local or other order; or

(f) Impedes the provost-marshal or any person lawfully acting on his behalf, or, when called upon, refuses to assist in the execution of his duty a provost-marshal or any person lawfully acting on his behalf-, or

(g) Uses criminal force to or assaults any person bringing provisions or supplies to the Forces;

 Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend, in the case of the offences specified in clauses (d) and (e) to two years, and in the case of the offences specified in the other clauses to ten years, or such less punishment as is in this Act mentioned.

 43. Fraudulent enrolment.

Any person subject to this Act who commits any of the following offences, that is to say, –

(a) Without having obtained a regular discharge from the Air Force or otherwise fulfilled the conditions enabling him to enrol or enter, enrols himself in, or enters the said force or any part of the military or the naval forces of India; or

(b) Is concerned in the enrolment in any part of the Forces, of any person when he knows or has reason to believe such person to be so circumstanced that by enrolling he commits an offence against this Act,

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.

44. False answers on enrolment.

Any person having become subject to this Act who is discovered to have made at the time of enrolment a wilfully false answer to any question set forth in the prescribed form of enrolment which has been put to him by the enrolling officer before whom he appears for the purpose of being enrolled, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.

45. Unbecoming conduct

Any officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall, on conviction by court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and if he is a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned.

46. Certain forms of disgraceful conduct.

Any person subject to this Act who commits any of the following offences, that is to say, –

(a) Is guilty of any disgraceful conduct of a cruel, indecent or unnatural kind; or

(b) Malingers, or feigns, or produces disease or infirmity in himself, or intentionally delays his cure or aggravates his disease or infirmity; or

(c) With intent to render himself or any other person unfit for service, voluntarily causes hurt to himself or that person;

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

47. Ill-treating a subordinate.

Any officer, warrant officer or non-commissioned officer, who uses criminal force to or otherwise in-treats any person subject to this Act being his subordinate in rank or position, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

48. Intoxication.

 (1)

Any person subject to this Act who is found in a state of intoxication, whether on duty or not, shall, on conviction by court-martial, is he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and if he is not an officer, be liable, subject to the provisions of sub-section (2), to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.

(2) Where an offence of being intoxicated is committed by a person other than an officer when not on active service or not on duty, the period of imprisonment awarded shall not exceed six months.

 49. Permitting escape of person in custody.

Any person subject to this Act who commits any of the following offences, this is to say, –

(a) When in command of a guard, piquet, patrol or post, releases without proper authority, whether willfully or without reasonable excuse, any person committed to his charge or refuses to receive any prisoner or person so committed; or

(b) Wilfully or without reasonable excuse allows to escape any person who is committed to his charge, or whom it is his duty to keep or guard;

Shall, on conviction by court-martial, be liable, if he has acted wilfully, to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and if he has not acted wilfully, to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.

50. Irregularity in connection with arrest or confinement.

Any person subject to this Act who commits any of the following offences, that is to say, –

(a) Unnecessarily detains a person in arrest or confinement without bringing him to trial, or fails to bring his case before the proper authority for investigation; or

(b) Having committed a person to air force custody fails without reasonable cause to deliver at the time of such committal, or as soon as practicable, and in any case within forty-eight hours thereafter, to the officer or other person into whose custody the person arrested is committed, an account in writing signed by himself of the offence with which the person so committed is charged;

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.

51. Escape from custody.

 Any person subject to this Act, who, being lawful custody, escapes or attempts to escape, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.

52. Offences in respect of property.

Any person subject to this Act who commits any of the following offences, that is to say, –

(a) Commits theft of any property belonging to the Government, or to any military, naval or air force mess, band or institution, or to any person subject to military, naval or air force law; or

 (b) Dishonestly misappropriates or converts to his own use any such property; or

 (c) Commits criminal breach of trust in respect of any such property; or

(d) Dishonestly receives or retains any such property in respect of which any of the offences under clauses (a), (b) and (c) has been committed, knowing or having reason to believe the commission of such offence; or

(e) Willfully destroys or injures any property of the Government entrusted to him; or

 (f) Does any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person;

 Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned.

 53. Extortion and corruption.

Any person subject to this Act who commits any of the following offences, that is to say, –

 (a) Commits extortion; or

(b) Without proper authority exacts from any person money, provisions or service;

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned.

54. Making away with equipment.

Any person subject to this Act who commits any of the following offences, that is to say,-

 (a) Makes away with, or is concerned in making away with, any arms, ammunition, equipment, instruments, tools, clothing or any other thing being the property of the Government issued to him for his use or entrusted to him; or

(b) Loses by neglect anything mentioned in clause (a); or

(c) Sells, pawns, destroy or deface any medal or decoration granted to him;

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extends in the case of the offences specified in clause (a) to ten years, and in the case of the offences specified in the other clauses to five years, or such less punishment as is in this Act mentioned.

 55. Inquiry to property.

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) Destroys or injures any property mentioned in clause (a) of section 54, or any property belonging to any military, naval or air force mess, band or institution, or to any person subject to military, naval or air force law, or serving with, or attached to, the Air Force; or

 (b) Commits any act which causes damage to, or destruction of, any property of the Government by fire; or

 (c) Kills, injures, makes away with, ill-treats or loses any animal entrusted to him;

 Shall, on conviction by court-martial, be liable, if he has acted wilfully, to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and if he has acted without reasonable excuse to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

56. False accusation.

Any person subject to this Act who commits any of the following offences, that is to say, –

 (a) Makes a false accusation against any person subject to this Act, knowing or having reason to believe such accusation to be false; or

 (b) In making a complaint under section 26 or section 27 makes any statement affecting the character of any person subject to this Act, knowing or having reason to believe such statement to be false, or knowingly and willfully suppresses any material facts;

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.

57. Falsifying official documents and false declaration.

Any person subject to this Act who commits any of the following offences, that is to say,-

(a) In any report, return list, certificate, book or other document made or signed by him, or of the contents of which it is his duty to ascertain the accuracy, knowingly makes, or is privy to the making of, any false or fraudulent statement; or

(b) In any document of the description mentioned in clause (a) knowingly makes, or is privy to the making of, any omission, with intent to defraud; or

(c) Knowingly and with intent to injure any person, or knowingly and with intent to defraud, suppresses, defaces, alters or makes away with any document which it is his duty to preserve or produce; or

(d) Where it is his official duty to make a declaration respecting any matter, knowingly makes a false declaration; or

 (e) Obtains for himself, or for any other person, any pension, allowance or other advantage or privilege by a statement which is false, and which he either knows or believes to be false or does not believe to be true, or by making a or using a false entry in any book or record, or by making any document containing a false statement, or by omitting to make a true entry or document containing a true statement,

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned.

58. Signing in blank and failure to report

Any person subject to this Act who commits any of the following offences, that is to say,-

 (a) When singing any document relating to pay, arms, ammunition, equipment, clothing supplies or stores, or any property of the Government fraudulently leaves in bank any material part for which his signature is a voucher; or

(b) Refuses or by culpable neglect omits to make or send a report or return which it is his duty to make or send;

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

59. Offences relating to court-martial.

Any person subject to this Act who commits any of the following offences, that is to say, –

 (a) Being duly summoned or ordered to attend as a witness before a court-martial, wilfully or without reasonable excuse, makes default in attending; or

(b) Refuses to take an oath or make an affirmation legally required by a court-martial to be taken or made; or

 (c) Refuses to produce or deliver any document in his power or control legally required by a court-martial to be produced or delivered by him; or

(d) Refuses when a witness to answer any question which he is by law bound to answer; or

(e) Is guilty of contempt of court-martial by using insulting or threatening language, or by causing any interruption or disturbance in the proceedings of such court;

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.

 Error SECTION 60

61. Unlawful detention of pay.

Any officer, warrant officer or non-commissioned officer who, having received the pay of a person subject to this Act unlawfully detains or refuses to pay the same when due, shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned.

62. Offences in relation to aircraft and flying.

Any person subject to this Act who commits any of the following offences, that is to say, –

 (a) Wilfully or without reasonable excuse damages, destroys or loses any aircraft or aircraft material belonging to the Government; or

 (b) Is guilty of any act or neglect likely to cause such damage, destruction or loss; or

 (c) Without lawful authority disposes of any aircraft or aircraft material belonging to the Government; or

 (d) Is guilty of any act or neglect in flying, or in the use of any aircraft, or in relation to any aircraft or aircraft material, which causes or is likely to cause loss of life or bodily injury to any person; or

 (e) During a state or war, wilfully and without proper occasion, or negligently, causes the sequestration, by or under the authority of a neutral State, or the destruction in a neutral State, of any aircraft belonging to the Government;

Shall, on conviction by court-martial, be liable, if he has acted wilfully, to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned, and, in any other case, to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned

 63. Other offences relating to aircraft and flying.

Any person subject to this Act who commits any of the following offences, that is to say, –

(a) Signs any certificate in relation to an aircraft or aircraft material belonging to the Government without ensuring the accuracy thereof-, or

(b) Being the pilot of an aircraft belonging to the Government, flies it at a height less than such height as may be specified by 1[the Chief of the Air Staff] except while taking off or landing, or in such other circumstances as may be specified by 1[the Chief of the Air Staff]; or

 (c) Being the pilot of an aircraft belonging to the Government flies it so as to cause, or to be likely to cause, unnecessary annoyance to any person;

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to two years or such less punishment as is in this Act mentioned.

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief.

64. Disobedience of lawful command of captain of aircraft.

 Any person subject to this Act who whatever his rank, commits any of the following offences, that is to say, –

 (a) While he is in an aircraft disobeys any lawful command given by the captain of the aircraft, whether such captain is subject to this Act or not, as respects all matters relating to the flying or handling of the aircraft, or affecting the safety thereof, or

(b) Being the captain of a glider aircraft towed by another aircraft disobeys any lawful command given by the captain of the towing aircrafts, whether the latter is subject to this Act or not, as respects all matters aforesaid;

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned

65. Violation of good order and air force discipline.

Any person subject to this Act who is guilty of any act or omission which though not specified in this Act, is prejudicial to good order and air force discipline shall, on conviction by court-martial, be liable of suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

66. Miscellaneous offences.

Any person subject to this Act who commits any of the following offences, that is to say,-

 (a) Being in command at any post or on the march, and receiving a complaint that any one under his command has beaten or otherwise maltreated or oppressed any person, or has disturbed any fair or market, or committed any riot or treapass, fails to have due reparation made to the injured person or to report the case to the proper authority; or

(b) Be defiling any place of worship, or otherwise, intentionally insults the religion or wounds the religious feelings of any person; or

 (c) Attempts to commit suicide, and in such attempt does any act towards the commission of such offence; or

 (d) Being below the rank of warrant officer, when off duty, appears, without proper authority in or about camp or cantonments, or in or about, or when going to or returning from, any town or bazar, carrying a rifle, sword or other offensive weapon; or

(e) Directly or indirectly accepts or obtains, or agrees to accept or attemps to obtain, for himself or for any other person, any gratification as a motive or reward for procuring the enrolment of any person, or leave of absence, promotion or any other advantage or indulgence for any person in the service; or

(f) Commits any offence against the property or person of any in habitant of or resident in, the country in which he is serving;

Shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

67. Attempt.

 Any person subject to this Act who attempts to commit any of the offences specified in sections 34 to 66 inclusive, and in such attempt does any act towards the commission of the offence shall, on conviction by court-martial, where no express provision is made by this Act for the punishment of such attempt, be liable,

 If the offence attempted to be committed is punishable with death, to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned, and

 If the offence attempted to be committed is punishable with imprisonment, to suffer imprisonment for a term which may extend to one-half of the longest term provided for that offence or such less punishment as in this Act mentioned.

 68. Abetment of offences that have been committed

 Any person subject to this who abets the commission of any of the offences specified in sections 34 to 66 inclusive, shall, on conviction by court-martial, if the act abetted is committed in consequence of the abetment and no express provision is made by this Act, for the punishment of such abetment, be liable to suffer the punishment provided for that offence or such less punishment as is in this Act mentioned.

69. Abetment of offences punishable with death and not committed.

Any person subject to this Act who abets the commission of any of the offences punishable with death under sections 34, 37 and sub-section (1) of section 38 shall, on conviction by court-martial, if that offence be not committed in consequence of the abetment, and no express provision is made by this Act for the punishment of such abetment, be liable to suffer imprisonment for a ten-n which may extend to fourteen years or such less punishment as is in this Act mentioned.

70. Abetment of offences punishable with imprisonment and not committed.

Any person subject to this Act who abet the commission of any of the offences specified in sections 34 to 66 inclusive, and punishable with imprisonment shall, on conviction by court-martial, if that offence be not committed in consequence of the abetment, and no express provision is made by this Act for the punishment of such abetment, be liable to suffer imprisonment for a term which may extend to one-half of the longest term provided for that offence or such less punishment as is in this Act mentioned.

71. Civil offences.

Subject to the provisions of section 72, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this act and, if charged there with under this section shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,-

(a) If the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned, for the offence by the aforesaid law and such less punishment as is in this Act mentioned; and

 (b) In any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by any law in force in India, or imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

72. Civil offences not triable by court-martial.

 A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act and shall not be tried by a court-martial, unless he commits any of the said offences-

(a) While on active service, or

 (b) At any place outside India, or

(c) At a frontier post specified by the said Government by notification in this behalf.

1[* * *]

1. Omitted by Act 13 of 1975, sec. 2.

73. Punishments awardable by courts-martial.

Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by courts-martial according to the scale following, that is to say, –

 (a) Death;

(b) Transportation for life or for any period not less than seven years, in respect of civil offences,

 (c) Imprisonment, either rigorous or simple, for any period not exceeding fourteen years;

 (d) Detention for a term not exceeding two years in the case of airman;

(e) Cashiering, in the case of officers;

(f) Dismissal from service;

 (g) Reduction to the ranks or to a lower rank or classification, in the case of warrant officers and non-commissioned officers:

 Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as an airman.

 (h) Forfeiture of seniority of rank, in the case of officers, warrant officers and non commissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length of service;

 (i) Forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;

 (j) Severe reprimand or reprimand, in the case of officers, warrant officers and non commissioned officers;

(k) Forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service;

(l) Forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal;

 (m) Stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.

74. Alternative punishment awardable by court-martial.

Subject to the provisions of this Act, a court-martial may, on convicting a person subject to this Act of any of the offences specified in sections 34 to 70 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the scale set out in section 73, regard being had to the nature and degree of the offence.

75. Combination of punishments.

A sentence of a court-martial may award in addition to, or without any one other punishment, the punishment specified in clause (e) or clause (f) of section 73 and any one or more of the punishments specified in clauses (g) to (m) of that section.

76. Cashiering of officers

An officer shall be sentenced to be cashiered before he is awarded any of the punishments specified in clauses (a) to (c) of section 73.

77. Field punishment.

(1) Where any person subject to this Act and under the rank of warrant officer commits any offence on active service, it shall be lawful for a court-martial to award for that offence any such punishment as is prescribed as a field punishment.

(2) Field punishment shall be of the character of personal restraint or of hard labour but shall not be of a nature to cause injury to life or limb and shall not include flogging.

78. Position of field punishment in scale of punishments.

Field punishment shall for the purpose of commutation be deemed to stand next below dismissal in the scale of punishments specified in section 73.

79. Result of certain punishments in the case of a warrant officer or a noncommissioned officer.

 A warrant officer or a non-commissioned officer sentenced by a court-martial to transportation, imprisonment, detention, field punishment or dismissal from the service shall be deemed to be reduced to the ranks.

80. Retention in the ranks of a person convicted on active service.

When, on active service, any enrolled person has been sentenced by a court-martial to dismissal, or to transportation, imprisonment or detention, whether combined with dismissal or not, the prescribed officer may direct that such person may be retained to serve in the ranks and such service shall be reckoned as part of his term of transportation, imprisonment or detention, if any.

81. Punishments otherwise than by court-martial.

Punishments may also be inflicted in respect of offences committed by persons subject to this Act without the intervention of a court-martrial and in the manner stated in sections 82 and 86.

82. Punishment of persons other than officers and warrant officers

Subject to thee provisions of section 84, a commanding officer or such other officer as is, with the consent of the Central Government, specified by 1[the Chief of the Air Staff], may, in the prescribed manner, proceed against a person subject to this Act otherwise than as an officer or warrant officer who is charged with an offence under this Act and award such pet-soil, to the extent prescribed, one or more of the following punishments, that is to say, –

 (a) Detention up to twenty-eight days;

(b) Confinement to the camp up to fourteen days;

(c) Extra guards or duties not exceeding three in number;

(d) Deprivation of acting rank;

 (e) Forfeiture of badge pay;

(f) Serve reprimand or reprimand;

(g) Fine upto fourteen day’s pay in any one month;

(h) Penal deductions under clause (g) of section 92;

(i) Admonition;

 (j) Any prescribed field punishment upto twenty- eight days, in the case of a person on active service-

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief’.

83. Requirement of sanction in certain cases.

(1) Subject to the provisions of sub- section (2), the punishments mentioned in section 82 shall not be inflicted in respect of an offence under any of the sections 34, 35 and 36 when committed on active service or under any of the sections 37, 3 8 40, 42(f) and (g), 43, 47, 52, 60, 62, 63, 64, 66(a), (b) and (c) and 71 except with the previous sanction in writing of an officer having power to convene a district court-martial.

(2) The said punishments may be awarded without such sanction in the case of any offence, other than an offence under section 34 of section 71, committed by persons who have not been enrolled as combatants.

84. Limit of punishments under section 82.

(1) An award of punishment under section 82 shall not include field punishment in addition to one or more of the punishments specified in clauses (a) and (b) of that section.

(2) In the case of an award of two or more of the punishments specified in clauses (a),(b) and (c) of the said section, the punishment specified in clause (b) or clause (c) shall take effect only at the end of the punishment specified in clause (a).

(3) When two or more of the punishments specified in the said clauses (a) and (b) are awarded to a person conjointly, or when already undergoing one or more of the said punishments, the whole extent of the punishments shall not exceed in the aggregate forty-two days.

(4) The punishments specified in clauses (a), (b), (c), (e), (g), and (j) of section 82 shall not be awarded to any person who is of the rank of non-commissioned officer or was, at the time of committing the offence for which he is punished, of such rank.

(5) The punishment specified in clause (f) of the said section shall not be awarded to any person below the rank of a non-commissioned officer.

85. Punishments in addition to those specified in section 82.

1[The Chief of the Air Staff] may, with the consent of the Central Government, specify such other punishments as may be awarded under section 82 in addition to or without any of the punishments specified in the said section, and the extent to which such other punishments may be awarded.

 1. Subs. by Act 19 of 1955. sec. 2 and Sch., for “the Commander-in-Chief’.

86. Punishment of officers and warrant officers.

An officer having power to convene a general court-martial or such other officer as is with the consent of the Central Government, specified by 1[the Chief of the Air Staff may, in the prescribed manner, proceed against an officer below the rank of squadron leader or a warrant officer, who is charged with an offence under this act, and award one or more of the following punishments, that is to say, –

 (a) Forfeiture of seniority, or in the case of any of them whose promotion depends upon length of service, forfeiture of service for the purpose of promotion for a period not exceeding twelve months, but subject to the right of the accused previous to the award to elect to be tried by a court-martial.

(b) Severe reprimand or reprimand;

(c) Stoppage of pay and allowance until any proved loss or damage occasioned by the offence of which he is convicted is made good but subject to the right of the accused specified in clause (a);

 (d) Forfeiture of pay and allowances for a period not exceeding three months for an offence under clause (e) of section 42 in so far as it consists of neglect to obey flying orders or under section 62 or section 63.

————

1.Came into force on 10th November, 2006, vide S.O. 1912(E), dated 8th November, 2006.

87. Transmission of proceedings.

In every case in which punishment has been awarded under section 86, certified true copies of the proceedings shall be forwarded, in the prescribed manner, by the officer awarding the punishment, to a superior air force authority as defined in section 89.

88. Review of proceedings.

If any punishment awarded under section 86 appears to a superior air force authority as defined in section 89 to be illegal, unjust or excessive, such authority may cancel, vary or remit the punishment and make such other direction as may be appropriate in the circumstances of the case.

89. Superior Air Force authority.

 For the purposes of sections 87 and 88, a “superior air force authority” means-

(a) In the case of punishment awarded by a commanding officer, any officer superior in command to such commanding officer;

(b) In the case of punishments awarded by any other authority, the Central Government, 1[the Chief of the Air Staff] or other officer specified by 1[the Chief of the Air Staff]

————

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief’.

90. Collective fines.

 (1) Whenever any weapon or part of a weapon forming part of the equipment of a unit or detachment is lost or stolen, the officer commanding such unit or detachment may, after obtaining the report of a court of inquiry, impose a collective fine upon the warrant officers, non-commissioned officers and men of such unit, or upon so many of them as, in his judgment, should be held responsible for such loss or theft.

(2) Such fine shall be assessed as a percentage on the pay of the individuals on whom it falls.

91. Deduction from pay and allowances of officers.

The following penal deductions may be made from the pay and allowances of an officer, that is to say, –

 (a) All pay and allowances due to an officer or every day he absents himself without leave unless a satisfactory explanation has been given to his commanding officer and has been approved by the Central Government.

(b) All pay and allowances for every day while he is in custody or under suspension from duty on a charge for an offence of which he is afterwards convicted by a criminal court or a court-martial or by an officer exercising authority under section 86;

(c) Any sum required to make good the pay of any person subject to this Act which he has unlawfully retained or unlawfully refused to pay;

(d) Any sum required to make good such compensation for any expenses, loss, damage or destruction Occasioned by the commission of an offence as may be determined by the court-martial by whom he is convicted of such offence, or by an officer exercising authority under section 86;

(e) All pay and allowances ordered by a court-martial or an officer exercising authority under section 86 to be forfeited or stopped.

(f) Any sum required to pay a fine awarded by a criminal court or a court-Martial exercising jurisdiction under section 71;

(g) Any sum required to make good any loss, damage, or destruction of public service property which, after due investigation, appears to the Central Government to have been occasioned by the wrongful act or negligence on the part of the officer;

(h) All pay and allowances forfeited by order of the Central Government if the officer is found by a court of inquiry constituted by 1[the Chief of the Air Staff] in this behalf to have deserted to the enemy, or while in enemy hands to have served with, or under the orders of, the enemy or in any manner to have aided the enemy, or to have allowed himself to be taken by prisoner the enemy through want of due precaution or through disobedience of orders or wilful neglect of duty, or having been taken prisoner by the enemy, to have failed to rejoin his service when it was possible to do so;

(i) Any sum required by order of the Central Government to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the cost of any relief given by the said Government to the said wife or child.

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief”.

92. Deductions from pay and allowances of airmen.

Subject to the provision section 95, the following penal deductions may be made from the Pay and allowances of an airman, that is to say, –

(a) All pay and allowances for every day of absence either on desertion or without leave, or as a prisoner of war and for every day of transportation or imprisonment awarded by a criminal court, or a court-martial, or of detention, or field punishment awarded by a court-martial or an officer exercising authority under section 82;

(b) All pay and allowances for every day while he is in custody on a charge for an offence of which he is afterwards convicted by a criminal court or a court-martial, or on a charge of absence without leave for which he is after wards awarded detention or filed punishment by an officer exercising authority under section 82;

(c) All pay and allowances for every day on which he is in hospital on account of sickness certified by the medical officer attending on him to have been caused by an offence under this Act committed by him;

(d) For every day on which he is in hospital on account of sickness certified by the medical officer attending on him to have been caused by his own misconduct or imprudence, such sum as may be specified by order of the Central Government or by such officer as may be specified by that Government;

(e) All pay and allowances ordered by a court-martial or by an officer exercising authority under section 82 or section 86 to be forfeited or stopped;

(f) All pay and allowances for every day between his being recovered from the enemy and his dismissal from the service in consequence of his conduct when being taken prisoner by, or while in the hands of, the enemy;

(g) Any sum required to make good such compensation for any expenses, loss, damage or destruction caused by him to the Central Government or to any building or property as may be awarded by his commanding officer;

(h) Any sum required to pay a fine awarded by a criminal court, a court-martial exercising jurisdiction under section 71, or an officer exercising authority under section 82 or section 90.(i) Any sum required by order of the Central Government or any prescribed officer to be paid for the maintenance of his wife or his legitimate or illegitimate child or to wards the cost of any relief given by the said Government to the said wife or child

93. Computation of time of absence or custody.

For the purposes of clauses (a) and (b) of section 92-

(a) No person shall be treated as absent or in custody for a day unless the absence or custody has lasted, whether wholly in one day, or partly in one day, and partly in another, for six consecutive hours or upwards;

(b) Any absence or custody for less than a day may be reckoned as absence or custody for a day if such absence or custody prevented the absence from fulfilling any air force duty which was thereby thrown upon some other person;

(c) Absence or custody for twelve consecutive hours or upwards may be reckoned as absence or custody for the whole of each day during any portion of which the person was absent or in custody;

 (d) A period of absence, or imprisonment, which commences before and ends after, midnight, may be reckoned as a day.

94. Pay and allowances during trial.

In the case of any person subject to this Act who is in custody or under suspension from duty on a charge for an offence, the prescribed officer may direct that the whole or any part of the pay and allowances of such person shall be withheld, pending the result of his trial on the charge against him, in order to give effect to the provisions of clause (b) of sections 91 and 92.

95. Limit of certain deductions.

 The total deductions from the pay and allowances of a person made under clauses (e) and (g) to (i) of section 92 shall not, except where he is sentenced to dismissal, exceed in any one month one-half of his pay and allowances for that month.

96. Deduction from public money due to a person.

 1Any sum authorized by this Act to be deducted from the pay and allowances of any person may, without prejudice to any other mode of recovering the same, be deducted from any public money due to him other than a pension.

————

1. Came into force on 10th November, 2006, vide S.O. 1912(E), dated 8th November, 2006.

97. Pay and allowances of prisoner of war during inquiry into his conduct.

Where the conduct of any person subject to this Act when being taken prisoner by, or while in the hands of, the enemy, is to be inquired into under this Act or any other law, 1[the Chief of the Air Staff] or any officer authorised by him may order that the whole or any part of the pay and allowances of such person shall be withheld pending the result of such inquiry.

————

1.Came into force on 10th November, 2006, vide S.O. 1912(E), dated 8th November, 2006.

98. Remission of deductions.

Any deduction from pay and allowances authorised by this Act may be remitted in such manner, and to such extent, and by such authority, as may from time to time be prescribed.

99. Provision for dependents of prisoner of war from remitted deductions.

In the case of all persons subject to this Act, being prisoners of war, whose pay and allowances have been forfeited under clause (h) of section 91 or clause (a) of section 92, but in respect of whom a remission has been made under section 98, it shall be lawful for proper provision to be made by the prescribed authorities out of such pay and allowances for any dependents of such persons, and any such remission shall in that case be deemed to apply only to the balance thereafter remaining of such pay and allowances.

100. Provision for dependents of prisoner of war from his pay and allowances.

It shall be lawful for proper provision to be made by the prescribed authorities for any dependents of any person subject to this Act, who is a prisoner of war or is missing, out of his pay and allowance.

101. Period during which a person is deemed to be a prisoner of war.

For the purposes of sections 99 and 100, a person shall be deemed to continue to be a prisoner or war until the conclusion of any inquiry into his conduct such as is referred to in section 97, and if he is cashiered or dismissed from the service in consequence of such conduct, until the date of such cashiering or dismissal.

102. Custody of offenders.

(1) Any person subject to this Act who is charged with an offence may be taken into air force custody.

 (2) Any such person may be ordered into air force custody by any superior officer.

(3) Any officer may order into air force custody any officer though he may be of a higher rank, engaged in a quarrel, affray or disorder.

103. Duty of commanding officer in regard to detention.

(1) It shall be the duty of every commanding officer to take care that a person under his command when charged with an offence is not detained in custody for more than forty-eight hours after the committal of such person into custody is reported to him, without the charge being investigated, unless investigation with in that period seems to him to be impracticable with due regard to the public service.

(2) Every case of a person being detained in custody beyond a period of forty-eight hours, and the reason thereof shall be reported by the commanding officer to the air or other officer to whom application would be made to convene a general or district court-martial for the trial of the person charged.

 (3) In reckoning the period of forty-eight hours specified in sub-section (1), Sundays and public holidays shall be excluded.

(4) Subject to the provisions of this Act, the Central Government may make rules providing for the manner in which and the period for which any person subject to this Act may be taken into and detained in air force custody, pending the trial by any competent authority for any offence committed by him.

104. Interval between commital and court-martial.

In every case where any such person as is mentioned in section 102 and as is not on active service remains in such custody for a longer period than eight days, without a court-martial for his trial being ordered to assemble, a special report giving reasons for the delay shall made by his commanding officer in the manner prescribed; and a similar report shall be forwarded every eight days until a court-martial is assembled or such person is released from custody.

105. Arrest by civil authorities.

Whenever any person subject to this Act, who is accused of any offence under this Act, is within the jurisdiction of any magistrate or police officer, such magistrate or police officer shall aid in the apprehension and delivery to air force custody of such person upon receipt of a written application to that effect signed by his commanding officer.

106. Capture of deserters.

(1) Whenever any person subject to this Act deserts, the commanding officer of the unit or detachment to which he belongs, shall give written information of the desertion to such civil authorities as, in his opinion, may be able to afford assistance towards the capture of the deserter; and such authorities shall thereupon take steps for the apprehension of the said deserter in like manner as if he were person for whose apprehension a warrant had been issued by a magistrate, and shall deliver the deserter, when apprehended, into air force custody.

(2) Any police officer may arrest without warrant any person reasonably believed to be subject to this Act, and to be a deserter or to be travelling without authority, and shall bring him without delay before the nearest magistrate, to be dealt with according to law.

 107. Inquiry into absence without leave.

(1) When any person subject to this Act has been absent from his duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be assembled, and such court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment instruments, clothing or necessaries, and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof, and the said deficiency, if any; and the commanding officer of the unit to which the person belongs shall enter in the court-martial book of the unit a record of declaration.

 (2) If the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purposes of this Act, be deemed to be a deserter.

108. Provost-marshals.

(1) Provost-marshals may be appointed by 1[the Chief of the Air Staff] or by any prescribed officer.

(2) The duties of a provost marshal are to take charge of person confined for any offence, to preserve good order and discipline, and to prevent breaches of the same by persons serving in, or attached to, the Air Force.

(3) A provost-marshal may at any time arrest and detain for trial any person subject to this Act who commits, or is charged with, an offence, and may also carry into effect any punishment to be inflicted in pursuance of the sentence awarded by a court-martial, or by an officer exercising under section 82 but shall not inflict any punishment on his own authority:

Provided that no officer shall be so arrested or detained otherwise than on the order of another officer.

(4) For the purposes of sub-sections (2) and (3), a provost-marshal shall be deemed to include a provost- marshal appointed under the Army Act or the Navy Act and any person legally exercising authority under him or on his behalf.

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief’.

109. Different kinds of courts-martial.

For the purposes of this Act there shall be three kinds of courts-martial, that is to say, —

(a) General courts-martial;

(b) District courts-martial; and

(c) Summary general courts-martial.

110. Power to convene a general court-martial.

A general court-martial may be convened by the Central Government or 1[the Chief of the Air Staff] or by any officer empowered in this behalf by warrant of 1[the Chief of the Air Staff].

————

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief’.

111. Power to convene a district court-martial.

A district court-martial may be convened by an officer having power to convene a general court-martial, or by any officer empowered in this behalf by warrant of any such officer.

112. Contents of warrants issued under sections 110 and 111.

 A warrant issued under section 110 or section 111 may contain such restrictions, reservations or conditions as the officer issuing it may think fit.

113. Power to convene a summary general court-martial.

The following authorities shall have the power to convene a summary general court-martial, namely: –

 (a) An officer empowered in this behalf by an order of the Central Government or of 1[the Chief of the Air Staff];

(b) On active service, the officer commanding the forces in the field, or any officer empowered by him in this behalf,

(c) An officer commanding any detached portion of the Air Force on active service when, in his opinion, it is not practicable, with due regard to discipline and the exigencies of the service, that an offence should be tried by a general court-martial.

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief’.

114. Composition of general court-martial.

 A general court-martial shall consist of not less than five officers, each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of flight lieutenant.

 115. Composition of district court-martial.

 A district court-martial shall consist of not less than three officers, each of whom has held a commission for not less than two whole years.

116. Composition of summary general court-martial.

A summary general court-martial shall consist of not less than three officers.

117. Dissolution of court-martial.

(1) If a court-martial after the commencement of a trial is reduced below the minimum number of officers required by this Act, it shall be dissolved.

(2) If on account of the illness of the judge advocate or of the accused before the finding, it is impossible to continue the trial, a court-martial shall be dissolved.

(3) The officer who convened a court-martial may dissolve such court-martial if it appears to him that the exigencies of the service or the necessities of discipline render it impossible or inexpedient to continue the said court-martial.

(4) Where a court-martial is dissolved under this section, the accused may be tried again.

118. Powers of general and summary general courts-martial.

A general or summary general court-martial shall have power to try any person subject to this Act for any offence punishable therein and to pass any sentence authorised thereby.

120. Prohibition on second trial.

When any person subject to this Act has been acquitted or convicted on an offence by a court-martial or by a criminal court, or has been dealt with under section 82 or section 86, he shall not be liable to be tried again for the same offence by a court-martial or dealt with under the said sections.

121. Period of limitation for trial.

(1) Except as provided by sub-section (2), no trial by court-martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years from the date of such offence.

 (2) The provisions of sub-section (1) shall not apply to a trial for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in section 37.

(3) In the computation of the period of time mentioned in sub-section (1), any time spent by such person as a prisoner of war, or in enemy territory, or in evading arrest after the commission of the offence, shall be excluded.

(4) No trial for an offence of desertion, other than desertion on active service or of fraudulent enrolment shall be commenced if the person in question, not being an officer has, subsequently to the commission of the offence, served continuously in an exemplary manner for not less than three years with any portion of the Air Force.

122. Liability of offender who ceases to be subject to Act.

(1) Where an offence under this Act had been committed by any person while subject to this Act, and he has ceased to be so subject, he may be taken into and kept in air force custody, and tried and punished for such offence as if he continued to be so subject.

(2) Except as provided by sub-sections (3) and (4) any such person shall not be tried for an offence, unless his trial commences within six months after he has ceased to be subject to this Act.

(3) The provisions of sub-section (2) shall not apply to the trial of any such person for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in section 37.

(4) Nothing contained in sub-section (2) shall affect the jurisdiction of a civil court to try any offence triable by such court as well as by a court-martial.

(5) When a person subject to this Act is sentenced by a court-martial to transportation or imprisonment, this Act shall apply to him during the term of his sentence, though he is cashiered or dismissed from the Air Force or has otherwise ceased to be subject to this Act, and he may be kept, removed, imprisoned and punished as if he continued to be subject to this Act.

(6) When a person subject to this Act is sentenced by a court-martial to death, this Act shall apply to him till the sentence is carried out.

123. Place of trial.

Any persons subject to this Act who commits any offence against it may be tried and punished for such offence in any place whatever.

124. Choice between criminal court and court-martial.

When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of 1[the Chief of the Air Staff], the officer commanding any group, wing or station in which the accused prisoner is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court-martial, to direct that the accused person shall be detained in air force custody.

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief’.

125. Power of criminal court to require delivery of offender.

(1) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence it may, by written notice, require the officer referred to in section 124 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law or to postpone proceedings pending a reference to the Central Government.

(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government whose order upon such reference shall be final.

126. Successive trials by a criminal court and a court-martial.

 (1) A person convicted or acquitted by a court-martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence, or on the same facts.

(2) If a person sentenced by a court-martial under this Act or punished under section 82 or section 86 is afterwards tried and convicted by a criminal court for the same offence, or on the same facts, that court shall, in awarding punishment have regard to the punishment he may already have undergone for the said offence.

127. Presiding officer.

At every general, district or summary general court-martial the senior member shall be the presiding officer.

128. Judge advocate.

Every general court-martial shall, and every district or summary general court-martial’ may, be attended by a judge advocate, who shall be either an officer belonging to the department of the Chief Legal Adviser or if no such officer is available, an officer approved by the Chief Legal Adviser or any of his deputies.

129. Challenges

(1) At all trials by general, district or summary general courts-martial, as soon as the court is assembled, the names of the presiding officer and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the court.

(2) If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the court shall, in the absence of the challenged officer, decide on the objection.

(3) If the objection is allowed by one-half or more of the votes of the officers entitled to vote, the objection shall be allowed, and the member objected to shall retire, and his vacancy may be filled in the prescribed manner by another officer, subject to the same right of the accused to object.

(4) When no challenge is made, or when challenge has been made and disallowed, or the place of every officer successfully challenged has been filled by another officer to whom no objection is made or allowed, the court shall proceed with the trial.

130. Oaths of member, Judge advocate and witness

(1) An oath or affirmation in the prescribed manner shall be administered to every member of every court-martial and to the judge advocate before the commencement of the trial.

(2) Every person living evidence before a court-martial shall be examined after being duly sworn or affirmed in the prescribed form.

 (3) The provisions of sub-section (2) shall not apply where the witness is a child under twelve years of a-e and the court-martial is of opinion that though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation.

 131. Voting by members.

 (1) Subject to the provisions of sub-sections (2) and (3), every decision of a court-martial shall be passed by an absolute majority of votes; and where there is an equality of votes on either the finding or the sentence, the decision shall be in favour of the accused.

 (2) No sentence of death shall be passed by a general court-martial without the concurrence of at least two-thirds of the members of the court.

 (3) No sentence of death shall be passed by a summary general court-martial without the concurrence of all the members.

 (4) In matters other than a challenge or the finding or sentence, the presiding officer shall have a casting vote.

132. General rule as to evidence.

 The Indian Evidence Act, 1872, (1 of 1872) shall, subject to the provisions of this Act, apply to all proceedings before a court-martial.

133. Judicial notice.

A court-martial may take judicial notice of any matter within the general air force knowledge of the members.

 134. Summoning witnesses.

 (1) The convening officer, the presiding officer of a court-martial, the judge advocate or the commanding officer of the accused person, may, by summons under his hand, require the attendance, at a time and place to be mentioned in the summons, of any person either to give evidence or to produce any document or other thing.

(2) In the case of a witness amenable to air force authority, the summons shall be sent to his commanding officer, and such officer shall serve it upon him accordingly.

(3) In the case of any other witness, the summons shall be sent to the magistrate within whose jurisdiction he may be or reside, and such magistrate shall give effect to the summons as if the witness were required in the court of such magistrate.

(4) When a witness is required to produce any particular document or other thing in his possession or power, the summons shall describe it with reasonable precision.

135. Documents exempted from production.

(1) Nothing in section 134 shall be deemed to affect the operation of sections 123 and 124 of the Indian Evidence Act, 1872 (1of 1872), or to apply to any letter, postcard, telegram or other document in the custody of the postal or telegraph authorities.

(2) If any document in such custody is, in the opinion of any district magistrate, chief presidency magistrate, High Court or Court of Session, wanted for the purpose of any court-martial, such magistrate or court may require the postal or telegraph authorities, as the case may be, to deliver such document to such person as such magistrate or court may direct.

(3) If any such document is, in the opinion of any other magistrate or of any commissioner of police or district superintendent of police, wanted for any such purpose, he may require the postal or telegraph authorities, as the case may be, to cause search to be made for and to detain such document pending the orders of any such district magistrate, chief presidency magistrate or High Court or Court of Session.

136. Commissions for examination of witnesses.

(1) Whenever, in the course of a trial by court-martial, it appears to the court that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, in the circumstances of the case, would be unreasonable, such court may address the chief Legal Adviser in order that a commission to take the evidence of such witness may be issued.

(2) The Chief Legal Adviser may then, if he thinks necessary, issue a commission to any district magistrate or magistrate of the first class, with in the local limits of whose jurisdiction such witness resides, to take the evidence of such witness.

(3) The magistrate or officer to whom the commission is issued, or, if he is the district magistrate he or such magistrate of the first class as he appoints in this behalf, shall proceed to the place where the witness is or shall summon the witness before him and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of warrant-cases under the Code of Criminal Procedure, 1898 (5 of 1898), or any corresponding law in force in 1[the State of Jammu and Kashmir].

(4) When the witness resides in a tribal area or in any place outside India, the commission may be issued in the manner specified in Chapter XL of the Code of Criminal Procedure, 1898 (5 of 1898), or of any corresponding law in force in 1[the State of Jammu and Kashmir].

(5) In this and the next succeeding section, the expression “Chief Legal Adviser” includes a Deputy Chief Legal Adviser.

1. Subs. by the Adaptation of laws (No. 3) Order 1956, for “a Part B State”.

137. Examination of a witness on commission.

(1) The prosecutor and the accused person in any case in which a commission is issued under section 136 may respectively forward any interrogatories in writing which the court may think relevant to the issue, and the magistrate or officer executing the commission shall examine the witness upon such interrogatories.

(2) The prosecutor and the accused person may appear before such magistrate or officer by counsel or except in the case of an accused person in custody, in person, and may examine, cross-examine and re-examine, as the case may be, the said witness.

(3) After a commission issued under section 136 has been duly executed, it shall be returned, together with the deposition of the witness examined thereunder to the Chief Legal Adviser.

 (4) On receipt of a commission and deposition returned under sub-section (3), the Chief Legal Adviser shall forward the same to the court at whose instance the commission was issued or, if such court has been dissolved, to any other court convened for the trial of the accused person; and the commission, the return thereto and the deposition shall be open to inspection by the prosecutor and the accused person, and may, subject to all just exceptions, be fread in evidence in the case by either the prosecutor or the accused, and shall form part of the proceedings of the court.

(5) In every case in which a commission is issued under section 136, the trial may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.

138. Conviction of offence not charged.

(1) A person charged before a court-martial with desertion may be found guilty of attempting to desert or of being absent without leave.

(2) A person charged before a court-martial with attempting to desert may be found guilty of being absent without leave.

(3) A person charged before a court.-martial with using criminal force may be found guilty of assault.

(4) Person charged before a court-martial with using threatening language may be found guilty of using insubordinate language.

(5) A person charged before a court-martial with any one of the offences specified in clauses (a), (b), (c) and (d) of section 52 may be found guilty of any other of these offences with which he might have been charged.

 (6) A person charged before a court-martial with an offence punishable under section 71 may be found guilty of any other offence of which he might have been found guilty if the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), were applicable.

(7) A person charged before a court-martial with any offence under this Act may, on failure of proof of an offence having been committed in circumstances involving a more severe punishment, be found guilty of the same offence as having been committed in circumstances involving a less severe punishment.

 (8) A person charged before a court-martial with any offence under this Act may be found guilty of having attempted or abetted the commission of that offence, although the attempts or abetment is not separately charged.

139. Presumption as to signatures.

In any proceeding under this Act, any application, certificate, warrant, reply or other document purporting to be signed by an officer in the service of the Government shall, on production, be presumed to have been duty signed by the person by whom and in the character in which it purports to have been signed, until the contrary is shown.

140. Enrolment paper

(1) Any enrolment paper purporting to be signed by an enrolling officer shall, in proceeding under this Act, be evidence of the person enrolled having given the answers to questions which he is therein represented as having given.

(2) The enrolment of such person may be proved by the production of the original or a copy of his enrolment paper purporting to be certified to be a true copy by the officer having the custody of the enrolment paper.

141. Presumption as to certain documents.

(1) A letter, return or other document respecting the service of any person in, or the cashiering, dismissal or discharged of any person from, any portion of the Air Force, or respecting the circumstance of any person not having served in, or belonged to, any portion of the Forces, if purporting to be signed by or on behalf of the Central Government or 1[the Chief of the Air Staff], or by any prescribed officer, shall be evidence of the facts stated in such letter, return or other document.

 (2) An Army, Navy or Air Force List or Gazette purporting to be published by authority shall be evidence of the status and rank of the officers or warrant officers therein mentioned, and of any appointment held by them and of the unit or branch of the services to which they belong.

 (3) Where a record is made in any service book in pursuance of this Act or of any rules made thereunder or otherwise in pursuance of air force duty, and purports to be signed by the commanding officer or by the officer whose duty it is to make such record, such record shall be evidence of the facts therein stated.

(4) A copy of any record in any service book purporting to be certified to be a true copy by the officer having custody of such book shall be evidence of such record.

(5) Where any person subject to this Act is being tried on a charge of desertion or of absence without leave, and such person has surrendered himself into the custody of any officer or other person subject to this Act, or any portion of the Air Force, or has been apprehended by such officer or person, a certificate purporting to be signed by such officer, or by the commanding officer of that portion of the Air Force, or by the commanding officer of the unit, or detachment to which such person belongs. as the case may be, and stating the fact, date and place of such surrender or apprehension, and the manner in which he was dressed, shall be evidence of the matters so stated.

 (6) Where any person subject to this Act is being tried on a charge of desertion or of absence without leave, and such person has surrendered himself into the custody of, or has been apprehended by, a police officer not below the rank of an officer in charge of a police station, a certificate purporting to be signed by such police officer and stating the fact, date and place of such Surrender or apprehension and the manner in which he was dressed shall be evidence of the matters so stated.

 (7) Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government upon any matter or thing duly submitted to him for examination or analysis and report may be used as evidence in any proceeding under this Act.

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief

142. Reference by accused to Government officer.

(1) If at any trial for desertion or absence without leave, overstaying leave or not rejoining when warned for service, the person tried states in his defence any sufficient or reasonable excuse for his unauthorized absence, and refers in support thereof to any officer in the service of the Government, or if it appears that any such officer is likely to prove or disprove the said statement in the defence, the court shall address such officer and adjourn the proceedings until his reply is received.

(2) The written reply of any officer so referred to shall, if signed by him, be received in evidence and have the same effect as if made on oath before the court.

(3) If the court is dissolved before the receipt of such reply, or if the court omits to comply with the provisions of this section, the convening officer may, at his discretion, annul the proceedings and order a fresh trial.

143. Evidence of previous convictions and general character.

(1) When any person subject to this Act has been convicted by a court-martial of any offence, such court-martial may inquire into, are receive and record evidence of any previous convictions of such person, either by a court-martial or by a criminal court, or any previous award of punishment under section 82 or section 86 and may further inquire into and record the general character of such person and such other matters as may be prescribed.

 (2) Evidence received under this section may be either oral, or in the shape of entries in, or certified extracts from, court-martial books or other official records, and it shall not be necessary to give notice before trial to the person tried that evidence as to his previous convictions or character will be received.

144. Lunacy of accused.

(1) Whenever, in the course of a trial by a court-martial, it appears to the court that the person charged is by reason of unsoundness of mind incapable of making his defence, or that he committed the act alleged but was by reason of unsoundness of mind incapable of knowing the nature of the act or knowing that it was wrong or contrary to law, the court shall record a finding accordingly.

 (2) The presiding officer of the court shall forthwith report the case to the confirming officer.

(3) The confirming officer to whom the case is reported under sub-section (2) may, if he does not confirm the finding, take steps to have the accused person tried by the same or another court-martial for the offence with which he was charged.

 (4) A confirming officer confirming a finding in any case so reported to him under subsection (2) shall order the accused person to be kept in custody in the prescribed manner and shall report the case for the orders of the Central Government.

(5) On receipt of a report under sub-section (4) the Central Government may order the accused person to be detained in a lunatic asylum or other suitable place of safe custody.

145. Subsequent fitness of lunatic accused for trial.

Where any accused person, having been found by reason of unsoundness of mind to be incapable of in a king his defence, is in custody or under detention under section 144, the officer commanding, a unit or detachment within the area of whose command the accused is in custody or is detained, or any other officer prescribed in this behalf, may-

(a) If such person is in custody under sub-section (4) of section 144, on the report of a medical officer that he is capable of making his defence, or

(b) If such person is detained in a jail under sub-section (5) of section 144, on a certificate of the Inspector-General of Prisons, and if such person is detained in a lunatic asylum under the said sub-section on a certificate of any two or more of the visitors of such asylum that he is capable of making his defence,

take steps to have such person tried by the same or another court-martial for the offence with which he was originally charged, or if the offence is a civil offence, by a criminal court.

146. Transmission to Central Government of orders under section 145.

A copy of every order made by an officer under section 145 for the trial of the accused shall forthwith be sent to the Central Government.

147. Release of lunatic accused.

Where any person is in custody under sub-section (4) of section 144 or under detention under sub section (5), of that section-

(a) If such person is in custody under the said sub-section (4), on the report of a medical officer, or

 (b) If such person is detained under the said sub-section (5), on a certificate from any of the authorities mentioned in clause (b) of section 145 that, in the. Judgment of such officer or authority such person may be released without danger of his doing injury to himself or to any other person,

The Central Government may order that such person be released, or detained in custody, or transferred to a public lunatic asylum if he has not already been sent to such all asylum.

148. Delivery of lunatic accused to relatives.

Where any relative or friend of any person who is in custody under sub-section (4) of section 144 or under detention under subsection (5) of that section desires that he should be delivered to his care and custody, the Central Government may upon application by such relative or friend and on his giving security to the satisfaction of that Government that the person delivered shall be properly taken care of and prevented from doing injury to himself or any other person, and be produced for the inspection of such officer, and at such times and places, as the Central Government may direct, order such person to be delivered to such relative or friend.

149. Order for custody and disposal of property pending trial.

When any property regarding which any offence to have been committed, or which appears to have been used for the commission of any offence, is produced before a court-martial during a trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the trial, and if the property is subject to speedy or natural decay may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

150. Order for disposal of property regarding which offence is committed.

(1) After the conclusion of a trial before any court-martial, the court or the officer confirming the finding or sentence of such court-martial or any authority superior to such officer, may make such order as it or be thinks fit for the disposal by destruction, confiscation, delivery to any person claiming to be entitled to possession thereof, or otherwise of any property or document produced before the court or in its custody, or regarding which any offence appears to have been committed or which has been used for the commission of any offence.

 (2) Where any order has been made under sub-section (1) in respect of property regarding which an offence appears to have been committed, a copy of such order signed and certified by the authority making the same may, whether the trial was held within India or not, be sent to a magistrate within whose jurisdiction such property for the time being is situated, and such magistrate shall thereupon cause the order to be carried into effect as if it were an order passed by him under the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), or any Corresponding law in force in 1[the State of Jammu and Kashmir].

(3) In this section the term “property” includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange whether immediately or otherwise.

————

1. Subs. by Act the Adaptation of Laws (No. 3) Order, 1956, for “a Part B State”

151. Powers of courts-martial when certain offences are committed by persons not subject to this Act.

 Any trial by a court-martial under the provisions of this Act shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code, (45 of 1860) and the court-martial shall be deemed to be a court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 (5 of 1898).

152. Finding and sentence not valid unless confirmed.

No finding or sentence of a general, district or summary general court-martial shall be valid except so far as it may be confined as provided by this Act.

153. Power to confirm finding and sentence of general court-martial.

The findings and sentences of general courts-martial may be confirmed by the Central Government, or by any officer empowered in this behalf by warrant of the Central Government.

154. Power to confirm finding and sentence of district court-martial.

The findings and sentences of district courts-martial may be confirmed by any officer having power to convene a general court-martial or by any officer empowered in this behalf by warrant of such officer.

155. Limitation of powers of confirming authority.

A warrant issued under section 153 or section 154 may contain such restrictions, reservations or conditions as the authority issuing it may think fit.

156. Power to confirm finding and sentence of summary general court-martial.

The findings and sentences of summary general court-martial may be confirmed by the convening officer or if he so directs by an authority superior to him.

157. Powers of confirming authority to mitigate, remit or commute sentences.

(1) Subject to such restrictions, reservations or conditions as may be contained in any warrant issued under section 153, or section 154 and to the provisions of sub-sections (2) and (3), a confirming authority may, when confirming the sentence of a court-martial, mitigate or remit the punishment thereby awarded, or commute that punishment for any punishment or punishments lower in the scale laid down in section 73.

(2) A sentence of transportation shall not be commuted for a sentence of imprisonment or detention for a term exceeding the term of transportation awarded by the court.

(3) A sentence of imprisonment shall not be commuted for a sentence of detention for a term exceeding the term of imprisonment awarded by the court

158. Confirming of findings and sentences on board a ship.

When any person subject to this Act is tried and sentenced by a court-martial while on board a ship, the finding and sentence so far as not confirmed and executed on board the ship, may be confirmed and executed in like manner as if such person had been tried at the port of disembarkation.

159. Revision of finding or sentence.

(1) Any finding or sentence of a court-martial may be once revised by order of the confirming authority and on such revision, the court, if so directed by the confirming authority, may take additional evidence.

(2) The court, on revision, shall consist of the same officers as were present when the original decision was passed, unless any of those officers are unavoidably absent,

(3) In case of such unavoidable absence the cause there of shall be duly certified in the proceedings, and the court shall proceed with revision, provided that, if a general court-martial, it still consists of five officers, or, if a summary general or district court-martial, of three officers.

160. Alteration of finding or sentence in certain cases.

(1) Where a finding of guilty by a court-martial, which has been confirmed, is found for any reason to be invalid or cannot be supported by the evidence, the authority which would have had power under section 177 to commute the punishment awarded by the sentence, if the finding had been valid, may substitute a new finding and pass a sentence for the offence specified or involved in such finding.

Provided that no such substitution shall be made unless such finding could have been validly made by the court-martial on the charge and unless it appears that the court-martial must have been satisfied of the facts establishing the offence.

(2) Where a sentence passed by a court-martial which has been confirmed not being a sentence passed in pursuance of a new finding substituted under sub-section (1), is found for any reason to be invalid, the authority referred to in sub-section (1) may pass a valid sentence.

(3) The punishment awarded by a sentence passed under sub-section (1) or sub-section (2) shall not be higher in the scale of punishments than, or in excess of, the punishment awarded by, the sentence for which a new sentence is substituted under this section.

 (4) Any findings substituted, or any sentence passed, under this section shall for the purposes of this Act and the rules made thereunder have effect as if it were a finding or sentence, as the case may be, of a court-martial.

161. Remedy against order, finding or sentence of court-martial.

(1) Any person subject to this Act who considers himself aggrieved by any order passed by a court-martial may present a petition to the officer or authority empowered to confirm any finding or sentence of such court-martial, and the confirming authority may taken such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceedings to which the order relates.

 (2) Any person subject to this Act who considerers himself aggrieved by a finding or sentence of a court-martial which has been confirmed, may present a petition to the Central Government, 1[the Chief of the Air Staff] or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, 1[the Chief of the Air Staff] or other officer, as the case may be, may pass such order thereon as it or he thinks fit.

 ————

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief’.

162. Annulment of proceedings.

The Central Government, 1[the Chief of the Air Staff] or any prescribed officer may annul the proceedings of any court-martial on the ground that they are illegal or unjust.

 ————

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief’.

163. Form of sentence of death.

In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead, or shall suffer death by being short to death.

164. Commencement of sentence of transportation or imprisonment.

Whenever any person is sentenced by a court-martial under this Act to transportation, imprisonment or detention the term of his sentence shall, whether it has been revised or not, be reckoned to commence on the day on which the original proceedings were signed by the presiding officer.

165. Execution of sentence of transportation.

Whenever any sentence of transportation is passed under this Act or whenever any sentence of death be commuted to transportation, the commanding officer of the person under sentence or such other officer as may be prescribed shall forward a warrant in the prescribed form to the officer in charge of the civil prison in which such person is to be confined and shall arrange for his dispatch to such prison with the warrant.

166. Execution of sentence of imprisonment.

(1) Whenever any sentence of imprisonment is passed under this Act or whenever any sentence of death or transportation is commuted to imprisonment the confirming officer or such other officer as may be prescribed, shall, save as otherwise provided in sub-sections (3) and (4), direct either that the sentence shall be carried out by confinement in a military or air force prison or that it shall be carried out by confinement in a civil prison.

 (2) When a direction has been made under sub-section (1) the commanding officer of the person under sentence or such other officer as may be prescribed shall forward a warrant in the prescribed form to the officer in charge of the prison in which such person is to be confined and shall arrange for his despatch to such prison with the warrant.

 (3) In the case of a sentence of imprisonment for a period not exceeding three months, the officers referred to in sub-section (1) may direct that the sentence shall be carried out by confinement in air force custody instead of in a civil military or air force prison.

(4) On active service, a sentence of imprisonment may be carried out by confinement in such place as the officer commanding the force in the field may from time to time appoint.

167. Temporary custody of offender.

Where a sentence of transportation or imprisonment is direct to be undergone in a civil prison, the offender may be kept in military or air force custody or in any other fit place, till such time as it is possible to send him to a civil prison.

168. Execution of sentence of imprisonment in special cases.

Whenever, in the opinion of an air or other officer commanding a group, any sentence or portion of a sentence of imprisonment cannot for special reasons, conveniently be carried out in a military or air force prison or in air force custody in accordance with the provisions of section 166 such officer may direct that such sentence or portion of sentence shall be carried out by confinement in any civil prison or other fit place.

169. Conveyance of prisoner from place to place.

A person under sentence of transportation or imprisonment may, during his conveyance from place to place, or when on board ship, aircraft, or otherwise, be subjected to such restraint as is necessary for his safe conduct and removal.

170. Execution of sentence of detention.

Whenever any sentence of detention is passed under this Act, or whenever any sentence of death, transportation or imprisonment is commuted to detention, the sentence shall be carried out by detaining the offender in any military or air force detention barracks, detention cells or other military or air force custody; and when the sentence is to be carried out by detention in any military or air force detention barracks, the commanding officer of the person under sentence or such other officer as may be prescribed shall forward a warrant in the prescribed form to the officer in charge of the detention barracks in which the person under sentence is to be detained and shall forward the person under sentence to such detention barracks with the warrant.

171. Communication of certain order to prison officers.

Whenever an order if duty made under this Act setting aside or varying any sentence, order or warrant under which any person is confined in a civil, military or air force prison or detained in a military or air force detention barracks, a warrant in accordance with such order shall be forwarded by the officer making the order, or his staff officer, or such other person as may be prescribed, to the officer in charge of the prison or detention barracks in which such person is confined.

172. Execution of sentence of fine.

When a sentence of fine is imposed by a court-martial under section 71 whether the trial was held within India or not, a copy of such sentence, signed and certified by the confirming officer may be sent to any magistrate in India, and such magistrate shall thereupon cause the fine to the recovered in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), or any corresponding law in force in 1[the State of Jammu and Kashmir], for the levy of fines as if it were a sentence of fine imposed by such magistrate.

 ————

1. Subs. by the Adaptation of Laws (No 3) Order, 1956, for “A Part B State”

173. Establishment and regulation of air force prisons.

The Central Government may set apart any building or part of a building, or any place under its control, as an air force prison or detention barracks for the confinement of persons sentenced to imprisonment or detention under this Act.

 174. Informality or error in the order or warrants.

Whenever a person is sentenced to transportation, imprisonment or detention under this Act, and is undergoing the sentence in any place or manner in which he might be confined under a lawful order or warrant in pursuance of this Act, the confinement of such person shall not be deemed to be illegal only by reason of any informality or error in or as respects the order, warrant or other document, or the authority by which, or in pursuance where of such person was brought into or is confined in any such place, and any such order, warrant or document may be amended accordingly.

175. Power to make rules in respect of prisons and prisoners.

The Central Government may make rules providing-

(a) For the government, management and regulation of air force prisons and detention barracks,

 (b) For the appointment, removal and powers of inspectors, visitors, governor and officers thereof,

 (c) For the labour of prisoners undergoing confinement therein, and for enabling such prisoners or persons to earn by special industry and good conduct, a remission of a portion of their sentence;

 (d) For the safe custody of such prisoners or persons and the maintenance of discipline among them and the punishment, by personal correction, restraint or otherwise, of offences committed by them;

 (e) For the application to air force prisons or detention barracks of any of the provisions of the Prisons Act, 1894 (9 of 1894) relating to the duties of officers of prisons and the punishment of persons not being prisoners;

(f) For the admission in to any prison, at proper times and subject to proper restriction of persons with whom prisoners may desire to communicate, and for the consultation by prisoners under trial with their legal advisers without the presence as far as possible of any third party with in hearing distance.

176. Restriction of rule-making power in respect to corporal punishment.

Rules made under section 175 shall not authorise corporal punishment to be inflicted for any offence, no render the imprisonment more severe than it is under any law for the time being in force relating to civil prisons in India.

177. Pardon and remission.

When any person subject to this Act has been convicted by a court-martial of any offence, the Central Government,1[the Chief of the Air Staff], an air or other officer commanding a group of, or the prescribed officer, may-

(a) Either with or without conditions which the person sentenced accepts, pardon the person or remit the whole or any part of the punishment awarded; or

 (b) Mitigate the punishment awarded; or

(c) Commute such punishment for any less punishment or punishments mentioned, this Act:

Provided that a sentence of transportation shall not be commuted for a sentence of imprisonment for a ten-n exceeding the term of transportation awarded by the court; and a sentence of imprisonment shall not be commuted for a sentence of detention for a term exceeding the term of imprisonment so awarded;

(d) Either with or without conditions which the person sentenced accepts, release the person on parole.

 1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief’.

178. Cancellation of conditional pardon, release on parole or remission.

(1) If any conditions on which a person has been pardoned or released on parole or a punishment has been remitted is, in the opinion of the authority which granted the pardon, release or remission, not fulfilled, such authority may cancel the pardon, release or remission, and thereupon the sentence of the court shall be carried into effect as if such pardon, release or remission had not been granted.

(2) A person whose sentence of transportation imprisonment or detention is carried into effect under the provisions of sub-section (1) shall undergo only the unexpired portion of his sentence.

179. Reduction of warrant officer or non-commissioned officer.

When under the provisions of section 79 a warrant officer or a non-commissioned officer is deemed to be reduced to the ranks, such reduction shall, for the purpose of section 177 be treated as a punishment awarded by a sentence of a court-martial.

180. Suspension of sentence of transportation, imprisonment or detention.

(1) Where a person subject to this Act is sentenced by a court-martial to transportation, imprisonment or detention, the Central Government, 1[the Chief of the Air Staff], or any officer empowered to convene a general or a summary general court-martial may suspend the sentence whether or not the offender has already been committed to prison or to air force custody.

(2) The authority or officer specified in sub-section (1) may in the case of an offender so sentenced direct that, until the orders of such authority or officer have been obtained, the offender shall not be committed to prison or to air force custody.

(3) The powers conferred by sub-sections (1) and (2) may be exercised in the case of any such sentence which has been confirmed, reduced or commuted.

————

1. Subs. by Act 19 of 1955, sec. 2 and Sch., for “the Commander-in-Chief’.

181. Orders pending suspension.

A confirming officer may, when confirming any sentence referred to in section 180, direct that the offender be not committed to prison or to air force custody until the orders of the authority or officer specified in section 180 have been obtained.

182. Release on suspension.

 Where a sentence is suspended under section 180, the offender shall forthwith be released from custody.

183. Computation of period of suspension.

Any period during which the sentence is under suspension shall be reckoned as part of the term of such sentence.

184. Order after suspension.

The authority or officer specified in section 180 may, at any time while a sentence is suspended, order-

(a) That the offender be committed to undergo the unexpired portion of the sentence, or

 (b) That the sentence be remitted.

185. Reconsideration of case after suspension.

(1) Where a sentence has been suspended, the case may at any time, and shall, at intervals of not more than four months, be reconsidered by the authority, or officer specified in section 180, or by any air or other officer not below the rank of squadron leader duly authorised by the authority or officer specified in section 180.

(2) Where on such reconsideration by the officer so authorised it appears to him that the conduct of the offender since his conviction has been such as to justify a remission of the sentence, he shall refer the matter to the authority or officer specified in section 180.

186. Fresh sentence after suspension.

 Where an offender, while a sentence on him is suspended under this Act, is sentenced for any other offences, then-

 (a) If the further sentence is also suspended under this Act, the two sentences shall run concurrently;

 (b) If the further sentence is for a period of three months or more and is not suspended under this Act, the offender shall also be committed to prison or air force custody for the unexpired portion of the previous sentence, but both sentences shall run concurrently; and

(c) If the further sentence is for a period of less than three months and is not suspended under this Act, the offender shall be so committed on that sentence only, and the previous sentence shall, subject to any order which may be passed under section 184 or section 185, continue to be suspended.

187. Scope of power of suspension.

The powers conferred by sections 180 and 184 shall be in addition to and not in derogation of, the power of mitigation, remission and commutation.

188. Effect of suspension and remission on dismissal.

(1) Where in addition to any other sentence the punishment of dismissal has been awarded by a court-martial, and such other sentence is suspended under section 180, then such dismissal shall not take effect until so ordered by the authority or officer specified in section 180.

(2) If such other sentence is remitted under section 184, the punishment of dismissal shall also be remitted.

189. Power to make rules.

 (1) The Central Government may make rules for the purpose of carrying into effect the provisions of this act.

(2) Without prejudice to the generality of the power conferred by sub-section (1), the rules made thereunder may provoke for-

(a) The removal, retirement, release or discharge from the service of persons subject to this Act;

 (b) The amount and incidence of fines to be imposed under section 90;

(c) The specification of the punishment which may be awarded as field punishments under sections 77 and 82;

(d) The assembly and procedure of courts of inquiry, the recording of summaries of evidence and the administration of oaths or affirmations by such courts;

(e) The convening and constituting of courts-martial and the appointment of prosecutor at trials by courts-martial;

(f) The adjournment, dissolution and sitting of courts-martial;

(g) The procedure to be observed in trials by courts-martial and the appearance of legal practitioners thereat;

(h) The confirmation, revision and annulment of, and petitions against, the findings and sentences of courts-martial;

(i) The carrying into effect of sentences of courts-martial;

(j) The forms of orders to be made under the provisions of this Act relating to courts-martial transportation, imprisonment and detention;

(k) The constitution of authorities to decide for what persons, to what amounts and in what manner, provision should be made for dependents under section 100 and the due carrying out of such decisions;

 (l) The relative rank of the officers, junior commissioned officers, warrant officers, petty officers and non-commissioned officers of the regular Army, Navy and Air Force when acting together;

 (m) Any other matter directed by this Act to be prescribed.

190. Powers to make regulations.

The Central Government may make regulations for all or any of the purposes of this Act other than those specified in section 189.

191. Publication of rules and regulations in Gazette.

All rules and regulations made under this Act shall be published in the Official Gazette and, on such publication, shall have effect as if enacted in this Act.

191A. Laying of rules and regulations before Parliament.

Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more Successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.]

 ————

1. Ins. by Act 4 of 1986, sec.2 and Schedule.

192. Repeal.

[Rep. by the Repealing and Amending Act, 1957 (36 of 1957), sec. 2 and Sch. I]

193. Definition of British officer.

(1) In this Chapter “British officer” means a person of non-Indian domicile holding a commission in his Majesty’s Air Forces and serving in the Air Force.

(2) The expression “superior officer” in this Act shall be deemed to include a British officer.

194. Powers of British officer.

A British officer shall have all the powers conferred by this Act on an officer of corresponding rank or holding a corresponding appointment.

Bydeb

The Telecom Regulatory Authority of India Act, 1997

Preamble

[ACT No. 24 OF 1997]

[28th March, 1997]

An Act to provided for the establishment of the 1[Telecom Regulatory Authority of India and the Telecom Disputes Settlement and Appellate Tribunal to regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interests of services providers and consumers of the telecom sector, to promote and ensure orderly growth of the telecom sector] and for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Forty-eighth Year of the Republic of India as follows:-

——————–

1. Substituted by Act 2 of 2000, for “Telecome Regulatory Authority of India to regulate the telecomunication services ” (w.r.e.f. 24-1-2000).

Section 1. Short title extent and commencement

(1) This Act may be called the Telecom Regulatory Authority of India Act, 1997.

(2) It extends to the whole of India.

(3) It shall be deemed to have come into force on the 25th day of January, 1997.

Section 2. Definitions

(1) In this Act, unless the context otherwise requires,-

(a) “Appointed day” means the date with effect from which the Authority is established under sub-section (1) of section 3;

1[(aa) “Appellate Tribunal” means the Telecom Disputes Settlement and Appellate Tribunal established under Section 14;]

(b) “Authority” means the Telecom Regulatory Authority of India established under sub-section (1) of section 3;

(c) “Chairperson” means the Chairperson of the Authority appointed under sub-section (3) of section 3;

(d) “Fund” means the Fund constituted under sub-section (1) of section 22;

(e) “Licensee” means any person licensed under sub-section (1) of section 4 of the Indian Telegraph Act, 1885(13 of 1885) for providing specified public telecommunication services;

1[(ea) “licenser” means the Central Government or the telegraph authority who grants a licence under Section 4 of the Indian Telegraph Act, 1885;]

(f) “Member” means a member of the Authority appointed under sub-section (3) of section 3 and includes the Chairperson and the Vice-Chairperson;

(g) “Notification” means a notification published in the Official Gazette;

(h) “Prescribed” means regulations made by rules made under this Act;

(i) “Regulations” means regulations made by the Authority under this Act;

(j) “Service provider” means the 2[Government as a service provide] and includes a licensee;

(k) “Telecommunication service” means service of any description (including electronic mail, voice mail, data services, audio tex services, video tex services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electromagnetic means but shall not include broadcasting services.

1[Provided that the Central Government may notify other service to be telecommunication service including broadcasting services.]

(2) Words and expressions used and not defined in this Act but defined in the Indian Telegraph Act, 1885(13 of 1885) or the Indian Wireless Telegraphy Act, 1983(17 of 1933), shall have the meanings respectively assigned to them in those Acts.

(3) Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir shall in relation to that State be construed as a reference to the corresponding law, if any, in that State.

——————–

1. Inserted by Act 2 of 2000, sec. 3 (w.r.e.f. 24-1-2000).

2. Substituted by Act 2 of 2000, sec. 3, for “Government” (w.r.e.f. 24-1-2000)

Section 3. Establishment and incorporation of Authority

(1) With effect from such date as the Central Government may, by notification appoint, there shall be established, for the purposes of this Act, an Authority to be called the Telecom Regulatory Authority of India.

(2) The Authority shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued.

1[(3) The Authority shall consist of a Chair-person, and not more than two whole-time members and not more than two part-time members, to be appointed by the Central Government]

(4) The head office of the Authority shall be at New Delhi.

——————–

1. Substituted by Act 2 of 2000, sec. 4, for sub-section (3) (w.r.e.f. 24-1-2000).

Section 4. Qualifications for appointment of Chairperson and other members

1[Qualifications for appointment of Chairperson and other members. The Chairperson and other members of the Authority shall be appointed by the Central Government from amongst persons who have special knowledge of, and professional experience in, telecommunication, industry, finance, accountancy, law, management or consumer affairs:

Provided that a person who is, or has been, in the service of Government shall not be appointed as a member unless such person has held the post of Secretary or Additional Secretary, or the post of Additional Secretary and Secretary to the Government of India or any equivalent post in the Central Government or the State Government for a period of not less than three years.]

——————–

1. Substituted by Act 2 of 2000, sec. 5, for section 4 (w.r.e.f. 24-1-2000).

Section 5. Term of office conditions of service, etc., of Chairperson and other members

(1) Before appointing any person as the Chairperson or member, the Central Government shall satisfy itself that the person does not have any such financial or other interest as is likely to affect prejudicially his functions as such member.

1[(2) The Chairperson and other members shall hold office for a term not exceeding three years. as the Central Government may notify in this behalf, from the date on which they enter upon their offices or until they attain the age of sixty-five years, whichever is earlier.

(3) On the commencement of the Telecom Regulatory Authority of India (Amendment) Act, 2000, a person appointed as Chairperson of the Authority and every other person appointed as member and holding office as such immediately before such commencement shall vacate their respective offices and such Chairperson and such other members shall be entitled to claim compensation not exceeding three months pay and allowances for the premature termination of the term of their offices or of any contract of service.]

(4) The employee of the Government on his 2[selection as the Chairperson or whole-time member] shall have to retire from service before 3[joining as the Chairperson or a whole-time member, as the case may be].

(5) The salary and allowances payable to and the other terms and conditions of service of the Chairperson and 4[whole-time members] shall be such as may be prescribed.

(6) The salary, allowances and other conditions of service of the Chairperson or of a member shall not be varied to his disadvantage after appointment.

5[(6A) The part-time members shall receive such allowances as may be prescribed.]

(7) Notwithstanding anything contained in sub-section (2) or 6[* * *], a member may-

(a) Relinquish his office by giving in writing to the Central Government notice of not less than three months; or

(b) Be removed from his office in accordance with a provisions of section 7.

(8) The Chairperson or any 4[whole-time member] ceasing to hold office as such, shall-

(a) Be ineligible for further employment under the Central Government or any State Government; or

(b) Not accept any commercial employment, for a period of 7[one year] from the date he ceases to hold such office.

5[Provided that nothing contained in this sub-section shall apply to the Chairperson or a member who has ceased to hold office under sub-section (3) and such Chairperson or member shall be eligible for reappointment in the Authority or appointment in the Appellate Tribunal]

(9) A vacancy caused to the office of the Chairperson or any other member shall be filled up within a period of three months from the date on which such vacancy occurs.

Explanation

For the purposes of this section, “commercial employment” means employment in any capacity under, or agency of, a person engaged in trading, commercial, industrial or financial business in any field and includes also a director of a company or partner of a firm and it also includes setting up practice either independently or as partner of a firm or as an adviser or a consultant.

——————–

1. Substituted by Act 2 of 2000, sec. 6, for sub-sections (2) and (3) (w.r.e.f. 24-1-2000).

2. Substituted by Act 2 of 2000, sec. 6, for “selection as member” (w.r.e.f. 24-1-2000).

3. Substituted by Act 2 of 2000, sec. 6, for “joining as member” (w.r.e.f. 24-1-2000).

4. Substituted by Act 2 of 2000, sec. 6, for “other member” (w.r.e.f. 24-1-2000).

5. Ins. by Act 2 of 2000, sec. 6 (w.r.e.f. 24-1-2000).

6. The words “or sub-section (3)” omitted by Act 2 of 2000, sec. 6, (w.r.e.f. 24-1-2000).

7. Substituted by Act 2 of 2000, sec. 6, for “two years” (w.r.e.f. 24-1-2000).

Section 6. Powers of Chairperson and Vice-Chairperson

(1) The Chairperson shall have powers of general superintendence and directions in the conduct of the affairs of the Authority and he shall, in addition to presiding over the meetings of the Authority, exercise and discharge such powers and functions of the Authority and shall discharge such other powers and functions as may be prescribed.

(2) The Central Government may appoint one of the members to be a Vice-Chairperson of the Authority who shall exercise and discharge such powers and functions of the Chairperson as may be prescribed or as may be delegated to him by the Authority.

Section 7. Removal and suspension of member from office in certain circumstances

(1) The Central Government may remove from office any member, who,-

(a) Has been adjudged an insolvent; or

(b) Has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or

(c) Has become physically or mentally incapable of acting as a member, or

(d) Has acquired such financial or other interest as is likely to affect prejudicially his functions as a member; or

(e) Has so abused his position as to render his continuance in office prejudicial to the public interest.

1[(2) No such member shall be removed from his office under clause (d) or clause (e) of sub-section (1) unless he has been given a reasonable opportunity of being heard in the matter.]

——————–

1. Substituted by Act 2 of 2000, sec. 7, for sub-sections (2) and (3) (w.r.e.f. 24-1-2000).

Section 8. Meetings

(1) The Authority shall meet at such times and places, and shall observe such rules of procedure in regard to the transaction of business at its meetings (including quorum at such meetings) as may be provided by regulations.

(2) The Chairperson or, if for any reason, he is unable to attend a meeting of the Authority, Vice-Chairperson and in his absence, any other member chosen by the members present from amongst themselves at the meeting shall preside at the meeting.

(3) All questions which come up before any meeting of the Authority shall be decided by a majority vote of the members present and voting, and in the event of an equality of votes, the Chairperson or in his absence, the person presiding, shall have a second or casting vote.

(4) The Authority may make regulations for the transaction of business at its meetings.

Section 9. Vacancies, etc., not to invalidate proceedings of Authority

No act or proceeding of the Authority shall be invalid merely by reason of-

(a) Any vacancy in, or any defect in the constitution of, the Authority; or

(b) Any defect in the appointment of a person acting as a member of the Authority; or

(c) Any irregularity in the procedure of the Authority not affecting the merits of the case.

Section 10. Officers and other employees of Authority

(1) The Authority may appoint officers and such other employees as it considers necessary for the efficient discharge of its functions under this Act.

(2) The salary and allowances payable to and the other conditions of service of the officers and other employees of the Authority appointed under sub-section (1) shall be such as may be 1[prescribed]:

2[Provided that any regulation, in respect of the salary and allowances payable to and other conditions of service of the officers and other employees of the Authority, made be-fore the commencement of the Telecom Regulatory Authority of India (Amendment) Act, 2000, shall cease to have effect immediately on the notification of rules made under clause (ca) of sub-section (2) of Section 35.]

——————–

1. Substituted by Act 2 of 2000, sec. 8, for “determined by regulations” (w.r.e.f. 24-1-2000).

2. Inserted by Act 2 of 2000, sec. 8 (w.r.e.f. 24-1-2000).

Section 11. Functions of Authority

1[(1) Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the functions of the Authority shall be to—

(a) make recommendations, either suo motu or on a request from the licensor, on the following matters, namely:—

(i) need and timing for introduction of new service provider;

(ii) terms and conditions of licence to a service provider;

(iii) revocation of licence for non-compliance of terms and conditions of licence;

(iv) measures to facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services;

(v) technological improvements in the services provided by the service providers;

(vi) type of equipment to be used by the service providers after inspection of equipment used in the network;

(vii) measures for the development of telecommunication technology and any other matter relatable to telecommunication industry in general;

(viii) efficient management of available spectrum;

(b) discharge the following functions, namely:—

(i) ensure compliance of terms and conditions of licence;

(ii) notwithstanding anything contained in the terms and conditions of the licence granted before the commencement of the Telecom Regulatory Authority of India (Amendment) Act, 2000, fix the terms and conditions of inter-connectivity between the service providers;

(iii) ensure technical compatibility and effective inter-connection between different service providers;

(iv) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication service;

(v) lay-down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of such service provided by the service providers so as to protect interest of the consumers of telecommunication service;

(vi) lay-down and ensure the time period for providing local and long distance circuits of telecommunication between different service providers;

(vii) maintain register of inter-connect agreements and of all such other matters as may be provided in the regulations;

(viii) keep register maintained under clause (vii) open for inspection to any member of public on payment of such fee and compliance of such other requirement as may be provided in the regulations;

(ix) ensure effective compliance of universal service obligations;

(c) levy fees and other charges at such rates and in respect of such services as may be determined by regulations;

(d) perform such other functions including such administrative and financial functions as may be entrusted to it by the Central Government or as may be necessary to carry out the provisions of this Act:

Provided that the recommendations of the Authority specified in clause (a) of this sub-section shall not be binding upon the Central Government:

Provided further that the Central Government shall seek the recommendations of the Authority in respect of matters specified in sub-clauses (i) and (ii) of clause (a) of this sub-section in respect of new licence to be issued to a service provider and the Authority shall forward its recommendations within a period of sixty days from the date on which that Government sought the recommendations:

Provided also that the Authority may request the Central Government to furnish such information or documents as may be necessary for the purpose of making recommendations under sub-clauses (i) and (ii) of clause (a) of this sub-section and that Government shall apply such information within a period of seven days from receipt of such request:

Provided also that the Central Government may issue a licence to a service provider if no recommendations are received from the Authority within the period specified in the second proviso or within such period as may be mutually agreed upon between the Central Government and the Authority:

Provided also that if the Central Government, having considered that recommendation of the Authority, comes to a prima facie conclusion that such recommendation can-not be accepted or needs modification, it shall refer the recommendation back to the Authority for its reconsideration, and the Authority may, within fifteen days from the date of receipt of such reference, forward to the Central Government its recommendation after considering the reference made by that Government. After receipt of further recommendation if any, the Central Government shall take a final decision.]

(2) Notwithstanding anything contained in the Indian Telegraph Act, 1885(13 of 1885), the Authority may, from time to time, by order, notify in the Official Gazette the rates at which the telecommunication services within India and outside India shall be provided under this Act including the rates at which messages shall be transmitted to any country outside India;

Provided that the Authority may notify different rates for different persons or class of persons for similar telecommunication services and where different rates are fixed as aforesaid the Authority shall record the reasons therefor.

(3) While discharging its functions 2[under sub-section (1) or sub-section (2)], the Authority shall not act against the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality.

(4) The Authority shall ensure transparency while exercising its powers and discharging its functions.

——————–

1. Substituted by Act 2 of 2000, sec. 8, for “determined by regulations” (w.r.e.f. 24-1-2000).

2. Substituted by Act 2 of 2000, sec. 9, for “under sub-section (1)” (w.r.e.f. 24-1-2000).

Section 12. Powers of Authority to call for information, conduct investigations, etc

(1) Where the Authority considers it expedient so to do, it may, by order in writing,-

(a) Cell upon any service provider at any time to furnish in writing such information or explanation relating to its affairs as the Authority may require; or

(b) Appoint one or more person to make an inquiry in relation to the affairs of any service provider; and

(c) Direct of his officers or employees to inspect the books of account or other documents of any service provider.

(2) Where any inquiry in relation to the affairs of a service provider has been undertaken under sub-section (1),-

(a) Every officer of the Government Department, if such service provider is a department of the Government;

(b) Every director, manager, secretary or other officer, if such service provider is a company; or

(c) Every partner, manager, secretary or other officer, if such service provider is a firm; or

(d) Every other person or body of persons who has had dealings in the course of business with any of the persons mentioned in clauses (b) and (c),

Shall be bound to produce before the Authority making the inquiry, all such books of account or other documents in his custody or power relating to, or having a bearing on the subject-matter of such inquiry and also to furnish to the Authority with any such statement or information relating thereto, as the case may be, required of him, within such time as may be specified.

(3) Every service provider shall maintain such books of account or other documents as may be prescribed.

(4) The Authority shall have the power to issue such directions to service providers as it may consider necessary to proper functioning by service providers.

Section 13. Power of Authority to issue directions

The Authority may, for the discharge of its functions under sub-section (1) of section 11, issue such directions from time to time to the service providers, as it may consider necessary.

1[Provided that no direction under sub-section (4) of Section 12 or under this section shall be issued except on the matters specified in clause (b) of sub-section (1) of Section 11.]

——————–

1. Inserted by Act 2 of 2000, sec. 10 (w.r.e.f. 24-1-2000).

1[CHAPTER IV

APPELLATE TRIBUNAL

——————–

1. Substituted by Act 2 of 2000, sec. 11, for Chapter IV (w.r.e.f. 24-1-2000).

Section 14. Establishment of Appellate Tribunal

The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to—

(a) adjudicate any dispute—

(i) between a licenser and a licensee;

(ii) between two or more service providers;

(iii) between a service provider and a group of consumers:

Provided that nothing in this clause shall apply in respect of matters relating to—

(A) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969;

(B) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under Section 9 of the Consumer Protection Act, 1986 (68 of 1986);

(C) dispute between telegraph authority and any other person referred to in sub-section (1) of Section 7B of the Indian Telegraph Act, 1885 (13 of 1885);

(b) hear and dispose of appeal against any direction, decision or order of the Authority under this Act.

Section 14A. Application for settlement of disputes and appeals to Appellate Tribunal

(1) The Central Government or a State Government or a local authority or any person may make an application to the Appellate Tribunal for adjudication of any dispute referred to in clause (a) of Section 14.

(2) The Central Government or a State Government or a local authority or any person aggrieved by any direction, decision or order made by the Authority may prefer an appeal to the Appellate Tribunal.

(3) Every appeal under sub-section (2) shall be preferred within a period of thirty days from the date on which a copy of the direction or order or decision made by the Authority is received by the Central Government or the State Government or the local authority or the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be pre-scribed:

Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.

(4) On receipt of an application under sub-section (1) or an appeal under sub-section (2), the Appellate Tribunal may, after giving the parties to the dispute or the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.

(5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the dispute or the appeal and to the Authority, as the case may be.

(6) The application made under sub-section (1) or the appeal preferred under sub-section (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application or appeal finally within ninety days from the date of receipt of application or appeal, as the case may be:

Provided that where any such application or appeal could not be disposed of within the said period of ninety days, the Appellate Tribunal shall record its reasons in writing for not disposing of the application or appeal within that period.

(7) The Appellate Tribunal may, for the purpose of examining the legality or propriety or correctness of any dispute made in any application under sub-section (1) or of any direction or order or decision of the Authority referred to in the appeal preferred under sub-section (2), on its own motion or otherwise, call for the records relevant to disposing of such application or appeal and make such orders as it thinks fit.

Section 14B. Composition of Appellate Tribunal

(1) The Appellate Tribunal shall consist of a Chairperson and not more than two Members to be appointed, by notification, by the Central Government.

(2) The selection of Chairperson and Members of the Appellate Tribunal shall be made by the Central Government in consultation with the Chief Justice of India.

(3) Subject to the provisions of this Act,—

(a) the jurisdiction of the Appellate Tribunal may be exercised by the Benches thereof;

(b) a Bench may be constituted by the Chairperson of the Appellate Tribunal with one or two Members of such Tribunal as the Chairperson may deem fit;

(c) the Benches of the Appellate Tribunal shall ordinarily sit at New Delhi and at such other places as the Central Government may, in consultation with the Chairperson of the Appellate Tribunal, notify;

(d) the Central Government shall notify the areas in relation to which each Bench of the Appellate Tribunal may exercise its jurisdiction.

(4) Notwithstanding anything contained in sub-section (2), the Chairperson of the Appellate Tribunal may transfer a Member of such Tribunal from one Bench to another Bench.

(5) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member of the Appellate Tribunal that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson to such Bench as the Chairperson may deem fit.

Bydeb

Civil Procedure Code (CPC) 1908

1. Short title, commencement and extent

(1) This Act may be cited as the Code of Civil Procedure, 1908.

(2) It shall come into force on the first day of January, 1909.

1[(3) It extends to the whole of India except.-

(a) the State of Jammu and Kashmir;

(b) the State of Nagaland and the tribal areas.

Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incedental or consequential modifications as may be specified in the notification.

Explanation.- In this clause, “tribal areas” means the territories which immediately before the 21st day of January, 1972, were included in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution.]

(4) In relation to the Amindivi Islands, and the East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union territory of Lakshadweep, the application of this Code shall be without prejudice to the application of any rule or regulation for the time being in force in such Islands, Agencies or such Union territory, as the case may be, relating to the application of this Code.

1. Subs. by Act 104 of 1976, sec. 2, for sub-section (3) (w.e.f. 1-2-1977).

2. Definitions.

In this Act, unless there is anything repugnant in the subject or context,-

(1) “Code” includes rules;

(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 1 [* * *] section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation – A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final;

(3) “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made;

(4) “district” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of a High Court;

3[(5) “foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;]

(6) “foreign judgment” means the judgment of a foreign Court;

(7) “Government Pleader” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader;

4[(7A) “High Court” in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta;

(7B) “India”, except in sections 1, 29, 43, 44, 5[44A], 78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir];

(8) “Judge” means the presiding officer of a Civil Court;

(9) “judgment” means the statement given by the judge on the grounds of a decree or order;

(10) “judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;

(11) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;

(12) “means profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made but the person in wrongful possession;

(13) “movable property” includes growing crops;

(14) “order” means the formal expression of any decision of a Civil Court which is not a decree;

(15) “pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court;

(16) “prescribed” means prescribed by rules :

(17) “public officer” means a person falling under any of the following descriptions, namely:-

(a) every Judge;

(b) every member of 2[an All-India Service];

(c) every commissioned or gazetted officer in the military, 6[naval or air forces] of 7[the Union] 8[***] while serving under the Government.

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the court, and every person especially authorized by a Court of Justice to perform any of such duties:

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty;

(18) “rules” means rules and forms contained in the First Schedule or made under section 122 or section 125;

(19) “share in a corporation” shall be deemed to include stock, debenture stock, debentures or bonds; and

(20) “signed”, save in the case of a judgment or decree, includes stamped.

9[***]

1. The words and figures “Section 47 or” omitted by Act No. 104 of 1976 (w.e.f. 1-2-1977)..
2.Subs, by Act No. 104 of 1976 for “Indian Civil Service” (w.e.f. 1-2-1977).
3. Subs. by Act 2 of 1951, sec. 4, for clause (5) (w.e.f. 1-4-1951).
4. Ins. by Act 2 of 1951, sec. 4 (w.e.f. 1-4-1951).
5. Ins. by Act 42 of 1953, sec. 4 and Sch. III (w.e.f. 23-12-1953).
6. Subs. by Act 35 of 1934, sec. 2 sch., for “or naval”.
7. Subs. by the A.O. 1950, for “His Majesty”.
8. The words “including His Majesty’s Indian Marine Service”, omitted by Act 35 of 1934, sec. 2.
9. Clause (21) ins. by the A.O. 1950 and omitted by Act 2 of 1951, sec. 4 (w.e.f. 1-4-1951).

3. Subordination of Courts.

For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.

4. Savings.

(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time in force.

(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1) nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.

5. Application of the Code to Revenue Courts

(1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government 1[***] may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government 2[***] may prescribe.

(2) “Revenue Court” in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

1. The words “with the previous sanction of the G.G. in C”, omitted by Act 38 of 1920, sec. 2 and Sch. I.
2. The words “with sanction aforesaid” omitted by Act 38 of 1920, sec. 2 and Sch. I.

6. Pecuniary jurisdiction.

Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

7. Provincial Small Cause Courts.

The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), 1[or under the Berar Small Cause Courts Laws, 1905], or to Courts exercising the jurisdiction of a Court of Small Causes 2[under the said Act or Law], 3[or to Courts in] 4[any part of India to which the said Act does not extend exercising a corresponding jurisdiction] that is to say,-

(a) so much of the body of the Code as relates to-

(i) suits excepted from the cognizance of a Court of Small Causes;

(ii) the execution of decrees in such suits;

(iii) the execution of decrees against immovable property ; and

(b) the following sections, that is to say,-

section 9, sections 91 and 92, sections 94 and 95 5[so far as they authorize or relate to-

(i) orders for the attachment of immovable property;

(ii) injunctions,

(iii) the appointment of a receiver of immovable property, or

(iv) the interlocutory orders referred to in clause (e) of section 94],

and sections 96 to 112 and 115.

1. Ins. by Act 4 of 1941, sec. 2 and Sch. III.
2. Subs. by Act 4 of 1941, sec. 2 and Sch. III for “under that Act”.
3. Ins. by Act 2 of 1951, sec. 5 (w.e.f. 1-4-1951)
4. Subs. by the Adaptation of Laws (no. 2) Order, 1956, for “Part B States”.
5. Subs. by Act 1 of 1926, sec. 3, for “so far as they relate to injunctions and interlocutory orders”.

8. Presidency Small Cause Courts.

Save as provided in sections 24, 38 to 41, 75, clauses (a), (b) and (c), 76 1[77,157 and 158], and by the Presidency Small Cause Courts Act, 1882, (15 of 1882) the provisions in the body of this Code shall not extend to any suit or proceedings in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay :
2[Provided that –

(1) the High Courts of Judicature at Fort William Madras and Bombay, as the case may be, may from time to time, by notifications in the Official Gazette, direct that any such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882, (15 of 1882) and with such modifications and adaptation as may be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court:
(2) all rules heretofore made by any of the said High Courts under section 9 of the Presidency Small Cause Courts Act, 1882 (15 of 1882) shall be deemed to have been validly made.]

STATE AMENDMENTS

Gujarat– In section 8, in the opening para, After the words “Calcutta, Madras and Bombay” insert the words “and in the City of Ahmedabad”.
[Vide Gujarat Act No. 32 of 1961, sec. 21 and Sch. (1-11-1961)].

1. Subs, by Act No. 104 of 1976 for “77 and 155 to 158” (w.e.f. 1-2-1977).
2. Added by Act 1 of 1914, sec. 2

9. Courts to try all civil suits unless barred.

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

1[Explanation I].- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

2[Explanation ll].- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.].

STATE AMENDMENTS

Maharashtra– After section 9 insert the following section 9A.

“9A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken such issue to be decided by the court as a preliminary issue:-

(1) Notwithstanding anything contained in this code or any other law for the time being in force, if at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, on objection to jurisdiction of the court to entertain such suit is taken by any of the parties to the suit the court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting for setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.

(2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application the court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction”.

[Vide Maharashtra Act No. 65 of 1977, sec. 3 (w.e.f. 19-12-1977)].

COMMENTS

(i) The appropriate form for resolution of an industrial dispute is the forum constituted under Industrial Disputes Act, 1947. Jurisdiction of Civil Court is impliedly barred in such cases. C.T. Nikam v. Municipal Corporation of Ahmedabad, AIR 2002 SC 997.

(ii) Telephone bill—Jurisdiction of Civil Court—The Civil Court has jurisdiction to enforce the right of a subscriber under section 7B of the Telegraph Act; Union of India v. Sasi S., AIR 1999 Ker 336.

(iii) The application for grant of interim relief would not be disposed of till decision on question of jurisdiction although ad-interim relief can be granted in view of provisions under section 9A(2); ICICI Ltd. v. Sri Durga Bansal Fertilizers Ltd., AIR 1999 Bom 402.

(iv) Under section 9 of the Code of Civil Procedure, the jurisdiction of Civil Court with regard to a particular matter can be said to be excluded if there is an express provision or by implication it can be inferred that the jurisdiction is taken away; Union of India v. Sasi S., AIR 1999 Ker 336.

1. Explanation renumbered as Explanation I thereof by Act No. 104 of 1976, Sec. 5 (w.e.f. 1-2-1977).
2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

10. Stay of suit.

No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 1[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by 2[the Central Government] 3[***] and having like jurisdiction, or before 4[the Supreme Court].

Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in 1[India] from trying a suit founded on the same cause of action.

COMMENTS

(i) The language of section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute; National Institute of Mental Health and Neuro-Sciences v. C. Parmeshwara, AIR 2005 SC 242.

(ii) Two suits—Between same parties—Involving same subject‑matter and same questions—Held, subsequent suit should be stayed; Radhika Konel Parekh v. Konel Parekh, AIR 1993 Mad 90: (1993) LW 159: (1993) 1 Mad LJ 163.

1. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)
2. Subs. by A.O. 1937, for “the G.G. in C.”
3. The words “or the Crown Representative” omitted by the A.O. 1948.
4. Subs. by the A.O. 1950, for “His Majesty in Council”.

11. Res judicata.

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I- The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI- Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
[Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]

COMMENTS

(i) The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principles of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking procedural principle; Management of Sonepat Co-op. Sugar Mills Ltd. v. Ajit Singh, AIR 2005 SC 1050.

(ii) There is a distinction between issue estoppel and res judicata. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has attained finality whereas the doctrine of issue estoppel is invoked against the party. If such issue is decided against him, he would be estopped from raising the same in the latter proceedings. The doctrine of res judicata creats a different kind of estoppel viz. estoppel by Accord; Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626.

(iii) First writ petition filed on the ground of apprehended bias and subsequent second petition was filed on allegations of actual bias, is not barred by res judicata; G.N. Nayak v. Goa University, AIR 2002 SC 790.

(iv) Section 11 of the Code of Civil Procedure has no doubt some technical aspects for instance the rule of constructive res judicata may be said to be technical but the basis of which the said rule rests is founded on the consideration of public policy; Sumer Mal v. State of Rajasthan, AIR 2000 Raj 1.

(v) The technical principle of res judicata would not be operative more so, if substantial change in circumstances is averred and found prima facie justified; Smt. Rehana Parveen v. Naimuddin, AIR 2000 MP 1.

(vi) Assuming, the cause of action in both the suits was based upon title in the suit land and was akin in all the cases, yet, as referred to above, in as much the earlier two suits were dismissed as withdrawn with permission to file fresh on the same cause of action, third suit will not be barred by any principle of law; Harbhagwan v. Smt. Punni Devi, AIR 1999 P&H 223.

(vii) Where the Sangh has been duly represented in the previous court proceedings and were litigating bona fidely which resulted in failure cannot be allowed to lay any objection in execution or to plead nullity of decree hence doctrine of res judicata applies. The decree of ejectment will bind every member of Sangh; Singhai Lal Chand Jain v. Rashtriya Swayam Sewak Sangh, Panna, JT 1996(3) SC 64.

1. Ins. by Act No. 104 of 1976, sec. 6 (w.e.f. 1-2-1977).

12. Bar to further suit.

Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

13. When foreign judgment not conclusive.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of

1[India] in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in 1[India].

1. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)

14. Presumption as to foreign judgments.

The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

15. Court in which suits to be instituted.

Every suit shall be instituted in the Court of the lowest grade competent to try it.

16. Suits to be instituted where subject-matter situate.

Subject to the pecuniary or other limitations prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate :

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Explanation.– In this section “property” means property situate in 1[India].

COMMENTS

Where the property mortgaged as collateral security for loan advanced to defandant by a bank situated at place ‘J’ then the suit for foreclosure by the bank can only be instituted before Civil Court at place ‘J’; Central Bank of India v. Eleena Fasteners (P) Ltd., AIR 1999 HP 104.

1. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951).

17. Suits for immovable property situate within jurisdiction of different Courts.

Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Court, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate :

Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.

18. Place of institution of suit where local limits of jurisdiction of Courts are uncertain.

(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction :

Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under sub-section (1), and objection is taken before an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been a consequent failure of justice.

19. Suits for compensation for wrongs to person or movables.

Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.

(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in Delhi.

20. Other suits to be instituted where defendants reside or cause of action arises.

Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

1[* * *]

2[Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in 3[India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Illustrations

(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business.

(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at Benaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant object, the suit cannot proceed without the leave of the Court.

COMMENTS

(i) Facts pleaded which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. For that fact pleaded must have relevance to the lis/dispute; Union of India v. Adani Exports Ltd., AIR 2002 SC 126.

(ii) Where the agreement stated that jurisdiction regarding all disputes is at Delhi where the agreement has been signed and executed while the agreement by parties was not signed at Delhi but at some other place, then the agreement cannot be said to be conferring exclusive jurisdiction to Civil Court at Delhi. Party can file a suit under section 20(c) at place where cause of action wholly or partly arose; Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd., AIR 1999 MP 271.

(iii) Where the agreement was an agreement for sale of movable property then sections 16 and 19 would not govern the cause of action in such case but section 20 of the Code would be attracted for determining jurisdiction of Court; Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd., AIR 1999 MP 271.

1. Explanation I omitted by Act No. 104 of 1976, sec. 7 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 7, for “Explanation II” (w.e.f. 1-2-1977).
3. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)

21. Objections to jurisdiction.

1[(1)] No objection as to the place of suing shall be allowed by any appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues or settled at or before such settlement, and unless there has been a consequent failure of justice.

2[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]

COMMENTS

There is no intermediary stage for raising an objection to jurisdiction except filing of written statement and taking that plea unless the matter is covered by section 9A of the Code; B.S.I. Ltd. v. M.V. “CRISTIAN-C”, AIR 1999 Bom 320.

1. Section 21 renumbered as sub-section (1) thereof by Act No. 104 of 1976, sec. 8 (w.e.f 1-2-1977).
2. Ins. by Act No. 104 of 1976, sec. 8 (w.e.f. 1-2-1977).

21A. Bar on suit to set aside decree on objection as to place of suing.

1[21A. Bar on suit to set aside decree on objection as to place of suing.

No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing.

Explanation.-The expression “former suit” means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned ].

1. Ins. by Act No. 104 of 1976, sec. 9 (w.e.f. 1-2-1977).

22. Power to transfer suits which may be instituted in more than one Court.

Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.

COMMENTS

(i) Transfer application with allegations against the P.O. Report from P.O. may be called only with regard to the allegations contained in the transfer application; Pushpa Devi Saraf v. Jai Narain Parasrampuria, AIR 1992 SC 1133.

(ii) Both husband and wife initiating separate proceeding at different places. Both the proceedings triable by the same court. Husband’s case to be transferred to the place where wife’s case is pending; Ms. Shakuntala Modi v. Om Prakash Bharoka, AIR 1991 SC 1104.

23. To what Court application lies.

(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such Courts are subordinate to different High Courts, the application shall be made the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

24. General power of transfer and withdrawal.

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which 1[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

2[(3) For the purposes of this section,-

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) “proceeding” includes a proceeding for the execution of a decree or order.]

(4) the Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be

deemed to be a Court of Small Causes.

3[(5) A suit or proceeding may be transferred under this section from a

Court which has no jurisdiction to try it.]

1. Subs, by Act No. 104 of 1976, sec. 10 for “thereafter tries such suit” (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 10 for sub-section (3) (w.e.f. 1-2-1977).
3. Ins. by Act No. 104 of 1976, sec. 10 (w.e.f. 1-2-1977).

25. Power of Supreme Court to transfer suits, etc.

1[25. Power of Supreme Court to transfer suits, etc.

(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.]

COMMENTS

(i) In transfer of suits, appeals or other proceedings paramount consideration is that justice according to law is done; Dr. Subramaniam Swamy v. Ramakrishna Hegde, AIR 1990 SC 113.

(ii) No case can be transferred to another court unless first Court is biased or some reasonable grounds exist; Gujarat Electricity Board v. Atmaram Sungomal Poshani, (1989) SCJ 180.

1. Subs. by Act No. 104 of 1976, sec. 11 for s. 25 (w.e.f. 1-2-1977).

26. Institution of suits.

1[(1)] Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

2[(2) In every plaint, facts shall be proved by affidavit.]

1. Section 26 renumberd as sub-section 26(1) thereof by Act No. 46 of 1999, section 2 (w.e.f. 1-7-2002).
2. Ins. by Act No. 46 of 1999, section 2 (w.e.f. 1-7-2002).

27. Summons to defendants.

Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed 1[on such day not beyond thirty days from date of the institution of the suit].

1. Added by Act No. 46 of 1999, section 3 (w.e.f. 1-7-2002).

28. Service of summons where defendant resides in another State.

(1) A summons may be sent for service in another State to such Court and in such manner as may be prescribed by rules in force in that State.

(2) The Court to which such summons is sent shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.

1[(3) Where the language of the summons sent for service in another State is different from the language of the record referred to in sub-section (2), a translation of the record,-

(a) in Hindi, where the language of the Court issuing the summons is Hindi, or

(b) in Hindi or English where the language of such record is other than Hindi or English,

shall also be sent together with the record sent under that sub-section].

1. Ins. by Act No. 104 of 1976, sec. 12 (w.e.f. 1-5-1977).

29. Service of foreign summonses.

1[Service of foreign summonses.

Summons and other processes issued by-

(a) any Civil or Revenue Court established in any part of India to which the provisions of this Code do not extent, or

(b) any Civil or Revenue Court established or continued by the authority of the Central Government outside India, or

(c) any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply *†,,

may be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts.]

1. Subs. by Act 2 of 1951, sec. 6, for section 29 (w.e.f. 1-4-1951).

* The Central Government has declared that the provisions of this section shall apply to all Civil Courts in Mongolia, vide G.S.R. 622(E), dated 1st October, 2005.

† The Central Government has declared that the provisions of this Act shall apply to all Civil Courts in the Kingdom of Bahrain, vide G.S.R. 644(E), dated 22nd October, 2005.

30. Power to order discovery and the like.

Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,-

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit.

31. Summons to witness.

The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects.

32. Penalty for default

The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may-

(a) issue a warrant for his arrest;

(b) attach and sell his property;

(c) impose a fine upon him 1[not exceeding five thousand rupees];

(d) order him to furnish security for his appearance and in default commit him to the civil prison.

1. Substituted by Act No. 46 of 1999, section 4 (w.e.f. 1 -7-2002) for “not exceeding five hundred rupees”.

33. Judgment and decree.

The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow

34. Interest

(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, 2[with further interest at such rate not exceeding six per cent, per annum as the Court deems reasonable on such principal sum from] the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:

1[Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.

Explanation I.-In this sub-section, “nationalised bank” means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970 (5 of 1970).

Explanation II.-For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.]

(2) Where such a decree is silent with respect to the payment of further interest 3[on such principal sum] from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.

COMMENTS

(i) General provision of section 34 would authorise the Redressal Fora and Commissions to also grant interest appropriately under the circumstances of each case; Sovintorg (India) Ltd. v. State Bank of India, AIR 1999 SC 2963.

(ii) The claimants have been allowed interest on the decretal amount from the date of the decree though the amount of compensation was quantified only from the date of the passing of the decree. In such circumstances the direction of the Division Bench in the matter of award of interest is also not liable to be interfered; Municipal Corporation of Delhi v. Sushila Devi, AIR 1999 SC 1929.

1. Added by Act No. 104 of 1976, sec. 13 (w.e.f. 1-7-1977).
2. Subs. by Act 66 of 1956, sec. 2, for certain words (w.e.f. 1-1-1957)
3. Subs. by Act 66 of 1956, sec. 2, for “on such aggregate sum as aforesaid” (w.e.f. 1-1-1957)

35. Costs.

(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.

1[***]

COMMENTS

(i) Employer committed default in not remitting premium from salary of an employee to LIC, Employer was directed to pay cost of proceedings to heirs of employee; Delhi Electric Supply Undertaking v. Basanti Devi, AIR 2000 SC 43.

(ii) It is necessary to discourage people from bringing petitions which are motivated by mere personal interests in the name of public interest, for which they have no locus standi. To prevent and penalise such abuse of the process of the Court in the garb of public interest, the Court invoked this section and imposed a cost of Rs. 10,000 on the petitioners; Prayag Vyapar Mandal v. State of Uttar Pradesh, AIR 1997 All 1.

1. Sub-section (3) omitted by Act 66 of 1956, sec. 3 (w.e.f. 1-1-1957)

35A. Compensatory costs in respect of false or vexatious claims or defenses.

1[Compensatory costs in respect of false or vexatious claims or defenses.

(1) If any suit or other proceedings 2[including an execution proceedings but 3[excluding an appeal or a revision]] any party objects to the claim of defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, 4[if it so thinks fit] may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment the object or by the party by whom such claim or defence has been put forward, of cost by way of compensation.

(2) No Court shall make any such order for the payment of an amount exceeding 5[three thousand rupees] or exceeding the limits of it pecuniary jurisdiction, whichever amount is less:

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of 1887) 6[or under a corresponding law in force in 7[any part of India to which the said Act does not extend]] and not being a Court constituted 8[under such Act or law], are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:

Provided, further, that the High Court may limit the amount or class of Courts is empowered to award as costs under this Section.

(3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.

(4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.]

STATE AMENDMENTS

Uttar Pradesh-(i) For sub-section (1) of section 35 A substitute the following.

“(1) If any suit or other proceedings including proceedings in execution, but not being an appeal or revision, the court finds that the claim or defence or any part thereof is false or vexatious to the knowledge of the party by whom it has been put forward and if such claim or defence or such part is disallowed, abandoned or withdrawn in whole or in part, the court may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the successful party or costs by way of compensation irrespective of the decisions on other issues in the case”.

[Vide U.P. Act No. 24 of 1954, sec. 2 Sch., Item 5, Entry 1 (w.e.f. 30-11-1954)].

(ii) After sub-section (1) insert the following sub-section, namely:-.

“(1-A) The provisions of sub-section (1) shall mutatis mutandis apply to an appeal where the appellate Court confirms the decision of the trial court and the trial court has not awarded or insufficient, compensatory cost under that sub-section.

[Vide U.P. Act No. 57 of 1976, sec. 2 (w.e.f. 1-1-1977)].

1. Section 35A was ins. by Act 9 of 1922, sec. 2, which, under section 1(2) thereof may be brought into force in any State by the State Government on any specified date. It has been so brought into force in Bombay, Bengal, U.P., Punjab, Bihar, C.P., Assam, Orissa and Tamil Nadu.
2. Subs. by Act 66 of 1956, sec. 4, for “not being an appeal” (w.e.f. 1-1-1957).
3. Subs, by Act No. 104 of 1976, sec. 14, for “excluding an appeal” (w.e.f. 1-2-1977).
4. Subs. by Act 66 of 1956, sec. 4 for certain words (w.e.f. 1-1-1957).
5. Subs. by Act No. 104 of 1976, sec. 14 for “one thousand rupees” (w.e.f. 1-2-1977).
6. Ins. by Act 2 of 1951, sec. 7 (w.e.f. 1-4-1951).
7. Subs. by the Adoptation of Laws (No. 2) Order, 1956, for “a Part B State”.
8. Ins. by Act 2 of 1951, sec. 7, for “under that Act” (w.e.f. 1-4-1951).

35B. Costs for causing delay.

1[35B. Costs for causing delay.

(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit-

(a) fails to take the step which he was required by or under this Code to take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground,

the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of-

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs.

(b) the defence by the defendant, where the defendant was ordered to pay such costs.

Explanation.-Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the Court to pay such costs.

(2) The costs, ordered to be paid under sub-section (1) shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.]

1. Ins. by Act No. 104 of 1976, sec. 15 (w.e.f. 1-2-1977).

36. Application to orders

1[36. Application to orders

The provisions of this Code relating to the execution of decree (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment an order).]

1. Subs, by Act No. 104 of 1976, sec. 16 for s. 36 (w.e.f. 1-2-1977).

37. Definition of Court which passed a decree.

The expression “Court which passed a decree”, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,-

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

1[Explanation.-The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.]

1. Sub-section (3) omitted by Act 66 of 1956, sec. 3 (w.e.f. 1-1-1957)

38. Court by which decree may be executed.

A decree may be executed either by the court which passed it, or by the Court to which it is sent for execution.

COMMENTS

(i) Retransfer of execution proceedings at the instance of the judgment debtors do not preclude the decree holders from initiating fresh execution proceedings against other judgement debtors at original court; Om Prakash v. M/s. Hargovind Raj Kumar, AIR 1993 Raj 68.

(ii) Injunction decree is not enforceable. However, it can be enforced by seeking police aid on necessary directions from the Court; Matha Gavarayya v. District Collector, E.G. Distt., AIR 1993 AP 103.

39. Transfer of decree.

(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court 1[of competent jurisdiction],-

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

1[(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.]

2[(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.]

STATE AMENDMENTS

Uttar Pradesh-Sub-section (3) of section 39 shall be substituted.

“(3) For the purpose of this section, a court shall be deemed to be a court of competent jurisdiction if the amount or value of the subject matter of the suit wherein the decree was passed does not exceed the pecuniary limits if any of its ordinary jurisdiction at the time of making the application for the transfer of decree to it, notwithstanding that it had otherwise no jurisdiction to try the suit”. [Vide U.P. Act No. 31 of 1978, sec. 2 (w.e.f. 1-8-1978)].

1. Ins. by Act No. 104 of 1976, S. 18 (w.e.f. 1-2-1977).
2. Ins. by CPC Act No. of 2002 section 2 (w.e.f. 1 -7-2002).

40. Transfer of decree to Court in another State.

Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State.

41. Result of execution proceedings to be certified.

The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.

42. Powers of Court in executing transferred decree.

1[(1)] The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

2[(2) Without prejudice to the generality of the provisions of sub-section (1) the powers of the Court under that sub-section shall include the following powers of the Court passed the decree, namely:-

(a) power to send the decree for execution to another Court under section 39;

(b) power to execute the decree against the legal representative of the deceased judgment-debtor under section 50;

(c) power to order attachment of a decree.

(3) A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.

(4) Nothing in this section shall be deemed to confer on the Courts to which a decree is sent for execution any of the following powers, namely-

(a) power to order execution at the instance of the transferee of the decree;

(b) in the case of a decree passed against a firm, power to grant leave to execute such decree against any person other than such a person as is referred to in clause (b), or clause (c), of sub-rule (1) of rule 50 of Order XXI.]

STATE AMENDMENT

Uttar Pradesh-Section 42 shall be substituted by following.

“42. Power of Court in executing transferred decree:

(1) The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the decree shall be punishable by such court in the same manner as if it had passed the decree, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

(2) Without prejudice to the generality of the provisions of sub-section (1) the powers of the court under that sub-section shall include the following powers of the court which passed the decree, namely-

(a) power to send the decree for execution to another court under section 39.

(b) power to execute the decree against the legal representative of the deceased judgment debtor under section 50.

(c) power to order attachment of a decree.

(d) power to decide any question relating to the bar of limitation to the

executability of the decree.

(e) power to record payment or adjustment under Rule 2 of order XXI.

(f) power to order stay of execution under Rule 29 Order XXI,

(g) in the case of a decree passed against a firm power to grant leave to execute such decree against any person other than a person as is referred to in clause (b) or clause (c) of sub-rule (1) of Rule 50 of Order XXI.

(3) A court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the court which passed the decree.

(4) Nothing in this section shall be deemed to confer on the court to which a decree is sent for execution, the power to order execution at the instance of the transfer of a decree.”

[Vide U.P. Act No. 14 of 1970, sec. 2 (w.e.f. 8-4-1970)].

1. Section 42 renumbered as sub-section (1) thereof by Act No. 104 of 1976, sec. 19 (w.e.f. 1-2-1977)
2. Ins. by Act No. 104 of 1976, sec. 19 (w.e.f. 1-2-1977).

43. Execution of decrees passed by Civil Courts in places to which this Code does not extend.

1[Execution of decrees passed by Civil Courts in places to which this Code does not extend.

Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend, or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends].

1. Subs. by Act 2 of 1951, sec. 8, for section 43 (w.e.f. 1-4-1951)

44. Execution of decrees passed by Revenue Court in places to which this Code does not extend.

1[Execution of decrees passed by Revenue Court in places to which this Code does not extend.

The State Government may, by notification in the Official Gazette, declare that the decrees of any Revenue Court in any part of India to which the provisions of this Code do not extend or any class of such decrees, may be executed in the State as if they had been passed by Courts in that State].

1. Subs. by Act 2 of 1951, sec. 9, for section 44 (w.e.f. 1-4-1951)

44A. Execution of decrees passed by Courts in reciprocating territory.

1[44A. Execution of decrees passed by Courts in reciprocating territory.

(1) Where a certified copy of decree of any of the superior Courts of 2[***] any reciprocating territory has been filed in a District Court, the decree may be executed in 3[India] as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

4[Explanation 1- “Reciprocating territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and “superior Courts”, with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 2.- “Decree” with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect to a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.]]

1. Ins. by Act 8 of 1937, sec. 2
2. The words “United Kingdom or: omitted by Act 71 of 1952, sec. 2
3. Subs. by Act 2 of 1951, sec. 3, for “the States” (w.e.f. 1-4-1951)
4. Subs. by Act 71 of 1952, sec. 2, for Explanation 1 to 3.

45. Execution of decrees outside India.

1[45. Execution of decrees outside India.

So much of the foregoing sections of this Part as empowers a Court to send a decree for execution to another Court shall be construed as empowering a Court in any State to send a decree for execution to any Court established 2[***] by the authority of the Central Government3[outside India] to which the State Government has by notification in the Official Gazette declared this section to apply].

STATE AMENDMENTS

Pondicherry-After section 45 insert the following:-

“45-A. Execution of decrees etc. passed or made before the Commencement of the Code in Pondicherry- Any Judgment, decree or order passed or made before the Commencement of this Code by any Civil Court in the Union Territory of Pondicherry shall for the purpose of execution be deemed to have been passed or made under this Code.

Provided that nothing contained in this section shall be construed as extending the period of limitation to which any proceeding in respect of such judgment decree or order may be subject.”

[Vide Act No. 26 of 1968, sec. 3(i) and Sch., Pt II (w.e.f. 5-9-1968)].

1. Subs. by the A.O. 1937, for section 45.
2. The words “or continued” omitted by the A.O. 1948.
3. Subs. by the A.O. 1950, for “in any Indian State.”

46. Precepts.

(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property. Questions to be determined by Court executing decree

47. Questions to be determined by the Court executing decree

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

1[* * * *]

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.

2[Explanation I.-For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.

Explanation II.-(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]

COMMENTS

(i) Executing court has to first decide whether preliminary decree in question is severable from final degree and can be executed independently. If not, then only after passing of the final decree it can be executed; Md. Serajuddin v. Md. Abdul Khalique, AIR 2005 Gauhati 40.

(ii) Once decree reached finality, it is not open to judgement-debtor to plead new facts in execution proceedings; Pothuri Thulasidas v. Potru Nageswara, AIR 2005 AP 171.

(iii) Suit was not ‘in reality’ one in the nature of execution of the earlier order of eviction in favour of plaintiff and is not barred. Suit based upon fresh cause of action. The High Court was wrong in treating present suit as one ‘virtually’ for execution of the order of eviction passed in the earlier rent control case. Hence the ban under section 47 cannot apply; Ajit Chopra v. Sadhu Ram, AIR 2000 SC 212.

(iv) An executing court granted decree for interest which was not part of the decree for execution on ground of delay and unreasonable stand taken in execution. Since the executing court cannot travel beyond decree under execution, the said decree was held to be without jurisdiction; Kameshwar Das Gupta v. State of Uttar Pradesh, AIR 1997 SC 410.

(v) New plea cannot be allowed to be raised for the first time in execution proceedings; Jalada Daland Uchha Bidyapith v. State of Orissa, AIR 1993 Ori 257: 1993 (1) Ori LR 77.

(vi) Execution of the decree ought not to be refused, unless the decree itself is a nullity; Jalada Daland Uchha Bidyapith v. State of Orissa, AIR 1993 Ori 257: 1993 (1) Ori LR 77.

(vii) Injunction decree can be enforced by the legal heir of the decree holder against the J.O. after the death of the decree holder; D’souza, J. v. A. Joseph, AIR 1993 Kant 68: ILR (Kant) (1992) 2972.

(viii) Death of the decree holder during pendency of the execution proceedings. His legal representative can continue the proceedings after obtaining the succession certificate; Kariyamma v. Assistant Commissioner and Land Acquisition Officer, AIR 1993 Karn 321: 1993 (1) Civ LJ 297: 1992 (3) Cur CC 664.

(ix) In absence of any challenge to decree no objection can be raised in execution; State of Punjab v. Mohinder Singh Randhawa, AIR 1992 SC 473.

(x) Auction sale held in execution of final decree can be set aside under section 47 on displacement by Appellate Court of preliminary decree on which final decree was based; Kumar Sudhendu Narain Deb v. Renuka Biswas, AIR 1992 SC 385.

1. Sub-section (2) omitted by Act No. 104 of 1976, sec. 20 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 20 for Explanation (w.e.f. 1-2-1977). Earlier Explanation was ins. by Act 66 of 1956, sec. 5 (w.e.f. 1-1-1957).

48. Execution barred in certain cases.

Rep. by the limitation Act, 1963(36 of 1963), s. 28 (with effect from the 1st January, 1964)

49. Transferee.

Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.

50. Legal representative.

(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

51. Powers of Court to enforce execution.

Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by the sale without attachment of any property;

(c) by arrest and detention in prison 1[for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section];

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require:

2[Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

Explanation.-In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.]

STATE AMENDMENTS

Uttar Pradesh-In section 51 of the Code Clause (bb) shall be inserted after clause (b).

“(bb) by transfer other than sale by attachment or without attachment of any property”

[Vide U.P. Act No. 24 of 1954, sec. 2 and Sch I, Item 5, Entry 4 (w.e.f. 30-11-1954)].

COMMENTS

Money decree passed against the company and its managing director. Held, the decree is not passed against Managing Director in his individual capacity. He cannot be sent to jail in enforcement of the decree; M/s. March Ltd. (In Liqn.), Chandigarh v. M/s. Pan India Plastic Pvt. Ltd., New Delhi, AIR 1993 P&H 215: 1993 (1) Bank LT 127: 1993 (1) Land LR 431.

—————

1. Ins. by Act 104 of 1976, sec. 21 (w.e.f. 1‑2‑1977).

2. Ins. by Act 21 of 1936, sec. 2.

52. Enforcement of decree against legal representative.

(1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.

53. Liability of ancestral property.

For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

54. Partition of estate or separation of share.

Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession shares, of such estates.

STATE AMENDMENT

Karnataka:– For section 54, substitute the following section, namely:-

“54. Partition of Estate or sepration of share:-

Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government or for the separate possession of share of such an estate, the partition of the estate or the separation of the share of such an estate shall be made by the Court in accordance with the law if any, for the time being in force relating to the partition , or the separate possession of shares and if neccessary on the report of a revenue officer, not below the rank of tehsildar or such other person as the Court may appoint as Commissioner in that behalf.”

[Vide Karnataka Act 36 of 1998, sec. 2.]

55. Arrest and detention.

(1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering the detention is situate, or, where such civil prison does not afford suitable accommodation, in any other place which the State Government may appoint for the detention of persons ordered by the Courts of such district to be detained:

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise :

Provided, secondly, that no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found:

Provided, thirdly, that, if the room is in the actual occupancy of a woman who is not the judgment-debtor and who according to the customs of the country does not appear in public, the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest:

Provided, fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.

(2) The State Government may, by notification in the Official Gazette, declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the State Government in this behalf.

(3) Where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he 1[may be discharged], if he has not committed any act of bad faith regarding the subject of the application and if he complies with provisions of the law of insolvency for the time being in force.

(4) Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court 2[may release] him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realised or commit him to the civil prison in execution of the decree.

1. Subs. by Act 3 of 1921, sec. 2, for “will be dicharged”.
2. Subs. by Act 3 of 1921, sec. 2, for “shall release”.

56. Prohibition of arrest or detention of women in execution of decree for money.

Notwithstanding anything in this Part, the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.

57. Subsistence allowance.

The State Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors.

58. Detention and release.

(1) Every person detained in the civil prison in execution of a decree shall be so detained,-

(a) where the decree is for the payment of a sum of money exceeding 12 [five thousand rupees], for a period not exceeding three months, and]

3[(b) where the decree is for the payment of a sum of money exceeding two thousand rupees, but not exceeding five thousand rupees, for a period not exceeding six weeks :]

Provided that he shall be released from such detention before the expiration of the 4[said period of detention]-

(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or

(ii) on the decree against him being otherwise fully satisfied, or

(iii) on the request of the person on whose application he has been so detained, or

(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance :

Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court.

5[(1A) For the removal of doubts, it is hereby declared that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed 6[two thousand rupees.]]

(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.

1. Subs, by Act No. 104 of 1976, sec. 22, for “fifty rupees, for a period of six months, and” (w.e.f. 1-2-1977).
2. Subs, by Act No. 46 of 1999, section 5 for “one thousand rupees”, (w.e.f. 1-7-2002).
3. Clause (b) subs. by Act 104 of 1976, sec. 22 (w.e.f. 1-2-1977) and again subs. by Act 46 of 1999, sec. 5 (w.e.f. 1-7-2002)
4. Subs. by Act 104 of 1976, sec. 22 for certain words (w.e.f. 1-2-1977)
5. Ins. by Act No. 104 of 1976, s. 22, (w.e.f. 1-2-1977).
6. Subs. by Act No. 46 of 1999 section 5 for “five hundred rupees” (w.e.f. 1-7-2002).

59. Release on ground of illness.

(1) At any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on ground of his serious illness.

(2) Where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit state of health to be detained in the civil prison.

(3) Where a judgment-debtor has been committed to the civil prison, he may be released therefrom,-

(a) by the State Government, on the ground of the existence of any infectious or contagious disease, or

(b) by the committing Court, or any Court to which that Court is subordinate, on the ground of his suffering from any serious illness.

(4) A judgment-debtor released under this section may be re-arrested, but the period of his detention in the civil prison shall not in the aggregate exceed that prescribed by section 58.

60. Property liable to attachment and sale in execution of decree

160. Property liable to attachment and sale in execution of decree.—(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment‑debtor or by another person in trust for him or on his behalf:

Provided that the following properties shall not be liable to such attachment or sale, namely:—

(a) the necessary wearing‑apparel, cooking vessels, beds and bedding of the judgment‑debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;

(b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed‑grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to 2[an agriculturist or a labourer or a domestic servant] and occupied by him;

(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the Government 3[or of a local authority or of any other employer], or payable out of any service family pension fund 4notified in the Official Gazette by 5[the Central Government or the State Government] in this behalf, and political pension;

6[(h) the wages of labourers and domestic servants, whether payable in money or in kind 7[***];]

8[(i) salary to the extent of 9[the first 10[11[one thousand rupees]] and two‑thirds of the remainder] 12[in execution of any decree other than a decree for maintenance]:

13[Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty four months, be finally exempt from attachment in execution of that decree;]]

14(ia) one‑third of the salary in execution of any decree for maintenance;]

15[(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), applies;]

(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 16[1925 (19 of 1925)], for the time being applies in so far as they are declared by the said Act not to be liable to attachment;

17[(ka) all deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968 (23 of 1968), for the time being applies, in so far as they are declared by the said Act as not to be liable to attachment;

(kb) all moneys payable under a policy of insurance on the life of the judgment debtor;

(kc) the interest of lessee of a residential building to which the provisions of law for the time being in force relating to control of rents and accommodation apply;]

18[(l) any allowance forming part of the emoluments of any 19[servant of the Government] or of any servant of a railway company or local authority which the 20[appropriate Government] may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant for allowance made to 21[any such servant] while under suspension;]

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;

(n) a right to future maintenance;

(o) any allowance declared by 22[any Indian law] to be exempt from liability to attachment or sale in execution of a decree; and

(p) where the judgment‑debtor is a person liable for the payment of land-revenue; any movable property which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear of such revenue.

23[Explanation I.—The moneys payable in relation to the matters mentioned in clauses (g), (h), (i) (ia), (j), (l) and (o) are exempt from attachment or sale, whether before or after they are actually payable, and, in the case of salary, the attachable portion thereof is liable to attachment, whether before or after it is actually payable.]

24[Explanation II.—In clauses (i) and (ia)] “salary” means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (l), derived by a person from his employment whether on duty or on leave.

25[Explanation 26[III].—In clause (l) “appropriate Government” means—

(i) as respect any 27[person] in the service of the Central Government, or any servant of 28[a Railway Administration] or of a cantonment authority or of the port authority of a major port, the Central Government;

29[***]

(iii) as respects any other servant of the Government or a servant of any other 30[***] local authority, the State Government.]

31[Explanation IV.—For the purposes of this proviso, “wages” includes bonus, and “labourer” includes a skilled, unskilled or semi skilled labourer.

Explanation V.—For the purposes of this proviso, the expression “agriculturist” means a person who cultivates land personally and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner, or agricultural labourer.

Explanation VI.—For the purposes of Explanation V, an agriculturist shall be deemed to cultivate land personally, if he cultivates land—

(a) by his own labour, or

(b) by the labour of any member of his family, or

(c) by servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both.]

32[(1A) Notwithstanding anything contained in any other law for the time being in force, an agreement by which a person agrees to waive the benefit of any exemption under this section shall be void.]

(2) Nothing in this section shall be deemed 33[***] to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land, 34[***].

35[***]

STATE AMENDMENTS

Andhra Pradesh.—In section 60, in sub-section (1), in the proviso, in clause (g), in its application to the Andhra Area of the State of Andhra Pradesh, after the words “stipends and gratuities, allowed to pensioners of the Government”, insert the words “or of a local authority”.

[Vide Code of Civil Procedure (Andhra Pradesh) (Andhra Area) Amendment Act, 1950 (34 of 1950) as amended by the Andhra Pradesh Act 9 of 1961.]

In its application to the whole of the State of Andhra Pradesh,—

A. (i) In section 60, in sub-section (i), in the proviso, after clause (k), insert the following clause, namely:—

“(kk) amount payable: under policies issued in pursuance of the rules for the Andhra Pradesh Government Life Insurance and Provident Fund and the Hyderabad State Life Insurance and Provident Fund;”

(ii) In section 60, in sub-section (1), after Explanation 2, insert the following Explanation, namely:—

“Explanation 2A.—Where any sum payable to a Government servant is exempt from attachment under the provisions of clause (kk), such sum shall remain exempt from attachment notwithstanding the fact that owing to the death of the Government servant it is payable to some other person.”

[Vide Code of Civil Procedure (Andhra Pradesh) (Telangana Area) Amendment Act 11 of 1953, as amended by the Andhra Pradesh Act 10 of 1962.]

B. (i) In section 60, in sub-section (1), in the proviso, after clause (kk), insert the following clause, namely:—

“(kkk) amounts payable under the Andhra Pradesh State Employees’ Family Benefit Fund Rules;”;

(ii) in Explanation 2 A, for the expression “clause (kk)”, substitute the expression “clauses (kk) and (kkk)”.

[Vide Andhra Pradesh Act 24 of 1979, sec. 2 (w.e.f. 5-9-1979).]

In its application to the Telangana area of the State of Andhra Pradesh in section 60, in sub-section (1):—

(i) in the proviso, after clause (g), insert the following clause, namely:—

“(gg) pension granted or continued by the Central Government, the Government of the pre reorganisation Hyderabad State or any other State Government on account of past services or present infirmities or as a compassionate allowance; and”

(ii) after Explanation 2, insert Explanation 2A which is same as given above with the addition of the words, brackets and letters “clause (gg) or” after the words “under the provisions of”.

[Vide Andhra Pradesh Act 18 of 1953 (w.e.f. 2-12-1953).]

Chandigarh.—Same as in Punjab.

Delhi.—Same as in Punjab.

Gujarat.—In section 60, in sub-section (1),—

(a) in the proviso, after clause (g), insert the following clause, namely:—

“(gg) stipends and gratuities allowed to pensioners of a local authority, and”

(b) in Explanation I, after the brackets and letter “(g)”, insert the brackets and letters “(gg)”.

[Vide Code of Civil Procedure (Bombay Amendment) Act, 1948 (Bombay Act 60 of 1948), sec. 2 (w.e.f. 30-11-1948).]

Haryana.—Same as in Punjab.

Himachal Pradesh.—In section 60, in sub section (1), in the proviso,—

(i) in clause (c), at the end, insert the following:—

“or compensation paid for such houses and buildings (including compensation for the materials and the sites and the land referred to above) acquired for a public purpose”;

(ii) after clause (c), insert the following, clause, namely:—

“(cc) compensation paid for agricultural lands belonging to agriculturists and acquired for a public purposes;”

[Vide Civil Procedure Code (Himachal Pradesh Amendment) Act 6 of 1956.]

Karnataka.—In section 60, in sub-section (1), in the proviso, after clause (p), insert the following clause, namely:—

‘’(pp) where the judgment‑debtor is a servant of the State Government who has insured his life under the rules in force relating to the Official Branch of the Karnataka Government Life Insurance Department,—

(1) in the case of insurance effected prior to the ninth day of May, 1911, the whole of the bonus payable or paid thereunder to such servant, or in the event of his death to his nominee or other person or persons entitled to such bonus under the said rules; and

(2) in the case of insurance effected on or after the ninth day of May, 1911, and such insurance is compulsory, then the bonus in respect of the compulsory premia payable or paid to such servant, or in the event of his death to his nominee or other person or persons entitled to such bonus under the said rules.”

[Vide Civil Procedure Code (Mysore Amendment) Act 14 of 1952.]

Kerala.—In section 60, in sub-section (1), in the proviso—

(i) in clause (g), after the words “stipends and gratuities allowed to pensioners”, insert the words “or of a local authority”.

[Vide Kerala Act 13 of 1957, sec. 3 (w.e.f. 1-10-1958).]

[Ed.—This amendment in clause (g) was made prior to the amendment made by the Central act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).]

(ii) after clause (g), insert the following clause, namely:—

“(gg) all moneys payable to the beneficiaries under the Family Benefit Scheme for the employees of the Government of Kerala;”

[Vide Kerala Act 1 of 1988, sec. 2 (w.e.f. 5-1-1988).]

Maharashtra.—In Section 60, in sub-section (1), in the proviso—

(a) after clause (g), the following clause shall be inserted, namely:

“(gg) in the Hyderabad area of the State of Maharashtra, any pension granted or continued by the Central Government or the Government of the former State of Hyderabad or any other State Government, on account of past services or present infirmities or as a compassionate allowance, which is not covered by clause (g);”

(b) after clause (kb), insert the following clause, namely:

“(kbb) the amounts payable under the policies issued in pursuance of the Rules for the Hyderabad State Life Insurance and provident fund, which are not covered under clause (ka) or (kb).

Explanation.—Where any sum payable to a Government servant is exempt from attachment under this clause or clause (gg) such sum shall remain exempt from attachment, notwithstanding the fact that owing to the death of the Government servant the sum is payable to some other person;”

[Vide Maharashtra Act 65 of 1977, sec. 6 (w.e.f. 19-12-1977).]

Pondicherry.— Same as in Tamil Nadu.

[Vide Pondicherry Act 26 of 1968.]

Punjab.—In its application to the State of Punjab including the Pepsu area thereof as it was immediately before the 1st November, 1956,—

(a) in section 60, in sub-section (1), in the proviso,—

(i) in clause (c), for the words “occupied by him” the following words shall be deemed to be substituted, namely:—

“not proved by the decree holder to have been let out on rent or lent to persons other than his father, mother, wife, daughter‑in‑law, brother, sister or other dependants or left vacant for a period of a year or more”.

(ii) after clause (c), insert the following clauses, namely:—

“(cc) milch animals, whether in milk or in calf, kids, animals used for the purposes of transport of draught cart and open spaces or enclosures belonging to an agriculturist and required for use in case of need for tying cattle, parking carts, or stacking fodder or manure;

(ccc) one main residential‑house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment debtor other than an agriculturist and occupied by him:

Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered.”

(b) In Section 60, after sub‑section (2), insert the following sub‑sections, namely:—

“(3) Notwithstanding any other law for the time being in force an agreement by which a debtor agrees to waive any benefit of any exemption under this section shall be void.

(4) For the purposes of this section the word ‘agriculturist’ shall include every person whether as owner, tenant, partner or agricultural labourer who depends for his livelihood mainly on income from agricultural land as defined in the Punjab Alienation of Land Act, 1900.

(5) Every member of a tribe notified as agricultural under the Punjab Alienation of Land Act, 1900, and every member of a scheduled caste shall be presumed to be an agriculturist until the contrary is proved.

(6) No order for attachment be made unless the Court is satisfied that the property sought to be attached is not exempt from attachment or sale.”

[Vide Punjab Relief of Indebtedness Act 7 of 1934, sec. 35 as amended by Punjab Acts 12 of 1940, 6 of 1942 and 14 of 1960 (w.e.f. 30-12-1960).]

Rajasthan.—In Section 60, in sub section (1), in the proviso,—

(i) in clause (b) after the word “agriculturist,” insert the words “his milch cattle and those likely to calve within two years,”;

[Vide Rajasthan Act 19 of 1958 (w.e.f. 18-4-1958).]

(ii) after clause (k), insert the following clause, namely:—

“(kk) moneys payable under Life Insurance Certificates issued in pursuance of the Rajasthan Government Servants Insurance Rules, 1953;”

(iii) In Section 60, in sub-section (1), after Explanation 3, insert the following Explanation, namely:—

“Explanation 4.—Where any money payable to a Government servant of the State is exempt from attachment under the provision contained in clause (kk), such money shall remain exempt from attachment notwithstanding the fact that owing to the death of a Government servant it is payable to some other person”.

[Vide Rajasthan Act 16 of 1957, sec. 2 (w.e.f. 6-6-1957).]

Tamil Nadu.—In section 60, in sub-section (1), in the proviso, after the words “stipends and gratuities allowed to the pensioners of the Government”, insert the words “or of a local authority”.

[Vide Code of Civil Procedure (Madras Amendment) Act (34 of 1950).]

This Act has been extended to Kanya Kumari district and Shen Cottah taluk of the Tirunelveli District by the Madras by the Andhra Pradesh and Madras (Alteration Boundaries) (Act 66 of 1959) by the Madras (Added Territories) Adaptation of Laws Order, 1961.

Uttar Pradesh.—In section 60, in sub-section (1), after Explanation 1, insert the following Explanation, namely:—

“Explanation 1A.— Particulars mentioned in clause (c) are exempt from sale in execution of a decree whether passed before or after the commencement of the Civil Procedure Code (United Provinces Amendment) Act, 1948, for enforcement of a mortgage of charge thereon.”

[Vide the Code of Civil Procedure (Uttar Pradesh Amendment) Act 35 of 1948, sec. 2 (w.e.f. 28-8-1948).]

COMMENTS

Immunity from attachment with regard to residential house is not available to debtor unless he establishes connection between the agricultural operations carried on by him and the house sought to be attached; Paruchuru Narasimha Rao v. Nune Pandu Ranga Rao, AIR 1994 AP 197.

—————

1. For amendments to section 60, in its application to East Punjab, see the Punjab Relief of Indebtedness Act, 1934 (Punjab Act 7 of 1934), sec. 35, as amended by Punjab Acts 12 of 1940 and 6 of 1942.

2. Subs. by Act 104 of 1976, sec. 23, for “an agriculturist” (w.e.f. 1-2-1977).

3. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).

4. For such a notification, see Gazette of India, 1909, Pt. I, p. 5.

5. Subs. by the A.O. 1937, for “the G.G. in C.”

6. Subs. by Act 9 of 1937, sec. 2, for clauses (h) and (i). The amendments made by that section have no effect in respect of any proceedings arising out of a suit instituted before 1st June, 1937, see Act 9 of 1937, sec. 3.

7. The words “and salary, to the extent of the first hundred rupees and one-half the remainder of such salary” omitted by Act 5 of 1943, sec. 2.

8. Subs. by Act 5 of 1943, sec. 2, for clause (i) and proviso.

9. Subs. by Act 26 of 1963, sec. 2, for “the first hundred rupees”.

10. Subs. by Act 104 of 1976, sec. 23, for “two hundred rupees and one-half the remainder” (w.e.f. 1-2-1977).

11. Subs. by Act 46 of 1999, sec. 6, for “four hundred rupees” (w.e.f. 1-7-2002).

12. Ins. by Act 66 of 1956, sec. 6 (w.e.f. 1-1-1957).

13. Subs. by Act 104 of 1976, sec. 23, for the proviso (w.e.f. 1-2-1977).

14. Ins. by Act 66 of 1956, sec. 6 (w.e.f. 1-1-1957).

15. Subs. by Act 104 of 1976, sec. 23, for clause (j) (w.e.f. 1‑2‑1977).

16. Subs. by Act 9 of 1937, sec. 2, for “1897”.

17. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1‑2‑1977).

18. Subs. by Act 9 of 1937, sec. 2, for clause (l).

19. Subs. by Act 5 of 1943, sec. 2, for “public officer”.

20. Subs. by the A.O. 1937, for “G.G. in C.”

21. Subs. by Act 5 of 1943, sec. 2, for “any such officer or servant”.

22. Subs. by A.O. 1937, for “any law passed under the Indian Councils Acts, 1861 and 1892”.

23. Subs. by Act 104 of 1976, sec. 23, for Explanation 1 (w.e.f. 1‑2‑1977).

24. Subs. by Act 104 of 1976, sec. 23, for “Explanation 2.—In clauses (h) and (i)” (w.e.f. 1‑2‑1977).

25. Ins. by the A.O. 1937.

26. Subs. by Act 104 of 1976, sec. 23, for “3” (w.e.f. 1‑2‑1977).

27. Subs. by Act 5 of 1943, sec. 2, for “public officer”.

28. Subs. by the A.O. 1950, for “a Federal Railway”.

29. Clause (ii) omitted by the A.O. 1948.

30. The word “railway or” omitted by the A.O. 1950.

31. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).

32. Ins. by Act 104 of 1976, sec. 23 (w.e.f. 1-2-1977).

33. The letter and brackets “(a)” rep. by Act 10 of 1914, sec. 3 and Sch. II. 34. The word “or” rep. by Act 10 of 1914, sec. 3 and Sch. II.

35. Clause (b) rep. by Act 10 of 1914, sec. 3 and Sch. II.

61. Partial exemption of agricultural produce.

The State Government 1[***] may, by general or special order published in the Official Gazette, declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to the State Government to be necessary for the purpose of providing until the next harvest the due cultivation of the land and for the support of the judgment-debtor and his family, shall, in the case of all agriculturists or of any class of agriculturists, be exempted from liability to attachment or sale in exaction of a decree.

1. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, sec. 2 and Sch. I

62. Seizure of property in dwelling-house.

(1) No person executing any process under this Code directing or authorizing seizure of movable property shall enter any dwelling-house

after sunset and before sunrise.

(2) No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.

(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country, does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.

63. Property attached in execution of decrees of several Courts.

(1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

1[Explanation.-For the purposes of sub-section (2), “proceeding taken by a Court” does not include an order allowing, to a decree-holder who has purchased property at a sale held in execution of a decree, set off to the extent of the purchase price payable by him.]

1. Ins. by Act No. 104 of 1976, sec. 24 (w.e.f. 1-2-1977).

64. Private alienation of property after attachment to be void.

1[(1)] Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

2[(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment.]

Explanation-For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.

Comments

Sale of attached property before dismissal of execution application is void; Nancy John Lyndon v. Prabhati Lal Chodhury, AIR 1987 SC 2061.

1. Section 64 renumbered as sub-section (1) of that section by Act 22 of 2002, sec. 3 (w.e.f. 1-7-2002).

2. Ins. by Act 22 of 2002, sec. 3 (w.e.f. 1-7-2002).

65. Purchaser’s title.

Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.

66. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff

[Rep. by Benami Transactions (Prohibition) Act, 1988 (45 of 1988), sec. 7 (w.e.f. 19-5-1988).]

67. Power for State Government to make rules as to sales of land in execution of decrees for payment of money.

1[(1)] The State Government 2[***] may, by notification in the Official Gazette, make rules for any local area imposing conditions in respect of the sale of any class of interests in land in execution of decrees for the payment of money, where such interests are so uncertain or undermined as, in the opinion of the State Government to make it impossible to fix their value.

3[(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of and in execution of decrees were in force therein, the State Government may, by notification in the Official Gazette, declare such rules to be in force, or may 4[***] by a like notification, modify the same.

Every notification issued in the exercise of the powers conferred by this sub-section shall set out the rules so continued or modified.]

4[(3) Every rule made under this section shall be laid, as soon as may be after it is made, before the State Legislature.]

1. Section 67 renumbered as sub-section (1) of that section by Act 1 of 1914, sec. 3.
2. The words “with the previous sanction of the G.G. in C.,” omitted by Act 38 of 1920, sec. 2 and Sch. I.
3. Added by Act 1 of 1914, sec. 3.
4. Ins. by Act No. 20 of 1983, sec. 2 and Sch. (w.e.f. 15-3-1984).

68-72. Repealed

68.-72. Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 7. (w.e.f. 1-1-1957).

73. Proceeds of execution-sale to be rateably distributed among decree-holders.

(1) Where assests are held by a Court and more persons than one have, before the receipt of such assests, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assests, after deducting the costs of realization, shall be rateably distributed among all such persons :

Provided as follows :-

(a) where any property is sold subject to a mortgage or charge, the mortgage or incumbrancer shall not be entitled to share in any surplus arising from such sale;

(b) where any property liable to be sold in execution of a decree is subject to a mortgage or charges the Court may, with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold;

(c) where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied-

first, in defraying the expenses of the sale;

secondly, in discharging the amount due under the decree;

thirdly, in discharging the interest and principal moneys due on subsequent incumbrances (if any); and

fourthly, rateably among the holders of decrees for the payment of money against the judgment debtor, who have, prior to the sale of the property, applied to the Court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.

(2) Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.

(3) Nothing in this section affects any right of the Government.

COMMENTS

The debts due to the State are entitled to priority over all other debts; Union of India v. Somasundaram Mills (P) Ltd., AIR 1985 SC 407.

74. Resistance to execution.

Where the Court is satisfied that the holder of a decree for the possession of immovable property or that the purchaser of immovable property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or some person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such other person to be detained in the civil prison for a term which may extend to thirty days and may further direct that the decree-holder or purchaser be put into possession of the property.

75. Power of court to issue commissions.

Subject to such conditions and limitations as may be prescribed, the court may issue a commission-

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

1[(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.]

1. Ins. by Act No. 104 of 1976, sec. 26 (w.e.f. 1-2-1977).

76. Commission to another Court.

(1) A commission for the examination of any person may be issued to any Court (not being a High Court) situate in a State other than the State in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.

(2) Every Court receiving a commission for the examination of any person under sub-section (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order.

77. Letter of request.

In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place not within 1[India].

1. Subs. by Act 2 of 1951, sec. 3, for “the States”.

78. Commissions issued by foreign Courts.

1[78. Commissions issued by foreign Courts.

Subject to such conditions and limitations as may be prescribed the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issue by or as the instance of-

(a) Courts situate in any part of India to which the provisions of this Code do not extend; or

(b) Courts established or continued by the authority of the Central Government outside India, or

(c) Courts of any State or country outside India.]

1. Subs. by Act 2 of 1951, sec. 11, for section 78 (w.e.f. 1-4-1951).

79. Suits by or against Government

1[Suits by or against Government

In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-

(a) in the case of a suit by or against the Central Government,2[the Union

of India], and

(b) in the case of a suit by or against a State Government, the State.

1. Subs. A.O. 1948, for section 79.
2. Subs. by the A.O. 1950, for “the Dominion of India”.

80. Notice.

1[(1)] 2[Save as otherwise provided in sub-section (2), no suits 3[shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been 4[delivered to, or left at the office of]-

(a) in the case of a suit against the Central Government, 5[except where it relates to a railway], a Secretary to that Government;

6[7[(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway];

8[(bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;]

(c) in the case of a suit against 9[any other State Government], a Secretary to that Government or the Collector of the district; 10[***]

11[***]

and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

12[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-

(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]

STATE AMENDMENTS

Madhya Pradesh –(i) After sub-section (3) of Section 80 the following inserted:

“(4) where in a suit or proceeding referred to in Rule 3B of Order 1, the state is joined as a defendant or non applicant or where the Court orders joinder of the State as defendant or non applicant in exercise of powers under Rule 10(2) of Order 1 such suit or proceeding shall not be dismissed by reasons of Omission of the plaintiff or applicant to issue notice under sub-section (1)”.

(ii) In sub-section (1) of section 80 for the words “sub-section (2)” substitute “sub-section (2) or (4)”. [M.P. Act No. 29 of 1984].

1. Sec. 80 renumbered as sub-section (1) of that section by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 27 for “No suit shall be instituted’ (w.e.f. 1-2-1977).
3. Subs. by Act 26 of 1963, sec. 3 for “shall be instituted against the Government” (w.e.f. 5-6-1964). The words in italics were subs. by the A.O. 1948 for “instituted against the Crown”.
4. Subs. by the A.O. 1937, “in case of the Secretary of State in Council, deliver to , or left at the office of a Secretary to the L.G. or the COntroller ofn the district”.
5. Ins. by Act 6 of 1948, sec. 2.
6. Clause (aa) ins. by Act 6 of 1948, sec. 2.
7. Clause (aa) relettered as clause (b) and the former clause (b) omitted by the A.O. 1948.
8. Ins. by the Act 26 of 1963, sec. 3 (w.e.f. 5-6-1964).
9. Subs. by the Act 26 of 1963, sec. 3 for “a State Government” (w.e.f. 5-6-1964).
10. The word “and” omitted by the A.O. 1948.
11. Clause (d) omitted by the A.O. 1948.
12. Ins. by Act No. 104 of 1976, sec. 27 (w.e.f. 1-2-1977).

81. Exemption from arrest and personal appearance.

In a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity-

(a) the defendant shall not be liable to arrest nor his property to attachment otherwise than in execution of a decree, and

(b) where the Court is satisfied that the defendant cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.

82. Execution of decree.

1[(1) Where, in a suit by or against the Government or by or against a public officer in respect of any act purporting to be done him in his official capacity, a decree is passed against the Union of India or a State or, as the case may be, the public officer, such decree shall not be executed except in accordance with the provisions of sub-section (2)].

(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of

2[such decree].

3[(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they apply in relation to a decree, if the order or award-

(a) is passed or made against 4[the Union of India] or a State or a public officer in respect of any such act as aforesaid, whether by a Court or by any other authority; and

(b) is capable of being executed under the provisions of this Code or of any other law for the time being in force as if it were a decree.]

1. Subs, by Act No. 104 of 1976 for sub-section (1) (w.e.f. 1-2-1977). 
2. Subs, by Act No. 104 of 1976 for “such report” (w.e.f. 1-2-1977).
3. Ins. by Act 32 of 1949, sec. 2.
4. Subs. by the A.O. 1950, for “the Dominion of India”.

83. When aliens may sue.

Alien enemies residing in India with the permission of the Central Government, and alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission, or residing in a foreign country, shall not sue in any such court.

Explanation-Every person residing in a foreign country, the Government of i which is at war with India and carrying on business in that country without a licence in that behalf granted by the Central Government, shall, for the purpose of this section, be deemed to be an alien enemy residing in a foreign country.

84. When foreign State may sue.

A foreign State may sue in any competent Court:

Provided that the object of the suit is to enforce a private right vested in the Ruler of such State or in any officer of such State in his public capacity.

85. Persons specially appointed by Government to prosecute or defend on behalf of foreign Rulers.

(1) The Central Government may, at the request of the Ruler of a foreign State or at the request of any person competent in the opinion of the Central Government to act on behalf of such Ruler, by order, appoint any persons to prosecute or defend any suit on behalf of such Ruler, and any persons so appointed shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of such Ruler.

(2) An appointment under this section may be made for the purpose of a specified suit or of several specified suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute or defend on behalf of such Ruler.

(3) A person appointed under this section may authorise or appoint any other persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto.

86. Suits against foreign Rulers, Ambassadors and Envoys.

(1) No [* * * *]1 foreign State may be sued in any Court otherwise competent to try the suit except with consent of the Central Government certified in writing by a Secretary to that Government:

Provided that a person may, as a tenant of immovable property sue without such consent as aforesaid 2[a foreign State] from whom he holds or claims to hold the property.

(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which 3[the foreign State] may be sued, but it shall to be given, unless it appears to the Central Government that 3[the foreign State].

(a) has instituted a suit in the Court against the person desiring to sue 4[it], or

(b) 5[itself] or another, trades within the local limits of the jurisdiction of the Court, or

(c) is in possession of immovable property situate within those limits and is to be sued with reference to such property or for money charged thereon, or

(d) has expressly or impliedly waived the privilege accorded to 4[it] by this section.

6[(3) Except with the consent of the Central Government, certified in writing by a Secretary to that government, no decree shall be executed against the property of any foreign State.]

(4) The proceeding provisions of this section shall apply in relation to –

7[(a) any Ruler of a foreign State;]

8[(aa)] any ambassador or Envoy of a foreign State ;

(b) any High Commissioner of a Commonwealth country; and

(c) any such member of the staff 9[of the foreign State or the staff or retinue of the Ambassador] or Envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf.

10[as they apply in relation to a foreign State].

7[(5) the following persons shall not be arrested under this Code, namely : –

(a) any ruler of a foreign State;

(b) any Ambassador or Envoy of a foreign State;

(c) any High Commissioner of a Commonwealth country;

(d) any such member of the staff of the foreign State or the staff or retinue of the Ruler, Ambassador or Envoy of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may, by general or special order, specify in this behalf.

(6) Where a request is made to the Central Government for the grant of any consent referred to in sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part, give to the person making the request a reasonable opportunity of being heard.]

1. The words “Ruler of a” omitted by Act No. 104 of 1976, sec. 29 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 29, for “a Ruler” (w.e.f. 1-2-1977).
3. S ubs. by Act No. 104 of 1976, sec. 29, for “the Ruler” (w.e.f. 1 -2-1977).
4. Subs, by Act No. 104 of 1976, sec. 29, for “him” (w.e.f. 1-2-1977).
5. Subs, by Act No. 104 of 1976, sec. 29, for “himself (w.e.f. 1- 2-1977).
6. Subs, by Act No. 104 of 1976, sec. 29, for sub-section (3) (w.e.f. 1-2-1977).
7. Ins. by Act No. 104 of 1976, sec. 29 (w.e.f. 1-2-1977).
8. Cl. (a) re-lettered as cl. (aa) by Act No. 104 of 1976, sec. 29, (w.e.f. 1-2-1977).
9. Subs, by Act No. 104 of 1976, sec. 29, for “or retinue of the Ruler, Ambassador” (w.e.f. 1-2-1977).
10. Subs, by Act No. 104 of 1976, sec. 29, for “as they apply in relation to the Ruler of a foreign State” (w.e.f. 1-2-1977).

87. Style of foreign Rulers as parties to suits.

The Ruler of a foreign State may sue, and shall be sued, in the name of his State:

Provided that in giving the consent referred to in section 86, the Central Government may direct that the Ruler may be sued in the name of an agent or in any other name.

87A. Definitions of “foreign State” and “Ruler”.

(1) In this Part,-

(a) “foreign State” means any State outside India which has been recognised by the Central Government; and

(b) “Ruler”, in relation to a foreign State, means the person who is for the time being recognized by the Central Government to be the head of that State.

(2) Every Court shall take judicial notice of the fact –

(a) that a state has or has not been recognized by the Central Government;

(b) that a person has or has not been recognized by the Central Government to be the head of a State.

87B. Applications of sections 85 and 86 to Rulers of former Indian States.

1[(1) In the case of any suit by or against the Ruler of any former Indian State which is based wholly or in part upon a cause of action which arose before the commencement of the Constitution or any proceedings arising out of such suit, the provisions of section 85 and sub-sections (1) and (3) of section 86 shall apply in relation to such Ruler as they apply in relation to the Ruler of a foreign State].]

(2) In this section-

(a) “former Indian State” means any such Indian State as the Central Government may, by notification in the Official Gazette, specify for the purposes of this;2[***]

3[(b) “commencement of the Constitution” means the 26th day of January, 1950; and

(c) “Ruler” in relation to a former Indian State, has the same meaning as in article 363 of the Constitution.]

1. Subs. by Act 54 of 1972, sec. 3, for sub-section (1) (w.e.f. 9-9-1972).
2. The word “and” omitted by Act 54 of 1972, sec. 3 (w.e.f. 9-9-1972).
3. Subs. by Act 54 of 1972, sec. 3, for clause (b) (w.e.f. 9-9-1972).

88. Where interpleader suit may be reinstituted.

Where two or more persons claim adversely to one another the same debts, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.

89. Settlement of disputes outside the Court

1[89. Settlement of disputes outside the Court.

(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for-

(a) arbitration;

(b) conciliation

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) Where a dispute had been referred-

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.

(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.]

1. Sec. 89 was repealed by Act 10 of 1940, sec. 49 and Sch. II and again added by Act No. 46 of 1999, section 7 (w.e.f. 1-7-2002).

90. Power to state case for opinion of Court.

Where any person agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.

91. Public nuisances and other wrongful acts affecting the public.

1[Public nuisances and other wrongful acts affecting the public]

[(1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,-

(a) by the Advocate General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.]

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

1. Subs. by Act No. 104 of 1976, sec. 30 for the former heading (w.e.f. 1-2-1977).

92. Public charities.

1[Public charities.

(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the 2[leave of the Court] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a Aectee,-

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

3[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property];

(d) directing accounts and inquires;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863) 4[or by any corresponding law in force in 5[the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that sub-section.

6[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more the following circumstances, namely :-

(a) where the original purposes of the trust, in whole or in part,-

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust;

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since they were laid down,-

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of

using the property available by virtue of the trust, regard being had to the spirit of the trust.]]

STATE AMENDMENT

Uttar Pradesh-After clause (b) of sub-section (1) of section 92 insert the following: “

(bb) for delivery of possession of any trust property against a person who has ceased to be trustee or has been removed.”

[Vide U.P. Act No. 24 of 1954, sec. 2 and Sch., Item 5, Entry 5 (w.e.f. 30-11-1954).]

COMMENTS

(i) Suit against the appointment of trustees—Held, court cannot enquire whether the trustees were validly appointed under provisions of section 92; Duttgir Mahant v. Rishi Ram, AIR 1993 P&H 231: 1993(1) Cur LJ 209: (1993) 1 Pun LR 95.

(ii) Sale of property of religious and charitable endowments by private negotiation should not be permitted by court unless justified by special reasons; R. Venugopala Naidu v. Venkatarayulu Naidu Charities, AIR 1990 SC 444.

1. Section 92 shall not apply to any religious trust in Bihar.
2. Subs. by Act No. 104 of 1976 for “consent in writing of the Advocate-General” (w.e.f. 1-2-1977).
3. Ins. by Act 66 of 1956, sec. 9 (w.e.f. 1-1-1957).
4. Ins. by Act 2 of 1951, sec. 13 (1-4-1951).
5. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “a Part B State”.
6. Ins. by Act No. 104 of 1976, sec. 31 (w.e.f. 1-2-1977).

93. Exercise of powers of Advocate-General outside presidency-towns.

The powers conferred by sections 91 and 92 on the Advocate-General may, outside the presidency-towns, be, with the previous sanction of the State Government, exercised also by the Collector or by such officer as the State Government may appoint in this behalf.

94. Supplemental Proceedings.

In order to prevent the ends of justice from being, defeated the Court may, if it is so prescribed,-

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him so the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.

COMMENTS

(i) Provisional admission in post‑graduate medical course should not be normally granted in absence of special reason; U.P. Junior Doctors’ Action Committee v. Dr. B. Sheetal Nandwani, AIR 1992 SC 671.

(ii) Supreme Court will abstain from passing interlocutory order if it has effect or tend to be susceptible of an inference of pre-judging some important and delicate issue in main matter; Sub‑Committee of Judicial Accountability v. Union of India, AIR 1992 SC 63.

95. Compensation for obtaining arrest, attachment or injunction on insufficient grounds.

Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,-

(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable grounds for instituting the same,

the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount,1[not exceeding fifty thousand rupees], as it deems a reasonable compensation to the defendant for the 2[expense or injury (including injury to reputation) caused to him];

Provided that a Court shall not award, under this section, an amount exceeding the limits of its peculiar jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction.

1. Subs, by Act No. 46 of 1999, section 8 for “not exceeding one thousand rupees” (w.e.f. 1 -7-2002).
2. Subs. by Act No. 104 of 1976, sec. 32 for “expense or injury caused to him” (w.e.f. 1-2- 1977).

96. Appeal from original decree.

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex pane.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

1[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed 2[ten thousand rupees].]

COMMENTS

(i) When an ex parte decree is passed the defendant has two clear options. One to file an appeal and another to file an application under O. 9, R. 13 to set aside the order. Once application under O. 9, R. 13 is dismissed, he cannot by filing first appeal dispute the correctness of order posting suit for ex parte hearing or show cause for his non-appearance; Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626.

(ii) The subsequent events in first and second appeals cannot be taken indiscriminately into account. It may be permitted to be taken into account by appellate court by means of amendment of pleadings, in order to avoid multiplicity of proceedings but not where such amendment could cause prejudice to vested right of plaintiff and render him remedied; Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24.

(iii) New plea relating to question of fact cannot be allowed to be raised for the first time before the Ist appellate court; K. Shivalingaiah v. B.V. Chandra Shekara Gowda, AIR 1993 Kant 29: 1992 (2) Kant LJ 536: ILR (Kar) (1992) 1996.

1. Ins. by Act No. 104 of 1976, sec. 33 (w.e.f. 1-2-1977).2. Subs. by Act No. 46 of 1999, section 9 for “three thousand rupees” (w.e.f. 1-7-2002).

97. Appeal from final decree where no appeal from preliminary decree.

Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

98. Decision where appeal heard by two or more Judges.

(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed :

Provided that where the Bench hearing the appeal is 1[composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it.

2[(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.]

COMMENTS

Reference for opinion is permissible only if the judges who have heard the case have not pronounced their final judgments; Nirmal Swaran Singh v. Rozu‑ud‑din, AIR 1993 All 121.

1. Subs, by Act No. 104 of 1976, sec. 34 for certain words (w.e.f. 1-2-1977).2. Ins. by Act 18 of 1928, sec. 2 and Sch. I.

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.

No decree shall be reversed or “substantially varied, nor shall any case be remanded in appeal on account of any mis joinder 1[or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

1[Provided that nothing in this section shall apply to non-joinder of a necessary party.]

1. Ins. by Act. No. 104 of 1976, sec. 35 (w.e.f. 1-2-1977).

99A. No order under section 47 to be refused or modified unless decision of the case is prejudicially affected.

1[99A. No order under section 47 to be refused or modified unless decision of the case is prejudicially affected.

Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.]

1. Ins. by Act. No. 104 of 1976, sec. 36 (w.e.f. 1-2-1977).

100. Second appeal.

1[100. Second appeal

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed exparte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]

COMMENTS

(i) The scope of exercise of the jurisdiction by the High Court in second appeal under section 100 is limited to the substantial question of law. To be a substantial question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of parties before the Court; Govindaraja v. Mariamman, AIR 2005 SC 1008.

(ii) The High Court was not justified in setting aside the concurrent finding of fact on sub-letting and nuisance without formulating any substantial question of law; Hari Singh v. Kanhaiya Lal, AIR 1999 SC 3325.

(iii) The High Court, in second appeal is not justified in setting aside a mixed question of law and fact; Ram Kumar Agarwal v. Thawar Dass (dead) by LR, AIR 1999 SC 3248.

(iv) The High Court, should not interfere with the concurrent finding of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower courts; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-un-Niswan, AIR 1999 SC 3067.

(v) Where the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in second appeal, treating as substantial question of law; Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, AIR 1999 SC 2213.

(vi) The findings of fact arrived by the courts below are binding in second appeal; Smt. Bismillah Begum (dead) by LRs v. Rahmatullah Khan (dead) by LRs, AIR 1998 SC 970.

(vii) Conclusion about limitation is a finding of fact and is not open for interference in the second appeal; Smt. Saraswatidevi v. Krishnaram Baldeo Bank Limited, AIR 1998 MP 73.

(viii) Once the evidence on which the courts of fact have acted was admissible and relevant, party cannot be allowed to raise that said evidence is insufficient to justify the finding of facts in second appeal; Ramanuja Naidu v. Kanniah Naidu, JT 1996(3) SC 164.

(ix) Second Appeal—Interference with the factual finding is permissible only if the said finding is unreasonable; Sadhu Mehar v. Rajkumar Patel, AIR 1994 Ori 26.

(x) Second Appeal—Interference with factual findings recorded by the court below is permissible in cases of non‑consideration of relevant evidence; Nalini v. Padmanabhan Krishnan, AIR 1994 Ker 14.

(xi) Question of fact can not be allowed to be raised in second appeal; Prabhu Dayal v. Suwa Lal, AIR 1994 Raj 149.

(xii) Interference with finding of fact is permissible if the court below ignored weight of evidence on record altogether; Ajab Singh v. Shital Puri, AIR 1993 All 138: 1993 All LJ 548.

(xiii) Erroneous application of law—Second appeal is maintainable If it raises a substantial question; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993(1) Cal HN 307: 1993 (1) Cal LJ 193.

(xiv) Interpretation of the contract involves a substantial question of law. It can be examined in second appeal; Smt. Vidya Wati through her LRs. v. Hans Raj through his L.Rs., AIR 1993 Del 187: 1993 Rajdhani LR 274.

(xv) Perverse finding recorded by the court below—Second appeal is maintainable; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993 (1) Cal HN 307: 1993 (1) Cal LJ 193.

(xvi) Factual finding based on no evidence—Second appeal is maintainable; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144: 1993 (1) Cal HN 307: 1993(1) Cal LJ 193.

(xvii) Finding of fact recorded by the first appellate court cannot be interfered with in second appeal unless perverse; Padmashree S.N. Swamy v. Smt. Gowramma, AIR 1993 Kant 208: 1992 (3) Kant LJ 244: 1993 (2) APLJ 18.

(xviii) Finding of fact cannot be questioned in second appeal; Ramaswamy Kalingaryar v. Mathayan Padayachi, AIR 1992 SC 115.

(xix) In absence of substantial question of law on current finding of facts it cannot be interfered with in second appeal; Kehar Singh v. Yash Pal, AIR 1990 SC 2212.

1. Subs, by Act No. 104 of 1976, sec. 37 for Section 100 (w.e.f. 1-2-1977).

100A. No further appeal in certain cases.

1[100A. No further appeal in certain cases.

Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge.]

1. Section 100A ins. by Act 104 of 1976, sec. 38 (w.e.f. 1-2-1977) and substituted by Act No. 46 of 1999, section 10 and now further has been substituted by Act No. 22 of 2002, section 4 (w.e.f. 1-7-2002).

101. Second appeal on no other grounds.

No second appeal shall lie except on the ground mentioned in section 100.

102. No second appeal in certain cases.

1[102. No second appeal in certain cases.

No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees”.]

1. Section 102 was substituted by Act No. 46 of 1999, section 11 and now further substituted by Act No. 22 of 2002, section 5 (w.e.f. 1-7-2002).

103. Power of High Court to determine issues of fact.

1[103. Power of High Court to determine issues of fact.

In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-

(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is referred to in section 100.]

1. Subs, by Act No. 104 of 1976, sec. 40 for section 103 (w.e.f. 1-2- 1977).

104. Orders from which appeal lies.

(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-

1[***]

2[(ff) an order under section 35A;]

3[(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules;

2[Provided that not appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]

(2) No appeal shall lie from any order passed in appeal under this section.

1. Clauses (a) to (f) omitted by Act 10 of 1940, sec. 49 and Sch. III.
2. Ins. by Act 9 of 1922, sec. 3.
3. Ins. by Act No. 104 of 1976, sec. 41 (w.e.f. 1-2-1977).

105. Other orders.

(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but. where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand 1[*****] from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

1. The words “made after the commencment of this Code” omitted by Act No. 104 of 1976, sec. 42 (w.e.f. 1-2-1977).

106. What Courts to hear appeals.

Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

107. Powers of Appellate Court.

(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

COMMENTS

Neither the issue framed nor evidence led in trial court in respect of mixed question of fact and law. New plea raised before the Supreme Court not permissible on the ground that the establishment of fact by evidence for decision is necessary; Vasantha Viswanathan v. V.K. Elayalwar, (2001) 8 SCC 133.

108. Procedure in appeals from appellate decrees and orders.

The provisions of this Part relating to appeals from original decree shall, so far as may be, apply to appeals-

(a) from appellate decrees, and

(b) from orders made under this Code or under any special or local law in which a different procedure is not provided.

109. When appeals lie to the Supreme Court.

1[109. When appeals lie to the Supreme Court.

Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies-

(i) that the case involves a substantial question of law of general importance; and

(ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.]

1. Subs. by Act 46 of 1973, sec. 2, for section 109 (w.e.f. 29-11-1973).

110. Value of subject matters.

Rep. by the Code of Civil Procedure (Amendment) Act, 1973 (49 of 1973), sec. 3.

111. Bar of certain appeals.

Rep. by the A.O. 1950.

111A. Appeals to Federal Court.

1[111A. Appeals to Federal Court.

Rep. by the Federal Court Act, 1941 (21 of 1941), sec. 2.]

1. Ins. by the A.O. 1937

112. Savings.

1[(1) Nothing contained in this Code shall be deemed-

(a) to affect the powers of the Supreme Court under Article 136 or any other provision of the Constitution, or

(b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.]

(2) Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction or to appeals from orders and decrees of Prize Courts.

1. Subs. by the A.O. 1950, for sub-section (1).

113. Reference to High Court

Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:

1[Provided that where the Court is satisfied that a case pending before it involve; a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which ii necessary for the disposal of the case, and is of opinion that such Act, Ordinance Regulation or provision is invalid or inoperative, but has not been so declared b; the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the opinion of the High Court.

Explanation.-In this section “Regulation” means any Regulation of the Bengal Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897 (10 of 1897) or in the General Clauses Act of a State.]

STATE AMENDMENTS

Andhra Pradesh-In the Explanation to section 113 after the words “any Regulation of the Bengal, Bombay or Madras Code” insert the words “or any Regulation of the Madras Code in force, in the State of Andhra as it existed immediately before the 1st Nov. 1956”.

[Vide Andhra Pradesh Adoption of Laws (Second Amendment) Orders, 1954 (w.e.f. 1-10-1953) and Andhra Pradesh A.L. (Amendment) Order 1957 (w.e.f. 1-11-1956).]

Tamil Nadu-In the Explanation to section 113 after the words “any Regulation of the Bengal, Bombay or Madras Code” insert the words “or any Regulation of the Madras Code in force in the territories specified in Second Schedule to the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959.”

[Vide Madras (Added Territories) Adaptation of Laws Order, 1961 (w.e.f. 1-4-1960).]

1. Added by Act 24 of 1951, sec. 2 (w.e.f. 1-4-1951).

114. Review.

Subject as aforesaid, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Court, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

Comments

(i) Subsequent event may be taken into consideration by the Court, while exercising review jurisdiction; Board of Control of Cricket in India v. Netaji Cricket Club, AIR 2005 SC 592.

(ii) The review petition was filed well within the time and since to review petition was not being decided by the High Court, the appellant filed the special leave petition against main judgment of High Court. Hence the Supreme Court overruled the contention that earlier special leave petition filed by appellant having been dismissed by the Supreme Court the second SLP was not maintainable being barred by the principle of res judicata; K. Rajamouli v. A.V.K.N. Swamy, AIR 2001 SC 2316.

115. Revision.

1[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

2[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.]

3[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.]

4[(3) A revision shall not operate as a stay of suit or other proceeding before the , Court except where such suit or other proceeding is stayed by the High Court.]

3[Explanation.-In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]

STATE AMENDMENTS

Madhya Pradesh-For Section 115 of the principal Act, the following Section substituted.

“115. Revision.-

The High Court may call for the record of any cases which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit;

Provided that the High Court shall not, under this section, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceedings except where:-

(a) the order, if it had been made in favour of the party applying for the revision, would have finally disposed of the suit or proceeding; or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.

Explanation.-In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.”

[Vide M.P. Act 4 of 1994, sec. 2 (w.e.f. 15-3-1994).]

Orissa.-In its application to the State of Orissa, for section 115, substitute the following:-

“115. Revision.-

The High Court, in eases arising out of original suits or other proceedings of the value exceeding one lakh rupees, and the District Court, in any other case, including a case arising out of an original suit or other proceedings instituted before the commencement of the Code of Civil Procedure (Orissa Amendment) Act, 1991, may call for the record of any case which has been decided by any Court subordinate to the High Court or the District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit;

Provided that in respect of cases arising out of original suits or other proceedings of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section:

Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order, including an order deciding an issue, made in the course of a suit or other proceedings, except where,-

(i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

Explanation.-In this section, the expression “any case which has been decided” includes any order deciding an issue in the course of a suit or other proceeding.”

Saving:-

The amendment made this Act shall not effect the validity, invalidity, effect or consequence of anything already done of suffered, or any jurisdiction already exercised, and any proceeding instituted or commenced in the High Court under section 115 of the Code of Civil Procedure, 5 of 1908, prior to the commencement of this Act shall, notwithstanding such amendment, continue to be heard and decided by such Court.”

[Vide Orissa Act 26 of 1991, sec. 2 (w.e.f. 7-11-1991).]

Uttar Pradesh.-In its application to the State of Uttar Pradesh, for section 115, substitute the following:-

“115 Revision.-

The High Court, in cases arising out of original suits or other proceedings of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may from time to time fix, by notification published in the Official Gazette including such suits or other proceedings instituted before the date of commencement of the U.P. Civil Laws (Amendment) Act, 1991, or as the case may be, the date of commencement of such notification and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any Court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law; or

(b) to have failed to exercise a jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit:

Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District Court, the High Court alone shall be competent to make an order under this section:

Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where,-

(i) the order, if so varied or reversed, would finally dispose of the suit or other proceeding; or

(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made:

Provided also that where a proceeding of the nature in which the District Court may call for the record and pass orders under this Section was pending immediately before the relevant date of commencement referred to above, in the High Court, such Court shall proceed to dispose of the same.

Explanation.-In this section, the expression “any case which has been decided” includes any order deciding an issue in the course of a suit or other proceeding.”

Transitory Provisions:-

Where a proceeding of the nature in which District Court may call for the record and pass orders under section 115 of the said Code as substituted by this Act was pending immediately before August 1, 1978.- (a) In the District Court, such Court shall proceed to dispose of the same as if the provisions of the same as if the provisions of this Act were in force at all material times;

(b) in the High Court, such Court shall proceed to dispose of the same as if this Act has not come into force.”

[Vide U.P. Acts 31 of 1978, Sections 3 and 5 (w.e.f. 1-8-1978) as amended by Uttar Pradesh Act 17 of 1991, sec. 7 (w.e.f. 15-1-1991).]

West Bengal-After Section 115 of the Code the following section 115A inserted:

“115A. District Court’s powers of revision-

(1) A District Court may exercise all or any of the power which may be exercised by the High Court under section 115.

(2) Where any proceedings by way of revision is commenced before a District Court in pursuance of the provision of sub-section (1), the provisions of section 115 shall, so for as may be, apply to such proceeding and references to the said section 60 the High Court shall be construed as reference to the District Court.

(3) Where any proceeding for revision is commenced before the District Court, the decision of the District Court on such proceeding shall be final and no further proceeding by way of revision shall be entertained by the High Court or any other Court.

(4) If any application for revision has been made by any party either to the High Court under section 115 or to the District Court under this section, no further application by the same party shall be entertained by the other of them.

(5) A Court of an Additional Judge shall have and may exercise all the powers of a District Court under this section in respect of any proceeding which may be transferred to it by or under any general or special order of the District Court”

[Vide West Bengal Act No. 15 of 1988, sec. 3 (w.e.f. 1-2-1989).]

COMMENTS

(i) Order allowing proposed amendment would not also come under clause (b) of section 115(1). Under revisional powers of High Court this cannot be interfered with by High Court. Prem Bakshi v. Dharam Dev, AIR 2002 SC 559.

(ii) The objections filed by the petitioners were under Order 21, rule 36 C.P.C. and the only remedy against it is revision under section 115 C.P.C. The Appellate Authority has rightly dismissed the appeal in limine as not maintainble; Naresh Sharma v. Ramesh Chand, AIR 2000 HP 6.

(iii) Revisional court ought to consider and discuss evidence on which finding was based by lower authorities. Mere statement by Revisional court that there was evidence to show that the bona fides of the landlord was proved is not sufficient; K. Urmila v. Ram Kumar Verma, AIR 1998 SC 1188.

(iv) Revision against erroneous finding with regard to admissibility of evidence was held to be competent; Kundan Mal v. Nand Kishore, AIR 1994 Raj 1.

(v) Revisional jurisdiction of the High Court—Validity of an order can be examined even if no reason has been specified for order except exercise of power under a rule; Charles Mantosh v. Dalhousie Institute, AIR 1993 Cal 232.

(vi) Revision against an order admitting documents after arguments were over is not maintainable; Hemendra Chaudhary v. M/s. Punjab National Bank, AIR 1993 All 49: 1993(21) All LR 218: 1993 All LJ 76.

(vii) Ex parte decree of ejectment—Revision against—Death of one of the co-landlords during pendency of the revision—No substitution—Held, revision would not abate; Ram Gopal Sharma v. Ist Additional District Judge, Meerut, AIR 1993 All 124: 1992 All CJ 1026.

(viii) Revisional court is not competent to reappreciate evidence; Padartha Amat v. Siba Sahu, AIR 1993 Ori 92.

(ix) Under section 115 of the Code, the High Court connot reappreciate the evidence and cannot set aside the concurrent findings of the Courts below by taking a different view of the evidence. The High Court is empowered only to interfare with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction; Masjid Kacha Tank, Nahan v. Tuffail Mohammed, AIR 1991 SC 455.

1. Sec. 115 re-numbered as sub-section (1) of that section by Act No. 104 of 1976, sec. 43 (w.e.f. 1-2-1977).
2. Ins. by Act 104 of 1976, sec. 43 (w.e.f. 1-2-1977) and subs. by Act 46 of 1999, sec. 12 (w.e.f. 1-7-2002).
3. Ins. by Act No. 104 of 1976, sec. 43 (w.e.f. 1-2-1977).
4. Ins. by Act No. 46 of 1999, section 12 (w.e.f. 1-7-2002).

116. Part to apply only to certain High Courts.

This Part applies only to High Courts 1[not being the Court of a Judicial Commissioner].

1. Subs. by Act 2 of 1951, sec. 14, for “CHARTERED HIGH COURTS” (w.e.f. 1-4-1951).

117. Application of Code to High Court.

Save as provided in this Part or in Part X or in rules, the provisions of this Court shall apply to such High Courts.

118. Execution of decree before ascertainment of costs.

Where any such High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith except as to so much thereof as relates to the costs;

and, as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.

119. Unauthorized persons not to address Court.

Nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him I so to do, or to interfere with the power of the High Court to make rules concerning I advocates, vakils and attorneys.

120. Provisions not applicable to High Court in original civil jurisdiction.

(1) The following provisions shall not apply to the High Court in the exercise of its I original civil jurisdiction, namely, sections 16,17 and 20.

1[***]

1. Sub-section (2) rep. by Act 3 of 1909, sec. 127 and Sch. III.

121. Effect of rules in First Schedule.

The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.

122. Power of certain High Courts to make rules.

1[High Courts 2[not being the Court of a Judicial Commissioner]] 3[***] may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence, and may be such rules annul, alter or add to all or any of the rules in the First Schedule.

1. Subs. A.O. 1950, for “Courts which are High Courts for the purposes of the Government of India Act, 1935”.
2. Subs. by the Adaptation of Laws (No. 2) Order, 1956, “for Part A States and Part B States”. Earlier the words “for Part A States and Part B States” were inserted by Act 2 of 1951, sec. 15 (w.e.f. 1-4-1951).
3. The words “and the Chief Court of Lower Burma”, rep. by Act 11 of 1923, sec. 3 and sch. II.

123. Constitution of Rule Committees in certain States.

(1) A committee to be called the Rule Committee, shall be constituted at

1[the town which is the usual place of sitting of each of the High Courts

2[***] referred to in section 122].

(2) Each such Committee shall consist of the following persons, namely-

(a) three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or 3[***] a Divisional Judge for three years,

4[(b) two legal practitioners enrolled in that Court]

5[(c)] a Judge of a Civil Court subordinate to the High Court 6[***]

5[7[* * *]]

(3) The members of each such Committee shall be appointed by the

8[High Court], which shall also nominate one of their number to be

President:

9[* * *]

(4) Each member of any such Committee shall hold office for such period as may be prescribed by the 8[High Court] in this behalf; and whenever any member retires, resigns, dies or ceases to reside in the State in which the Committee was constituted or becomes incapable of acting as a member of the Committee, the said 8[High Court] may appoint another person to be a member in his stead.

(5) There shall be a secretary to each such Committee who shall be appointed by the 9[High Court] and shall receive such remuneration as may be provided in this behalf 10[by the State Government].

STATE AMENDMENTS

Assam and Nagaland-Substitute the following for clause (a) sub-section (2) of section 123.

“(a) three judges of the High Court established at the town at which such committee is constituted, provided that the Chief Justice may appoint only two judges of the High Court on the Committee if the number of Judges of the High Court does not exceed three”

[C.P.C. (Assam Amendment) Act No. 8 of 1953, sec. 2, (w.e.f. 18-4-1953) and Nagaland Act 27 of 1962 (w.e.f. 1-12-1963).]

Tamil Nadu-In section 123 sub-section (2).

(a) “In clause (b) for the words ‘two legal practitioners’ substitute the words ‘three legal practitioners’.”

(b) “Omit the words ‘Madras’ in clause (d)”.

[Vide Tamil Nadu Act No. 15 of 1970, sec. 2 (w.e.f. 10-6-1970).]

1. Subs. by Act 13 of 1916, sec. 2 and Sch. for “each of towns of Calcutta, Madras, Bombay, Allahabad, Lahore and Rangoon”.
2. The words “and of the Chief Court”, Omitted by Act 11 of 1923, sec. 3 and Sch. II. These words were again ins. By Act 32 of 1925, and subsequently omitted by A.O. 1948.
3. The brackets and words “(in Burma)” rep. by Act 11 of 1923, sec. 3 and Sch. II.
4. Subs. by Act 2 of 1951 sec. 16, for clauses (b) and (c).
5. Clauses (d) and (e) re-lettered as clauses (c) and (d) respectively by Act 2 of 1951, sec. 16 (w.e.f. 1-4-1961).
6. The word “and” omitted by Act No. 38 of 1978, sec. 3 and Sch. II. (w.e.f. 26-11-1978).
7. Cl. (d) omitted by Act No. 38 of 1978, sec. 3 and Sch. II. (w.e.f. 26-11-1978).
8. Subs, by Act No. 104 of 1976, sec. 44, for “Chief Justice or Chief Judge” (w.e.f. 1-2-1977).
9. Proviso omitted by Act No. 104 of 1976, sec. 44 (w.e.f. 1-2-1977).
10. Subs. by A.O. 1937, for “by the G.G. in C. or by the L.G. as the case may be”.

124. Committee to report to High Court.

Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the rules in the First Schedule or to make new rules, and before making any rules under section 122 the High Court shall take such report into consideration.

125. Power of other High Courts to make rules.

High Courts, other than the Courts specified in section 122, may exercise the powers conferred by that section in such manner and subject to such conditions 1[as 2[the State Government] may determine]:

Provided that any such High Court may, after previous publication, make a rule extending within the local limits of its jurisdiction any rules which have been made by any other High Court.

1. Subs. by Act 38 of 1920, sec. 2 and Sch. 1, Pt. I, for “as the G.G. in C. may determine”.
2. Subs. by the A.O. 1937, for “in the case of the Court of the Judicial Commissioner of Coorg, the G.G. in C., and in other cases the L.G.”.

126. Rules to be subject to approval.

1[126. Rules to be subject to approval.

Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the State in which the Court whose procedure the rules regulate is situate or, if that Court is not situate in any State, to the previous approval of 2[Central Government].]

—————

1. Subs. by the A.O. 1937, for section 126.

2. Subs. by the A.O. 1950, for “Governor General”.

127. Publication of rules.

Rules so made and 1[approved] shall be published in the 2[Official Gazette] and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule.

1. Subs. by Act 24 of 1917, sec. 2 and Sch. 1, for “sanctioned”.
2. Subs. by the A.O. 1937, for “Gazette of India or in the local Official Gazette, as the case may be”. Strictly the substitution would read “Official Gazette or in the Official Gazette, as the case may be”, but the latter words have been omitted as being redundant.

128. Matters for which rules may provide.

(1) Such rules shall be not inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts.

(2) In particular, and without prejudice to the generality of the powers conferred by sub-section (1), such rules may provide for all or any of the following matters, namely :-

(a) the service of summons, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service;

(b) the maintenance and custody, while under attachment, of live-stock and other movable property, the fees payable for such maintenance and custody, the sale of such live-stock and property and the proceeds of such sale;

(c) procedure in suits by way of counterclaim and the valuation of such suits for the purposes of jurisdiction;

(d) procedure in garnishee and charging order either in addition to, or in substitution for, the attachment and sale of debts;

(e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not;

(f) summary procedure-

(i) in 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 a contract express or implied; or

on an enactment where the sum sought to be recovered is a 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 debt or a liquidated demand only; or

on trust; or

(ii) in suits for the recovery of immovable property, with or without claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for nonpayment of rent, or against persons claiming under such tenant;

(g) procedure by way of originating summons;

(h) consolidation of suits, appeals and other proceedings;

(i) delegation to any Registrar, Prothonotary or Master or other official of

the Court of any judicial, quasi-judicial and non-judicial duties; and

(j) all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of Civil Courts.

129. Power of High Court to make rules as to their original Civil Procedure.

Notwithstanding anything in this Code, any High Court 1[not being the Court of a Judicial Commissioner] may make such rules not inconsistent with the Letters Patent 2[or order] 3[or other law] establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.

Comments

Rules regulating procedure of High Court on its original side need not be consistent with provisions of the Code of Civil Procedure, 1908; Tridium India Telecom Ltd. v. Motorola Inc., AIR 2005 SC 514.

1. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “for a Part a State or a Part B State”.
2. Ins. By the A.O. 1950.
3. Ins. By Act 2 of 1951, sec. 17 (w.e.f. 1-4-1951).

130. Powers of other High Court to make rules as to matters other than procedure.

1[130. Powers of other High Court to make rules as to matters other than procedure.

A High Court 2[not being a High Court to which section 129 applies] may, with the previous approval of the State Government make with respect to any matter other than procedure any rule which a High Court 3[for a 4[***] State] might under 5[article 227 of the Constitution] make with respect to any such matter for any part of the territories under its jurisdiction which is not included within the limits of a presidency town.]

1. Subs. by the A.O. 1937, for section 130.2. Subs. by the A.O. 1950, for “not constituted by His Majesty by Letters Patent”.3. Subs. by the A.O. 1950, for “so constituted”.4. The word and letter “Part A” omitted by the Adaptation of Laws (No. 2) Order, 1956.5. Subs. by the A.O. 1950, for “section 224 of the Government of India Act, 1935”.

131. Publication of rules.

Rules made in accordance with section 129 or section 130 shall be published in the 1[Official Gazette] and shall from the date of publication or from such other date as may be specified have the force of law.

1. Subs. by the A.O. 1937, for “Gazette of India or in the local Official Gazette, as the case may be”. Strictly the substitution would read “Official Gazette or in the Official Gazette, as the case may be”, but the latter words have been omitted as being redundant..

132. Exemption of certain women from personal appearance.

(1) Women who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court.

(2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code.

133. Exemption of other persons.

1[(1) The following persons shall be entitled to exemption from personal appearance in Court, namely-

(i) the President of India;

(ii) the Vice-President of India;

(iii) the Speaker of the House of the People;

(iv) the Ministers of the Union;

(v) the Judges of the Supreme Court;

(vi) the Governors of States and the administrators of Union Territories;

(vii) the Speakers of the State Legislative Assemblies/

(viii) the Chairman of the State Legislative Councils;

(ix) the Ministers of States;

(x) the Judges of the High Courts; and

(xi) the persons to whom section 87B applies.]

2[***]

(3) Where any person 3[***] claims the privilege of such exemption, and it is consequently necessary to examine him by commission, he shall pay the costs of that commission, unless the party requiring his evidence pays such costs.

1. Subs. by Act No. 66 of 1956, sec. 12, for sub-section (1) (w.e.f. 1-1-1957).
2. Sub-section (2) omitted by Act No. 66 of 1956, sec. 12 (w.e.f. 1-1-1957).
3. The words “so exempted” omitted by Act 66 of 1956, sec. 12 (w.e.f. 1-1-1957).

134. Arrest other than in execution of decree.

The provisions of sections 55, 57 and 59 shall apply, so far as may be, to all persons arrested under this Code.

135. Exemption from arrest under civil process.

(1) No Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from his Court.

(2) Where any matter is pending before a tribunal having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their pleader, mukhtars, revenue-agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of Court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal.

(3) Nothing in sub-section (2) shall enable a judgment-debtor to claim exemption from arrest under an order for immediate execution or where such judgment-debtor attends to show cause why he should not be committed to person in execution of a decree.

135A. Exemption of members of legislative bodies from arrest and detention under civil process.

1[135A. Exemption of members of legislative bodies from arrest and detention under civil process.

2[(1) No person shall be liable to arrest or detention in prison under civil process-

(a) if he is a member of-

(i) either House of Parliament, or

(ii) the legislative Assembly or Legislative Council of a State, or

(iii) a Legislative Assembly of a Union territory,

during the continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council;

(b) if he is a member of any committee of-

(i) either House of Parliament, or

(ii) the Legislative Assembly of a State or Union territory, or

(iii) the Legislative Council of a State,

during the continuance of any meeting of such committee;

(c) if he is a member of-

(i) either House of Parliament, or

(ii) a Legislative Assembly or Legislative Council of a State having both such Houses,

during the continuance of a joint sitting, meeting, conference or joint committee of the Houses of Parliament or Houses of the State Legislature, as the case may be, and during the forty days before and after such meeting, sitting or conference.]

(2) A person released from detention under sub-section (1), shall, subject the provisions, of the said sub-section, be liable to re-arrest and to the further detention to which he would have been liable if he had not been released under the provisions of sub-section (1).]

1. Ins. by Act 23 of 1925, sec. 3.
2. Subs. by Act No. 104 of 1976, sec. 45 for sub-section (1) (w.e.f. 1-2-1977).

136. Procedure where person to be arrested or property to be attached is outside district.

(1) Where an application is made that any person shall be arrested or that any property shall be attached under any provision of this Code not relating to the execution of decrees, and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made, the Court may, in its discretion, issue a warrant of arrest or make an order of attachment, and send to the District

Court within the local limits of whose jurisdiction such person or property reside or is situate a copy of the warrant or order, together with the probable amount of the costs of the arrest or attachment.

(2) The District Court shall, on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by a Court subordinate to itself, and shall inform the Court which issued or made such warrant or order of the arrest or attachment.

(3) The Court making an arrest under this section shall send the person arrested to the Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former Court why he should not be sent to the later Court, or unless he furnishes sufficient security for his appearance before the later Court or for satisfying any decree that may be passed against him by that Court, in either of which cases the Court making the arrest shall release him.

(4) Where a person to be arrested or movable property to be attached under this section is within the local limits of the ordinary original civil ju

59. Stay of sale

Where before the claim was preferred or the objection was made, the property attached had already been advertised for sale, the Court may-

(a) if the property is movable, make an order postponing the sale pending the adjudication of the claim or objection, or

(b) if the property is immovable, make an order that, pending the adjudication of the claim or objection, the property shall not be sold, or, that pending such adjudication, the property may be sold but the sale shall not be confirmed, and any such order may be made subject to such terms and conditions as to security or otherwise as the Court thinks fit.]

[Rule 60 to 63-Omitted by Act No. 104 of 1976.]

HIGH COURT AMENDMENTS

Calcutta.-In Order XXI, after rule 63, insert the following rule, namely:-

“63A. When an attachment of movable property ceases, the Court may order the restoration of the attachment property to the person in whose possession it was before the attachment.” (w.e.f. 3-11-1933)

Gauhati.-Same as in Calcutta,

Patna.-In Order XXI, after rule 63, insert the following heading and rules, namely:-

“Garnishee Orders

63A. Where a debt {other than a debt secured by a mortgagor a debt recoverable only in Revenue Court or a debt the amount of which exceeds the pecuniary jurisdiction of the Court) has been attached under rule 46 and the debtor prohibited under clause (i) of sub-rule (1) of rule 46 (hereinafter called the garnishee) does not pay the amount of the debt into Court in accordance with rule 46, sub-rule (3), the Court, on the application of the decree-holder, may order a notice to issue calling upon the garnishee to appear before the Court and show cause why he should not pay into Court the debt due from him to the judgment-debtor. A copy of such notice shall, unless otherwise ordered by the Court, be served on the judgment-debtor.

63B. (1) If the garnishee does not pay into Court the amount of the debt due from him to judgment-debtor, and if he does not appear in answer to the notice issued under rule 63A, or does not dispute his liability to pay such debt to the judgment-debtor, then the Court may order the garnishee to comply with the terms of such notice, and on such order execution may issue against the garnishee as though such order were a decree against him.

(2) If the garnishee appears in answer to the notice issued under rule 63A, and disputes his liability to pay the debt attached, the Court, instead of making an order as aforesaid, 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.

63C. Whenever in any proceedings under the foregoing rules it is alleged by the garnishee that the debt attached belongs to some third person, or that any third person has a lien or charge upon or interest in it, the Court may order such third person to appear and state the nature and particulars of his claim, if any, upon such debt, and prove the same, if necessary.

63D. After hearing such third person and any other person who may subsequently to be ordered to appear, or in the case of such third or other person not appearing as ordered, the Court may pass such order as is provided in the foregoing rules, or make such other order as the Court shall think fit, upon such terms in all cases with respect to the lien charge or interest, if any, of such third or other person as shall seem just and reasonable.

63E. Payment made by, or levied by execution upon the garnishee in accordance with any order made under these rules shall be a valid discharge to him as against the judgment-debtor, and any other person ordered to appear under these rules, for the amount paid or levied although such order or the judgment may be set aside or reversed.

63F. The costs of any application for the attachment of a debt under the foregoing rules and of any proceedings arising from or incidental to such application shall be in the discretion of the Court. Costs awarded to the decree-holder shall, unless otherwise directed, be retained out of the money recovered by him under the garnishee order and in priority to the amount of his decree.

63G. Out of the amount recovered under the garnishee order the Court shall deduct a sum equal to the court-fee payable under the Indian Court-Fees Act on a plaint in a suit for recovery of the money and credit the same to the Government.

63H. (1) Where the liability of any garnishee has been tried and determined under these rules the order shall have the same force and be subject to the same condition as to appeals or otherwise as if were a decree.

(2) Orders not covered by clause (1) shall be appealable as orders made in execution.”

Sale genrally

64. Power to order property attached to be sold and proceeds to be paid to person entitled

Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may see necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.

HIGH COURT AMENDMENTS

Madras–In Order XXI, in rule 64, after the words “executing a decree may”, insert the words “after notice to the decree-holder and judgment-debtor”, (w.e.f. 10-4-1963)

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 64,-

(a) for the words “attached by it”, substitute the words “in respect of which it has made an order of attachment”.

(b) between the words “and” and “liable”, insert the words “which is” (w.e.f. 7-1-1936).

65. Sales by whom conducted and how made

Save as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madhya Pradesh.

Kerala.-Same as in Madhya Pradesh.

Madhya Pradesh.-In Order XXI, in rule 65, at the end, insert the following words:-

“Such officer or person shall be competent to declare the highest bidder as purchaser at the sale, provided that, where the sale is made in, or within the precincts of the Court-house, no such declaration shall be made without the leave of the Court.” (w.e.f. 16-9-1960)

66. Proclamation of sales by public auction

(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

(2) Such proclamation shall be draw up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible-

(a) the property to be sold 1[or, where a part of the property would be sufficient to satisfy the decree, such part];

(b) the revenue assessed upon the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;

(c) any incumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered; and

(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property:

1[Provided that where notice of the date for settling the terms of the proclamatioin has been given to the judgement-debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment-debtor unless the Court otherwise directs:

Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate if any, given, by either or both of the parties.]

(3) Every application for an order for sale under this rule shall be accompaniec by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.

(4) For the purpose of ascertaining the matters to be specified in the proclamation the Court may summon any person whom it thinks necessary to summon and ma> examine him in respect to any such matters and require him to produce any documeni in his possession or power relating thereto.

HIGH COURT AMENDMENTS

Andhra Pradesh and Kerala.-In Order XXI, in rule 66,-

(i) Same as in of Madras.

(ii) reletter clause (e) as clause (f) and insert to following clause, namely;-

“(e) the value of the property as stated (i) by the decree-holder and {ii} by the judgment-debtor;” (w.e.f. 13-10-1936)

(iii) in sub-rule (1), for the words “made”, substitute “drawn up.” (w.e.f. 12-11-1952)

Calcutta and Gauhati.-In Order XXI, in rule 66, in sub-rule (2), after clause (e), insert the following proviso, namely:-

“Provided that it shall not be necessary for the Court itself to give its own estimate of the value of the property but the proclamation shall include the estimate if any given by either or both the parties.”

Delhi and Himachal Pradesh.-In Order XXI, in rule 66, after sub-rule (2),-

(i) insert the following sub-rule, namely:-

“(3) Where the property to be sold is movable property which has been made over to a custodian under sub-clause (a) or (c) of clause (1) of rule 43 of this Order, the Court shall also issue a process by way of notice to the custodian directing him to produce the property at the place of sale, at a time to be specified therein with a warning that if he fails to comply with the directions, he shall be liable to action under section 145 of the Code of Civil Procedure.”

(ii) renumber sub-rules (3) and (4) as sub-rules (4) and (5) respectively.

Karnataka.-

In Order XXI, in rule 66, in sub-rule (2),-

(i) re-number clause (e) as clause (f) and insert the following clause, namely:-

“(e) The value of the property as stated by the decree-holder and the value of the property as stated by the judgment-debtor;”

(ii) in clause (d), omit the word “and”, (w.e.f. 30-3-1967)

Madhya Pradesh.-In Order XXI, in rule 66, in sub-rule (2), at the end, insert the words “including the decere-holder’s estimate of the approximate market price.” (w.e.f. 16-9-1960)

Madras.-In Order XXI, in rule 66,-

(i) in sub-rule (1), for the word “made”, substitute the words “drawn up”;

(ii) for sub-rule (2), substitute in the following sub-rule, namely:-

“(2) The term of such proclamation shall be settled in Court after notice to the decree-holder and judgment-debtor except in cases where notices have already been served under Order XXI, rule 64 and such proclamation shall state the time and place of sale and specify as accurately possible-

(a) the property to be sold,

(b) the revenue assessed upon the estate or part of the estate where the property to be sold is an interest in an estate or part of an estate paying revenue to the Government,

(c) any incumbrance to which the property is liable,

(d) the amount for the recovery of which the sale is ordered,

(e) the value of the property as stated (i) by the D.H. and (ii) by the J.D.,

(f) every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property.” (w.e.f. 5-9-1968)

Patna.-In Order XXI, in rule 66, in sub-rule (2),-

(i) omit the words “shall be drawn up after notice to the decree-holder and the judgment-debtor and”;

(ii) after clause (e), insert the following proviso, namely:-

“Provided that no estimate of the value of the property other then those, if any, made by the decree-holder and judgment-debtor respectively together with a statement that the Court does vouch for the accuracy of either shall be inserted in sate proclamation.”

Punjab, Haryana And Chandigarh.-In Order XXI, in rule 66,-

(i) in sub-rule (2), after clause (e), insert the following proviso, namely:-

“Provided that it shall not be necessary for the Court itself to give its own estimate -of the value of the property; but proclamation shall include the estimate, if any, given by either or both of the parties.”

(ii) after sub-rule (2), insert the following sub-rule, namely:-

“(3) Where the property to be sold is movable property which has been made over to a custodian under sub-clauses (a) or (c) of clause (1) of rule 43 of this Order, the Court shall also issue a process by way of notice to the custodian, directing him to produce the property at the place of sale, at a time to be specified therein with a warning that if he fails to comply with the directions, he shall be liable to action under section 145 of the C.P. Code.”

(iii) renumber sub-rules (3) and (4) as sub-rules (4) and (5) respectively.

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

67. Mode of making proclamation

(1) Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by rule 54, sub-rule (2).

(2) Where the Court so directs, such proclamation shall also be published in the Official Gazette or in a local newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale.

(3) Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot, unless proper notice of the sale cannot, in the opinion of the Court, otherwise be given.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka-In Order XXI, in rule 67, after sub-rule (3), insert the following sub-rule, namely:-

“(4) Unless the Court so directs it shall not be necessary to send a copy of the proclamation to the judgment-debtor.”

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Order XXI, in rule 67,-

(a) (i) for the Marginal heading, substitute the following marginal heading, namely:-

“Mode of publishing the proclamation of sale”;

(iii) in sub-rule (3), for the words “to make a separate proclamation for each lot”, substitute the words “to publish the proclamation of same separately for each lot”.

(b) after sub-rule (3), insert the following sub-rule, namely:-

“(4) Unless the Court directs it shall not be necessary to send a copy of the proclamation to the judgment-debtor.”

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 67, in sub-rule (1), at the end, omit the full stop and add the following words, namely:-

“and may, if the Court so directs, on the application of the decree-holder, be proclaimed and published simultaneously with the order of attachment.”

68. Time of sale

Save in the case of property of the kind described in the proviso to rule 43, no sale hereunder shall, without the consent in writing of the judgment-debtor, take place until after the expiration of at least 1[fifteen days] in the case of immovable property, and of at least 2[seven days] in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed on the court-house of the Judge ordering the sale.

1. Subs. by Act. No. 104 of 1976, Sec 72 for “thirty days” (w.e.f. 1-2-1977).

2. Subs. by Act. No. 104 of 1976, Sec. 72 for “fifteen days” (w.e.f. 1-2-1977).

69. Adjournment or stoppage of sale

(1) The Court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may in his discretion adjourn the sale, recording his reasons for such adjournment:

Provided that, where the sale is made in, or within the precincts of, the court-house, no such adjournment shall be made without the leave of the Court.

(2) Where a sale is adjourned under sub-rule (1) or a longer period than 1[thirty] days a fresh proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it.

(3) Every sale be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such debt and costs has been paid into the Court which ordered the sale.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 69, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Where a sale has been once adjourned under sub-rule (1), a fresh proclamation under rule 67 shall be made, under the judgment-debtor consents to wave it:

Provided that where the adjournment is for a period not longer than [thirty] days from the date originally fixed for sale, no fresh proclamation shall be necessary:

Provided also that the Court may dispense with the consent of any judgment-debtor who has failed to attend in answer to a notice issued under rule 66.”

Andhra Pradesh.-In Order XXI, in rule 67, in sub-rule (2), for the words “a fresh proclamation under rule 67 shall be made”, substitute the words “there shall be a fresh publication of the proclamation in the manner prescribed by rule 67”.

Bombay.-In Order XXI, in rule 67, in sub-rule (1), after the words “adjourn the sale”, insert the words “to specified day and hour”.

Karnataka.-Same as in Andhra Pradesh only adding the words “of sale” after “proclamation”, (w.e.f. 30-3-1967)

Kerala.-In Order XXI, in rule 67, in sub-rule (2), insert the following proviso, namely:-

“Provided that no such fresh proclamation shall be necessary in cases where the sale has been adjourned on account of the absence of Presiding Judge or on account of the day fixed for sale being declared a holiday.” (w.e.f. 10-3-1964)

Madras.-In Order XXI, in rule 67, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Where a sale is adjourned under sub-rule (1) for a longer period than thirty days, there shall be fresh publication of the proclamation in the manner prescribed by rule 67, unless the judgment-debtor consents to waive it, or the Court otherwise orders.” (w.e.f. 5-9-1968)

Orissa.-Same as in Patna.

Patna.-In Order XXI, in rule 67, in sub-rule (2), insert the following proviso, namely:-

“Provided that the Court may dispense with the consent of any judgment-debtor who has not appeared in the proceedings.”

1. Subs, by Act. No. 104 of 1976, Sec. 72 for “seven” (w.e.f. 1-2-1977).

70. [Saving of certain sales.]

Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956), s. 14 (w.e.f. 1-1-1957).

71. Defaulting purchaser answerable for loss on re-sale

Any deficiency of price which may happen on a re-sale by reason of the purchaser’s default, and all expenses attending such re-sale, shall be certified to the Court by the officer or other person holding the sale, and shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money.

72. Decree holder not to bid for or buy property without permission

(1) No holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property.

(2) Where decree-holder purchases, amount of decree may be taken as payment-Where a decree-holder purchases with such permission, the purchase-money and the amount due on the decree may, subject to the provisions of section 73, be set off against one another, and the Court executing the decree small enter up satisfaction of the decree in whole or in part accordingly.

(3) Where a decree-holder purchases, by himself or through another person, without such permission, the Court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the costs of such application and order, and any deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-holder.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 72,-

(a) omit sub-rules (1) and (3);

(b) re-number sub-rule (2) as sub-rule (1);

(c) in sub-rule (1) as so renumbered, for the words “with such permission”, substitute the words “the property sold”.

[Vide Notification No. 4084/35(a)-3(7), dated 24th July, 1926.]

Patna.-In Order XXI, in rule 72,- (a) for sub-rule (1), substitute the following sub-rule, namely:-

“(1) No holder of a decree in execution of which property is sold shall be ‘, precluded from bidding for or purchasing the property unless on express order to that effect is made by the Court.”

(b) in sub-rule (2), for the words “with such permission”, substitute the words “the property”.

(c) for sub-rule (3), substitute the following sub-rule, namely:-

“(3) Where notwithstanding an order made under sub-rule (1) a decree-holder purchases the property by himself or through another person the Court shall, on the application of the judgment-debtor or any other person whose interests are affected by the sale, by order set aside the sale; and the cost of such application and order and any deficiency of price which may happen on the re-sale and all expenses attending it shall be in the discretion of the Court.”

1[72A. Mortgagee not to bid at sale without the leave of the Court

(1) Notwithstanding anything contained in rule 72, a mortgagee of immovable property shall not bid for or purchase property sold in execution of a decree on the mortgage unless the Court grants him leave to bid for or purchase the property.

(2) If leave to bid is granted to such mortgagee, then the Court shall fix a reserve price as regards the mortgagee, and unless the Court otherwise directs, the reserve price shall be-

(a) not less than the amount then due for principal, interest and costs in respect of the mortgage if the property is sold in one lot; and

(b) in the case of any property sold in lots, not less than such sum as shall appear to the Court to be properly attributable to each lot in relation to the amount then due for principal, interest and costs on the mortgage.

(3) In other respects, the provisions of sub-rules (2) and (3) of rule 72 shall apply in relation to purchase by the decree-holder under that rule.]

1. Ins. by Act. No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

73. Restriction on bidding or purchase by officers.

No officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.

Sale of movable property

74. Sale of agricultural produce

(1) Where the property to be sold is agricultural produce, the sale shall be held,-

(a) if such produce is a growing crop, on or near the land on which such crop has grown, or

(b) if such produce has been cut or gathered, at or near the threshing floor or place for treading out grain or the like or fodder-stack on or in which it is deposited:

Provided that the Court may direct the sale to be held at the nearest place of public resort, if it is of opinion that the produce is thereby likely to sell to greater advantage.

(2) Where, on the produce being put up for sale,-

(a) a fair price, in the estimation of the person holding the sale, is not offered for it, and

(b) the owner of the produce or a person authorized to act in his behalf applies to have the sale postponed till next day or, if a market is held at the place of salej the next market-day,

the sale shall be postponed accordingly and shall be then completed, whatever price may be offered for the produce.

75. Special provisions relating to growing crops.

(1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, the day of the sale shall be so fixed as to admit of its being made ready for storing before the arrival of such day, and the sale shall not be held until the crop has been cut or gathered and is ready for storing.

(2) Where the crop from its nature does not admit of being stored, it may be sold before it is cut and gathered and the purchaser shall be entitled to enter on the land, and to do all that is necessary for the purpose of tending and cutting or gathering it.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 75, in sub-rule (2), after the words “being stored”, insert the words, “or, where it appears-‘to the Court that the crop [shall] be sold to greater advantage in an unripe state”.

Calcutta.-In Order XXI, in rule 75, in sub-rule (2),-

(a) after the words “Where the crop from its nature does not admit of being stored”, insert the words “or can be sold to greater advantage in an unripe state (e.g. as green wheat)”,

(b) between the words “tending” and “cutting” for the word “and” substitute the word “or”.

[Vide Notification No. 3615-G, dated 3rd February, 1933.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXI, for rule 75, substitute the following rule, namely:-

“75. (1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, unless the Court decides to proceed under the provisions of sub-rule (2) of this rule, the day of sale shall be so fixed as to admit of its being made ready for storing before the arrival of such day, and the sale shall not be held until the crop has been cut or gathered and is stored.

(2) Where the crop from its nature does not admit of being stored or can be sold to greater advantage in an unripe state, it may be sold before it is cut and gathered or in such unripe state, and the purchaser shall be entitled to enter on the land and do all that is necessary for the purpose of tending and cutting or gathering the said crop.” (30-3-1967)

Kerala.-Same as in Madras

[Vide Notification No. 81-3312/58, dated 7th April, 1959.]

Madhya Pradesh.-In Order XXI, in rule 75, in sub-rule (2), after the words “being stored”, insert the words “or, where it appears to the Court that the crop can be sold to greater advantage in an unripe state”, (w.e.f. 16-9-1960) Madras.-In Order XXI, in rule 75,-

(a) in sub-rule (1), after the words “yet been stored”, insert the words “unless the Court decides to proceed under the provisions of sub-rule (2) hereunder”,

(b) in sub-rule (2) after the words “being stored”, insert the words “or can be sold to greater advantage in an unripe state” and after the words “and gathered”, insert the words “or in such unripe state”, (w.e.f. 9-6-1959}

Patna.-In Order XXI, for rule 75, substitute the following rule, namely:-

“75. Where the property to be sold is a growing crop which can be sold to greater advantage in an unripe or unreaped state, it may be sold unreaped, and the purchaser shall be entitled to enter on the land to do all that is necessary for the purpose of tending and reaping it. In all other cases the day of sale shall be so fixed as to admit of the crop ripening and reaped before the sale.”

[Vide Notification No. 1-R, dated 7th January, 1936.]

Punjab.-In Order XXI, in rule 75, in sub-rule (2), after the word “stored”, insert the words “or can be sold to greater advantage in an unripe state”.

[Vide Notification No. 2212-G, dated 12th May, 1909 and Notification No. 123-R/XI-Y-14, dated 28th April, 1938.]

76. Negotiable instruments and shares in corporations

Where the property to be sold is a negotiable instrument or a share in a corporation, the Court may, instead of directing the sale to be made by public auction, authorize the sale of such instrument or share through a broker.

77. Sale by public auction

(1) Where movable property is sold by public auction the price of each lot shall be paid at the time of sale or as soon after as the officer or other person holding the sale directs, and in default of pay ment the property shall forthwith be re-sold.

(2) On payment of the purchase-money, the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute.

(3) Where the movable property to be sold is a share in goods belonging to the judgment-debtor and a co-owner, and two or more persons, of whom one is such co-owner, respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.

78. Irregularity not to vitiate sale, but any person injured may sue

No irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such recovery.

79. Delivery of movable property, debts and shares

(1) Where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser.

(2) Where the property sold is movable property in the possession of some person other than the judgment-debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser.

(3) Where the property sold is a debt not secured by a negotiable instrument, or is a share in a corporation, the delivery thereof shall be made by a written order of the Court prohibiting the creditor from receiving the debt or any interest thereon, and the debtor from making payment thereof to any person except the purchaser, of prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary or other proper officer of the corporation from permitting any such transfer or making any such payment to any person except the purchaser.

80. Transfer of negotiable instruments and shares.

(1) Where the execution of a document or the endorsement of the party in whose name a negotiable instrument or a share in a corporation is standing is required to transfer such negotiable instrument or share, the Judge or such officer as he may appoint in this behalf may execute such document or make such endorsement as may be necessary, and such execution or endorsement shall have the same effect as an execution or endorsement by the party.

(2) Such execution or endorsement may be in the following form, namely:-

A.B. by C.D. Judge of the Court of (or as the case may be), in a suit by E.F. against AS.

(3) Until the transfer of such negotiable instrument or share, the Court may, by order appoint some person to receive any interest or dividend due thereon and to sign a receipt for the same; and any receipt so signed shall be as valid and effectual for all purposes as if the same had been signed by the party himself.

ORDER XXI (81-106). EXECUTION OF DECREES AND ORDERS

ORDER XXI. EXECUTION OF DECREES AND ORDERS

Payment under decree

81. Vesting order in case of other property.

In the case of any movable property not hereinbefore provided for, the Court may make an order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly.

Sale of immovable property

82. What Courts may order sales.

Sales of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.

HIGH COURT AMENDMENT

Kerala.-In Order XXI, in rule 82, for the words “of Small Causes”, substitute the words “exercising small cause jurisdiction”. (w.e.f. 9-6-1959).

83. Postponement of sale to enable judgment-debtor to raise amount of decree.

(1)Where an order for the sale of immovable property has been made, if the judgment-debtor can satisfy the Court that there is reason to believe that the amount of the decree may be raised by the mortgage or lease or private sale of such property, or some part thereof, or of any other immovable property of the judgment-debtor, the Court may, on his application, postpone the sale of the property comprised in the order for sale on such terms and for such period as it thinks proper, to enable him to raise the amount.

(2) In such case the Court shall grant a certificate to the judgment-debtor authorizing him within a period to be mentioned therein, and notwithstanding anything contained in section 64, to make the proposed mortgage, lease or sale:

Provided that all moneys payable under such mortgage, lease or sale shall be paid, not to the judgment-debtor, but, save in so far as a decree-holder is entitled to set-off such money under the provisions of rule 72, into Court:

Provided also that not mortgage, lease or sale under this rule shall become absolute until it has been confirmed by the Court.

(3) Nothing in this rule shall be deemed to apply to a sale of property directed to be sold in execution of a decree for sale in enforcement of a mortgage of, or charge on, such property.

84. Deposit by purchaser and re-sale on default.

(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent, on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.

(2) Where the decree-holder is the purchaser and is entitled to set-off the purchase-money under rule 72, the Court may dispense with the requirements of this rule.

HIGH COURT AMENDMENT

Allahabad.-In Order XXI, in rule 84, in sub-rule (2), at the end, insert the following words, namely:-

“The court shall not dispense with the requirements of this rule in a case in which there is an application for rateable distribution of assets.”

[Vide Notification No. 16699-H, dated 17th January, 1953.]

85. Time for payment in full of purchase-money.

The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property:

Provided, that, in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 85,-

(i) after the words “purchase-money payable”, insert the words “together with the amount required for general stamp paper for certificate under rule 94”.

(ii) for the proviso, substitute the following provisos and Explanation, namely:-

“Provided that, in Respect of the purchase money, the purchaser shall have the advantage of any set-joff to which he may be entitled under rule 72:

Provided further that, if as a result of some bona fide mistake or miscalculation the amount deposited fails short of the full amount of the purchase-money, the Court may in its discretion allow the shortfall to be made up after fifteen days of the sale, and if the full amount of the purchase-money is deposited within such time as the Court may allow, the Court may condone the delay, if it considers it just and proper to do so.

Explanation.-When an amount is tendered in Court on any day after 1 p.m. but not accepted by the Court and is paid into Court on the next working day between 11 a.m. and 1 p.m., the payment shall be deemed to have been made on the day on which the tender is made.” (w.e.f. 1-10-1983)

Gujarat.-In Order XXI, after rule 85, insert the following rule, namely:-

“85A. Set-off where execution has been transferred to Collector.-In cases where execution has been transferred to the Collector, for the purposes of rules 84 and 85, the purchaser shall be deemed to be entitled to a set-off under rule 72 if he produces a certificate to that effect from the Court executing the decree.” (w.e.f. 17-8-1961)

Kerala.-In Order XXI, in rule 85,- ”

(i) after the words “purchase-money payable”, insert the words “together with the amount required for the general stamp paper for the certificate under rule 94”.

(ii) in the proviso, for the words “in calculating the amount to be so paid into Court”, substitute the words “in respect of the purchase-money”, (w.e.f. 1-1-1966)

Madhya Pradesh.-In Order XXI, in rule 85, insert the following Explanation, namely:-

“Explanation.-When an amount is tendered on any day after 1 p.m. but paid into Court on the next working day between 11 a.m. and 1 p.m., the payment shall be deemed to have been made on the day on which the tender is made.”

[Vide Notification No. 3409, dated 29th June, 1943.]

Madras.-In Order XXI, for rule 85, substitute the following rule, namely:-

“85. Time for payment in full of purchase-money and of stamp certificate of sale.-The full amount of purchase money payable and the general stamp for the certificate under rule 94 or the amount required for such stamp, shall be deposited into Court by the purchaser before the Court closes on the fifteenth day from the sale of the property:

Provided that in calculating the amount of purchase-money to be so deposited the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.”

[Vide P. Dis. No. 677, dated 25th November, 1944.]

86. Procedure in default of payment

In default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, 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.

87. Notification on re-sale

Every re-sale of immovable, property, in default of payment of the purchase-money within the period allowed for such payment, shall be made after the issue of fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 87, for the words “of the purchase-money”, substitute the words “of the amount mentioned in rule 85”.

[Vide Maharashtra Gazette, Ft. IV-C, p. 418, dated 15th September, 1983 (w.e.f. 1-10-1983).

Kerala.-Same as in Madras.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXI, in rule 87, for the words “payment of the purchase-money” substitute the words “the payment of the amounts mentioned in rule 85”.

[Vide GOMs No. 2922-Home, dated 28th October, 1936-HCP Dis No. 690 of 1936.]

88. Bid of co-sharer to have preference

Where the property sold is a share of undivided immovable property and two or more persons, or whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.

89. Application to set aside sale on deposit

(1) Where immovable property has been sold in execution of a degree, 1[any person claiming an interest in the property sold at the time of the sale or at the time of making the application, or acting for or in the interest of such person,] may apply to have the sale set aside on his deposition in Court,-

(a) for payment to the purchaser, a sum equal to five per cent of the purchase-money, and

(b) for payment, to the decree-holder, the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered less any amount which may, since the date of such proclamation of sale, have been received by the decree-holder.

(2) Where a person applies under rule 90 to set aside the sale of his immovable property, he shall not unless he withdraws his application, be entitled to make or prosecute an application under this rule.

(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale.

1. Subs, by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XXI, in rule 89, in sub-rule (1), insert the following proviso, namely:- “Provided that if the full amount required to be deposited in Court under this rule is not deposited at the time of making the application through some bona fide mistake or miscalculation and the short-fall is made up within one week from the date of the discovery of the mistake or calculation, the Court may condone the delay, if it considers it just and proper to do so.” (w.e.f. 1-11-1966)

Karnataka.-In Order XXI, in rule 89, in sub-rule (1),-

(i) in clause (b), for the words “such proclamation of sale, have been received by the decree-holder”, substitute the words “that proclamation of sale, have been paid or deposited towards satisfaction of the decree”. (ii) insert the proviso as in Madras.

Kerala.-In Order XXI, in rule 89, in sub-rule (1),-

(i) in clause (b), for the words “date of such proclamation”, substitute the words “date of the proclamation”;

(ii) insert the following provisos, namely:-

“Provided that, when several items of properties are sold separately, the sale of one or more of such items may be set aside on depositing in Court the amount of the purchase-money for the items the sale of which is sought to be set aside and a sum equal to five per cent, of that amount, and the balance, if any, of the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered still remains unrealised:

Provided further that where the immovable property sold is liable to discharge a portion of the decree debt, the payment under clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay.” (w.e.f. 9-6-1959)

Madras.-In Order XXI, in rule 89, in sub-rule (1),-

”(i) in clause (b) for the words “date of such proclamation”, substitute the words “date of that proclamation”,

(ii) insert the following proviso, namely:-

“Provided that where the immovable property sold is liable to discharge a portion of the decree debt, the payment under clause (b) of this sub-rule need not exceed such amount as under the decree the owner of the property sold is liable to pay”

[Vide GOMs 2084 Home, dated 2nd September, 1936-HCP Dis No. 691, dated 13th October, 1936].

1[90. Application to set aside sale on ground of irregularity or fraud

(1) Where any immovable property has been sold in execution of a decree, the decree-holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conduction it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishir or conducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

(3) No application to set aside a sale under this rule shall be entertained upon an ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up.

Explanation.-There mere absence of, or defect in, attachment of the property sold shall not, by itself, be a ground for setting aside a sale under this rule.]

1. Subs, by Act No. 104 of 1976, sec. 72 for rule 90 (w.e.f. 1-2-1977).

91. Application by purchaser to set aside sale on ground of judgment-debtor having no saleable interest.

The purchaser at any such sale in execution of decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.

HIGH COURT AMENDMENT

Gujarat-In Order XXI, after rule 91, insert the following rule, namely:-

“91A. Deposits how to be made., where execution is transferred to Collector.-Where the execution of a decree has been transferred to the Collector and the sale has been conducted by the Collector or by an officer subordinate to the Collector, an application under rule 89, 90 or 91, and in the case of an application under rule 89, the deposit required by that rule if made to the Collector or the officer to whom the decree is referred for execution in accordance with any rule framed by the State Government under section 70 of the Code, shall be deemed to have been made to or in the Court within the meaning of rules 89, 90 and 91.” (w.e.f. 17-8-1961)

92. Sale when to become absolute or be set aside.

(1) When no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute:

1[Provided that, where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the Court shall not confirm such sale until the final disposal of such claim or objection.]

(2) Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within 2[sixty days] from the date of sale, 3[or in cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale]:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

4[Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.

(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

5[(4) Where a third party challenges the judgment-debtor’s title by filing a suit against the auction-purchaser, the decree-holder and the judgment-debtor shall be necessary parties to the suit.

(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the decree-holder to refund the money to the auction-purchaser, and where such an order is passed the execution proceeding in which the sale had been held shall, unless the Court directs, be revived at the stage at which the sale was ordered.]

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, in rule 92, in sub-rule (1), after the words “the Court shall make”, insert the words “subject to the provisions of rule 58 (2)”.

[Vide Notification No. 4084/35(a}-3(7), dated 24th July, 1926.]

Andhra Pradesh.-Same as in Madras. Bombay.-In Order XXI, in rule 92,-

(i) in sub-rule (1), insert the following proviso, namely:-

“Provided that before confirming the sale the Court shall satisfy itself that the amount paid under rule 85 for the purchase of general stamp paper for the certificate under rule 94 is sufficient for the purpose in accordance with the rate in force at the time of confirmation and may, notwithstanding anything contained in rule 86, give the purchaser such times as it thinks fit for making good any deficiency.” (w.e.f. 1-10-1983) (ii) in sub-rule (2), insert words as in Madras by only substituting the words “has become deficient” for the words “has been diminished”.

[Vide Notification No. Bl-3312-58, dated 7th April, 1959.]

Kerala.-In Order XXI, in rule 92, in sub-rule (2),–

(i) for the words “thirty days”, substitute the words “sixty days”, (w.e.f. 9-2-1988)

[Ed.-This amendment relates to sub-rule (2) prior to its amendment made by the Central Act 22 of 2002, sec. 14 (w.e.f. 1-7-2002).]

(ii) after the words “from sale”, insert the words “and in case where the amount deposited has become deficient owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court”.

Madhya Pradesh.-In Order XXI, in rule 92, in sub-rule (1), after the words “the Court shall make”, insert the words “subject to the provisions of rule 58 (2)”.

[Vide Notification No. 3409, dated 29th June, 1943,]

Madras.-In Order XXI, in rule 92, in sub-rule (2), after the words “within thirty days from the date of sale” insert the following words:-

“and in case where the amount deposited has been diminished owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court.”

[Ed.-This amendment relates to sub-rule (2) prior to its amendments made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977} and Central Act 22 of 2002, sec. 14 (w.e.f. 1-7-2002).]

Patna.-Same as in Allahabad.

1. Added by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

2. Substituted for ‘thirty days’ by Act No. 22 of 2002, section 14 (w.e.f. 1-7-2002).

3. Subs, by Act No. 104 of 1976, sec. 72 for “the Court shall make an order setting aside the sale” (w.e.f. 1-2-1977).

4. Inserted by Act No. 22 of 2002, section 14 (w.e.f. 1 -7-2002).

5 Ins by Act No. 104 of 1976, sec. 72 (w.e..f. 1-2-1977).

93. Return of purchase-money in certain cases.

Where a sale of immovable property is set aside under rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.

94. Certificate to purchaser.

Where a sale of immovable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale of is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI,-

(i) renumber rule 94 as sub-rule (1) thereof;

(ii) after sub-rule (1) as so renumbered, insert following sub-rule, namely:-

“(2) Where immovable property is transferred otherwise than by sale, a document of transfer shall be granted by the Court specifying the property, the name of the person to whom it is transferred and the terms on which the transfer is made. Such document shall bear the date the day on which the transfer was ordered.” (w.e.f. 13-2-1960)

Bombay.-In Order XXI, in rule 94, between the words “sold” and “and”, insert a comma and the words “the amount of the purchase-money”, (w.e.f. 1-10-1983)

Madhya Pradesh.-Same as in Bombay, (w.e.f. 16-9-1960)

Orissa.-Same as in Patna.

Patna.-In Order XXI, for rule 94, substitute the following rule, namely:-

“94. Certificate to purchaser.-Where a sale of immovable property has become absolute the auction-purchaser shall file the sale certificate stamp within fifteen days from the date of confirmation of the sale, and the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be purchaser. Such certificate shall bear the date the day on which the sale becomes absolute. If the necessary stamp for sale certificate is not filed within the prescribed period the sale may, if the Court thinks fit, be set aside.”

95. Delivery of property in occupancy of judgment-debtor

Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment-debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order to delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.

HIGH COURT AMENDMENT

Madras.-In Order XXI,-

(i) renumber rule 95 as sub-rule (1) thereof;

(ii) after sub-rule (1) as to renumbered, insert the following sub-rule, namely:-

“(2) Where delivery of possession of a house is to be given and it is found to be locked’ orders of Court shall be taken for breaking open the lock and for delivery of possession of the same to the purchaser.

If it is found at the time of delivery, that there are movables, in the house to which the purchaser has no claim and the judgment-debtor is absent or, if present, does not immediately remove the same, the officer entrusted with the warrant for delivery shall make an inventory of the articles so found with their probable value in the presence of respectable persons on the spot, have the same attested by them and leave the movables in the custody of the purchaser after taking a bond from him for keeping the articles in custody pending orders of Court for disposal of the same.

The officer shall then make a report to the Court and forward therewith the attested inventory taken by him.

The Court shall thereupon issue a notice to the judgment-debtor requiring him to take delivery of the said movables within thirty days from the date of the notice, and in default will be sold in public auction at his risk and the proceeds applied for meeting all legitimate expenses of custody and sale and the balance, if any, will be refunded to the judgment-debtor:

Provided that, if movable articles referred to above are perishable, the officer shall sell them in public auction immediately and bring the proceeds into Court. The notice to the judgment-debtor shall in such case call upon him to receive the amount from Court within three months.” (w.e.f. 17-8-1966)

96. Delivery of property in occupancy of tenant

Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment-debtor has been transferred to the purchaser.

HIGH COURT AMENDMENT

Allahabad.-In Order XXI, after rule 96, insert the following rule namely:-

“96A. (1) The Court executing a decree may of its own motion or on application and on such terms as may appear to it just and reasonable in the circumstances of the case as are acceptable to the transferee, order that any property of the judgment-debtor attached by it, be transferred otherwise by sale in favour of the decree-holder or any other person not a party to the decree, for the purpose of satisfying the decree or portion thereof.

(2) The provisions of rules 64 to 103 of this order shall apply mutatis mutandis to a transfer other than sale made under this rule except that the Court may in its discretion dispense with the necessity of such transfer being made after issuing a proclamation or of the transfer being conducted by an officer of the Court by public auction or after issuing a proclamation.” (w.e.f. 13-2-1960)

Resistance to delivery of possession to decree- holder or purchaser

97. Resistance or obstruction to possession of immovable property.

(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

1[(2) Where ?ny application is made under sub-rule (1), the Court shall proceed to adjudicate upon ihe application in accordance with the provisions herein con-tained.]

1. Subs. by Act No. 104 of 1976, sec. 72 for sub-rule (2) (w.e.f. 1-2-1977).

1[98. Orders after adjudication.

(1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),-

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in-rule 98, for sub-rule (2), substitute the following sub-rule, namely:-

“(2) Where upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor on by some other person at his instigation or on his behalf, or by any transferee where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the Civil prison for a term which may extend to thirty days. The Court may also order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly to severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be for the delay and expenses caused to him in obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise at if it were a decree.” [Vide Maharashtra Government Gazette, Pt. IV, ka, p. 418, dated 15th September, 1983 (w.e.f. 1-10-1983).]

1. Subs,. by Act No. 104 of 1976, sec. 72 for rules 98 to 103 (w.e.f. 1-2-1977).

1[99. Dispossession by decree-holder or purchaser

(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property or, where such property has been sol in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) Where any such application is made, the Court shall proceed to adjudical upon the application in accordance with the provisions herein contained.]

1. Subs. by Act 104 of 1976, sec. 72 for rules 98 to 103 (w.e.f. 1-2-1977)

100. Order to be passed upon application complaining of dispossession

Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,-

(a) make an order allowing the application and directing that the applicant be pi into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in rule 100, insert the following proviso, namely:-

“Where it is determined that the application is made by person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under sub-rule (a) above.” (w.e.f. 1-10-1983)

101. Questions to be determined

All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, in rule 101, insert the following proviso, namely:-

“Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdiction the Court shall send the execution case to the Court of the District Judge to “Which the said Court is subordinate and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge, shall deal with it in the same manner as if the case had been originally instituted in that Court.” (w.e.f. 1-10-1983)

102. Rules not applicable to transferee pendent life

Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

Explanation-In this rule, “transfer” includes a transfer by operation of law.

HIGH COURT AMENDMENT

Bombay.-In Order XXI, omit rule 102.

103. Orders to be treated as decrees

Where any application has been adjudicated upon under rule 98 or rule 100 the other made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.]

1[104. Order under rule 101 or rule 103 to be subject to the result or pending suit

Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has sought to establish a right which he claims to the present possession of the property.

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

1[105. Hearing of application

(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.

(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex pane and pass such order as it thinks fit.

Explanation.-An application referred to in sub-rule (1) includes a claim or objection made under rule 58.]

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

1[106. Setting aside order passed ex parte, etc.

(1) The applicant, against whom an order is made under sub-rule (2) rule 105 or the opposite party against whom an order is passed exparte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order or such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.

(3) An application under sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex pane order, the notice was not duly served, within thirty days from the date when applicant had knowledge of the order.]

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXI, after rule 106, insert the following rules, namely:-

“106A. When the certificate prescribed by section 41 is received by the Court which sent the decree for execution, it shall cause the necessary details as to the result of execution to be entered in its register of civil suits before the papers are transmitted to the record room.

106B. Every attachment of movable property under rule 43, of the Negotiable Instruments under rule 51 and of immovable property under rule 54, shall be made through a Civil Court Amin, or bailiff, unless special reasons render it necessary that any other agency should be employed; in which case those reasons shall be stated in the handwriting of the presiding Judge himself in the order for attachment.

106C. When the property which it is sought to bring to sale is immovable property within the definition of the same contained in law for the time being in force relating to the registration of documents, the decree-holder shall file with his application for an order for sale a certificate from the Sub-Registrar within whose sub-district such property is situated, showing that the Sub-Registrar has searched his books Nos. I and II and their indices for twelve years preceding the mortgage or attachment as the case may be and stating the encumbrances, if any, which he has found on the property.

107. When an application is made for the sale of land or of any interest in land, the Court shall, before ordering sale thereof, call upon the parties to state whether such land is or is not ancestral land within the Notification No. 1887/1-238-10, dated 7th October, 1911, of Local Government, and shall fix a date for determining the said question.

On the day so fixed, or on any date to which the enquiry may have been adjourned, the Court may take such evidence, by affidavit or otherwise, as it may deem necessary, and may also call for a report from the Collector of the district as to whether such land or any portion thereof is ancestral land.

After considering the evidence and the report, if any, the Court shall determine whether such land, or any, and what part of it, is ancestral land.

The result of the enquiry shall be noted in an order made for the purpose by the presiding Judge in his own handwriting.

108. When the property which it is sought to bring to sale is revenue-paying or revenue-free land or any interest in such land, and the decree is not sent to the Collector for execution under section 68, the Court, before ordering sale, shall also call upon the Collector in whose district such property is situate to report whether the property is subject to any (and, if so, to what) outstanding claims on the part of Government.

109. The certificate of the Sub-Registrar and the report of the Collector shall be open to the inspection of the parties of their pleaders, free of charge, between the time of the receipt by the Court and the declaration of the result of the enquiry. No fees are payable in respect of the report by Collector.

110. The result of the enquiry under rule 66 shall be noted in an order made for the purpose by the presiding Judge in his own handwriting. The Court may, in its discretion, adjourn the enquiry, provided that the reasons for the adjournment are stated in writing, and that no more adjournments are made than are necessary for the purposes of the enquiry.

111. If after proclamation of the intended sale has been made any matter is brought to the notice ef the Court which it considers material for purchasers to know, the Court shall cause the same to be notified to intending purchasers when the property is put up for sale.

112. The costs of the proceedings under rules 66,106 and 108 shall be paid in the first instance by the decree-holder; but they shall be charged as part of the costs of the execution, unless the Court, for reasons to be specified in writing, shall consider that they shall either wholly or in part be omitted therefrom.

113. Whenever any Civil Court has sold, in execution of a decree or other order, any house or other building situated within the limits of a military cantonment or station, it shall, as soon as the sale has been confirmed, forward to the commanding officer of such cantonment or station for his information and for record in the Brigade or other proper office, a written notice that such sale has taken place; and such notice shall contain full particulars of the property sold and the name and address of the purchaser.

114. Whenever guns or other arms in respect of which licences have to be taken by purchasers under the Arms Act, 1959 are sold by public auction in execution of decree by order of a Civil Court, the Court directing the State shall give due notice to the Magistrate of the district of the names and addresses of the purchasers, and of the time and place of the intended delivery to the purchasers of such arms, so that proper steps may be taken by the police to enforce the requirements of the Arms Act.

115. When an application is made for the attachment of live-stock or other movable property, the decree-holder shall pay into Court in cash such sum as will cover the costs of the maintenance and custody of the property for fifteen days. If within three clear days before the expiry of any such period of fifteen days the amount of such costs for such further period as the Court may direct be not paid into Court, the Court, on receiving a report thereof from the proper officer, may issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

116. Live-stock which has been attached in execution of a decree shall ordinarily be left at the place where the attachment is made either in custody of the judgment-debtor on his furnishing security, or in that of some land-holder or other respectable person willing to undertake the responsibility of its custody and to produce it when required by the Court.

117. If the custody of live-stock cannot be provided for in the manner described in the last preceding rule, the animals attached shall be removed to the nearest pound established under the Cattle Trespass Act, 1871 (1 of 1871), and committed to the custody of the pound-keeper, who shall enter in a register-

(a) the number and description of the animals;

(b) the day and hour on and at which they were committed to his custody;

(c) the name of the attaching officer or his subordinate by whom they were committed to his custody; and shall give such attaching officer or subordinate a copy of the entry.

118. For every animal committed to the custody of the pound-keeper as aforesaid, a charge shall be levied as rent for the use of the pound for each fifteen or part of fifteen days during which such custody continues; according to the scale prescribed under section 12 of Act No. I of 1871.

And the sums so levied shall be credited to the Municipal Board or the Zilla Parishad or the Notified Area, as the case may be, under whose jurisdiction the pound is.

119. The pound-keeper shall take charge of, feed and water, animals attached and committed as aforesaid until they are withdrawn from his custody as hereinafter provided a,nd he shall be entitled to be paid for their maintenance at such rates as may be, from time to time, prescribed under proper authority. Such rates shall, for animals specified in the section mentioned in the last preceding rule, not exceed the rates for the time being fixed under section 5 of the same Act. In any case, for special reasons to be recorded in writing, the Court may require payment to be made for maintenance at higher rates than those prescribed.

120. The charges herein authorized for the maintenance of live-stock shall be paid to the pound-keeper by the attaching officer for the first fifteen days at the time the animals are committed to his custody, and thereafter for such further period as the Court may direct, at the commencement of such period. Payments for such maintenance so made in excess of the sum due for the number of days during which the animals may be in the custody of he pound-keeper shall be refunded by him to the attaching of officer.

121. Animals attached and committed as aforesaid shall not be released from custody by the pound-keeper except on the written order of the Court, or of the attaching officer, or of the officer appointed to conduct the sale; the person receiving the animals, on their being so released, shall sign a receipt for them in the register mentioned in rule 117.

122. For the safe custody of movable property other than live-stock while under attachment, the attaching officer shall, subject to approval by the Court, make such arrangements as may be most convenient and economical.

123. With the permission of the Court the attaching officer may place one or more person in special charge of such property.

124. The fee for the services of each such person shall be payable in the manner prescribed in rule 115. It shall not be less than twenty-five naya paise, and shall ordinarily not be more than thirty-seven naya paise per diem. The Court may, at its discretion, allow a higher fee; but if it does so, it shall state in writing its reasons for allowing an exceptional rate.

125. When the services of such person are no longer required the attaching officer shall give him a certificate on a counterfoil form of the number of days he has served and of the amount due to him; and on the presentation of such certificate to the Court which ordered the attachment, the amount shall be paid to him in the presence of the Presiding Judge:

Provided that, where the amount does not exceed Rs. 5, it may be paid to the Sahna by money order on requisition by the Amin, and the presentation of the certificate may be dispensed with.

126. When in consequence of an order of attachment being withdrawn or for some other reason, the person has not been employed or has remained in charge of the property for a shorter time than that for which payment has been made in respect of his services, the fee paid shall be refunded in whole or in part, as the case may be.

127. Fees paid into Court under the foregoing rules shall be entered in the Register of Petty Receipts and Repayments.

128. When any sum levied under rule 118 is remitted as the Treasury, it shall be accompanied by an order in triplicate (in the form given as Form No. 9 of the Municipal Account Code), of which one part will be forwarded by the Treasury Officials to the Zilla Parishad or Municipal Board, as the case may be. A note’that the same has been paid into the Treasury as rent for the use of the pound, will be recorded on the extract from the pass book.

129. The cost of preparing attached property for sale, or of conveying it to the place where it is to be k^pt or sold, shall be payable by the decree-holder to the attaching officer. In the event of the decree-holder failing to provide the necessary funds, the attaching officer shall report his default to the Court, and the Court may thereupon issue an order for the withdrawal of the attachment and direct by whom the costs of the attachment are to be paid.

130. Nothing in these rules shall be deemed to prevent the Court from issuing and serving on the judgment-debtor simultaneously the notice required by Order XXI, rules 22, 66 and 107.

131. The Court may, in the case of any debt due to the judgment-debtor (other than a debt secured by a mortgage or a charge or a negotiable instrument, or a debt recoverable only in a Revenue Court), or any movable property not in the possession of the judgment-debtor, which has been attached under rule 46 of this Order issue a notice to any person (hereinafter called the garnishee) liable to pay such debt or to deliver or account for such movable property, calling upon him to appear before the Court 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. (As amended on 29-3-1949).

132. If the garnishee does not forthwith or within such time as the Court may allow, 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 debt or deliver such movable property, of if he does not appear in answer to the notice then the Court may order the garnishee to comply with the terms of such notice and on such order execution may issue as though such order were a decree against him.

133. If the garnishee disputes Ms liability the Court, instead of making such order, may order that any issue of question necessary for determining his liability be tried as though if were an issue in a suit; and upon the determination of such issue shall pass such order as shall be just. (As amended on 29-3-1949).

134. Whenever in any proceedings under these rules it is alleged, or appears to the Court to be probable that the debt or property attached belongs to some third person, or that any third person has a Hen or charge upon, or an interest in it, the Court 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. (As amended on 29-3-1949).

135. After hearing such third person, and any other person who may subsequently be ordered to appear, or in the use of such third or other person not appearing when ordered, the Court may pass such order as is hereinbefore provided or make such other order as it shall think fit, upon such terms in all cases with respect to the lien, charge or interest, if any, of such third or other person as to such Court shall seem just and reasonable.

136. Payment or delivery made by the garnishee whether in execution of an order under these rules or otherwise shall be a valid discharge to him as against the judgment-debtor or any other person ordered to appear as aforesaid, for the amount paid, delivered or realised although such order of the judgment may be set aside or reversed.

137. Debts owing from a firm carrying on business within the jurisdiction of the Court may be attached under these rules, although one or more members 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 member of the firm within the jurisdiction is served with the garnishee order. An appearance by any member pursuant to an order shall be a sufficient appearance by the firm.

138. The costs of any application under these rules and of the proceedings arising therefrom or incidental thereto, or any order made thereon, shall be in the discretion of the Court.

139. (1) Where the liability of any garnishee has been tried and determined under these rules the order shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(2) Orders not covered by clause (1) shall be appealable as orders made in execution.

Illustration.-An application for a garnishee order is dismissed either on the ground that the debt is secured by a charge or that there is no prima facie evidence of debt due. This order is appealable as an order in execution. 140. All the rules in this Court relating to service upon either plaintiffs or defendants at the address filed or subsequently altered under Order VII or Order VIII shall apply to all proceedings taken under Order XXI or section 47.

The following form shall be used under the provisions of rule 131 of Order XXI: Suit No…………………………of……..

………………………………………………………………………………………….Plaintiff,

Versus

……………………………………………………………………………….. ..Defendant

Whereas it is alleged that a debt of Rs………………. is due from you to the judgment-debtor.

Or that you are liable to deliver to the above named judgment-debtor the property set forth in the Schedule hereto attached; Take notice that you are hereby required on or before the…………….day of…..19…./20….. to pay into this Court the said sum of Rs……………or………… to deliver account to the Amin of this Court for the moveable property detailed in the attached schedule or otherwise to appear in person or by advocate, vakil or authorised agent in this Court at 10.30 in the forenoon of the day aforesaid and show cause to the contrary in default whereon an order for the payment of the said sum, or for the delivery of the said property may be passed against you. Dated this…………day of………. of……l9…….:../20……….

Munsiff/Sub-Judge……………

at…………………”

Andhra Pradesh.-In Order XXI, insert rule 106 which is same as in Madras with the addition of the following words at the end:-

“For this purpose, the Court may make an order including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.”

[Vide Notification No. P Dis 229/56, dated 2nd April, 1959].

Madras.-In Order XXI, after rule 105, insert the following rule, namely:-

“106. Where and in so far as a decree or order is varied or reversed and the case does not fall within the scope of section 47 or section 144, the Court of first instance shall, on the application of any party affected by the decree or order, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order on such part thereof as has been varied or reversed.” (w.e.f. 19-5-1954)

[Ed.-This amendment relates to rule 106 prior to its amendment made by the Central Act 104 of 1976, sec. 72 (w.e.f. 1-2-1977).]

Calcutta.-After Order XXI, insert the following Order, namely:-

“ORDER XXIA”

1. Every person applying to a Civil Court to attach movable property shall, in addition to the process-fee, deposit such reasonable sum as the Court may direct if it thinks necessary, for the cost of its removal to the Court-house, for its custody, and, if such property is live-stock, for its maintenance according to the rates prescribed in rule 2 of this Order. If the deposit when ordered, be not made, the attachment shall not issue. The Court may, from time to time, order the deposit of such further fees as may be necessary. In default of due payment the property shall be released from attachment.

[See Rule 150, Civil Rules and Orders, (1959) Calcutta and Order XXIA, rule 16.]

2. The following daily rates shall be chargeable for the custody and maintenance of live-stock under attachment:-

Goat and pigAnnas 2 to annas 4.
SheepAnnas 2 to annas 3.
Cow and bullockAnnas 6 to annas 10.
CalfAnnas 3 to annas 6.
BuffaloAnnas 8 to annas 12.
HorseAnnas 8 to annas 12.
AssAnnas 3 to annas 5.
PoultryAnnas 2 to annas 3 pies 6.

Explanation.-Although the rates indicated above are regarded as reasonable, the Courts shall consider individual circumstances and the local conditions and permit deposit at reduced rates where the actual expenses are likely to fall short of the minima or maxima. If any specimen of special value in any of the above classes is seized a special rate may be fixed by the Court. If any animal not specified is attached, the Court may fix the cost as a special case.

3. When the property attached consists of agricultural implements or other articles which cannot conveniently be removed and the attaching officer does not act under the proviso to rule 43, Order XXI, he may, unless the Court has otherwise directed, leave it in the village or place where it has been attached-

1[(a) in the charge of the decree-holder or his agent, or of the judgment-debtor, or of some other person, provided that the decree-holder or his agent or the judgment-debtor or other person, enters into bond in Form No. ISA of

Appendix E to this Schedule, with one or more sureties, to produce the attached property when called for and to be liable for any loss which the owner of the property attached may suffer due to wilful negligence of the bounden, or]

(b) in the charge of an officer of the Court, if a suitable place for its safe custody be provided and the remuneration of the officer for a period of fifteen days paid in advance.

1. Rule 3(a) subs, by Notification No. 4440-G, dated 29th May, 1941.

4. If attached property (other than live-stock) is not sold, under the proviso to rule 43, Order 21, or retained in the village or place where it is attached, it shall be brought to the Court-house at the decree-holder’s expense and delivered to the proper officer of the Court. In the event of the decree-holder failing to make his own arrangement for the removal of the property with safety, or paying the cost thereof in advance to the attaching officer, then, unless such payment has previously been made into Court, the attachment shall at once be deemed to be withdrawn and the property shall be made over to the person in whose possession it was before attachment.

5. When live-stock is attached it shall not, without the special order of the Court, be brought to the Court or its compound or vicinity, but shall be left at the village or place where it was attached in the manner and on the conditions set forth in rule 3 of this Order:

Provided that live-stock shall not be left in the charge of any person under clause (a) of the said rule unless he enters into a bond for the proper care and maintenance thereof as well as for its production when called for and that it shall not be left in charge of an officer of the Court under clause {b) of the said rule unless in addition to the requirements of the said clause provision be made for its care and maintenance.

6. When for any reason the attaching officer shall find it impossible to obtain compliance with the requirements of the preceding rule so as to entitle him to leave the attached live-stock in the village or place where it was attached and no order has been made by the Court for its removal to the Court, the attaching office shall not proceed with the attachment and no attachment shall be deemed to have been effected.

7. Whenever it shall appear to the Court that live-stock under attachment are not being properly tended or maintained the Court shall make such orders as are necessary for their care and maintenance and may if necessary direct the attachment to cease, and the leave-stock to be returned to the person in whose possession they were when attached. The Court may order the decree-holder to pay any expenses so incurred in providing for the care and maintenance of the live-stock, and may direct that any sum so paid be refunded to the decree-holder by any their party to the proceedings.

8. If under a special order of the Court live-stock is to be conveyed to the Court, the decree-holder shall make his own arrangement for such removal, and if he fails to do so the attachment shall be withdrawn and the property made over to the person in whose possession it was before attachment.

9. Nothing in these rules shall prevent the judgment-debtor or any person claiming to be interested in attached live-stock from making such arrangements for feeding, watering, and tending the same as may not be inconsistent with its safe custody, or contrary to an order of the Court.

10. The Court may direct that any sums which have been legitimately expended by the attaching officer or are payable to him, if not duly deposited or paid, be recovered from the sale-proceeds of the attached property, if sold, or be paid by the person declared entitled to delivery before he receives the same. The Court may also order that any sums deposited or paid under these rules be recovered as costs of the attachment from any party to the proceedings.

11. In the event of custodian of attached property failing, after due notice, to produce such property at the place named to the officer deputed for the purpose, or to restore it to its owner if so ordered or failing in the case of live-stock to maintain and take proper care thereof, he shall be liable to be proceeded against for the enforcement of his bond in the execution proceedings.

12. When property other than live-stock is brought to the Court, it shall immediately be made over to the Nazir, who shall keep it on his sole responsibility in such place as may be approved by the Court. If the property cannot from its nature or bulk be conveniently stored, or kept on the Court premises or in the personal custody of the Nazir, he may, subject to the approval of the Court, make such arrangements for its safe custody under his own supervision as may be most convenient and economical. If any premises are to be hired and persons are to be engaged for watching the property, the Court shall fix the charges for the premises and the remuneration to be allowed to the persons (not being officers of the Court) in whose custody the property is kept. All such costs shall be paid into Court by the decree-holder in advance for such period as (he Court may from time to time direct.

13. When attached live-stock is brought to Court under special order as aforesaid it shall be immediately made over to the Nazir, who shall be responsible for its due preservation and safe custody until he delivers it up under the orders of the Court.

14. If there be a pound maintained by Government or local authority in or near the place where the Court is held, the Nazir shall, subject to the approval of the Court, be at liberty to place in it such live-stock as can be properly kept there, in which case the pound-keeper will be responsible for the property to the Nazir and shall receive from the Nazir the same rates for accommodation and maintenance thereof as are paid in respect of impounded cattle of the same description.

15. If there be no pound available, or, if in the opinion of the Court, it be inconvenient to lodge the attached live-stock in the pound, the Nazir may keep them in his own premises, or he may entrust them to any person selected by himself and approved by the Court.

16. All costs for the keeping and maintenance of the live-stock shall be paid into Court by the decree-holder in advance for not less than fifteen days at a time as often as the Court may from time to time direct. In the event of failure to pay the costs within the time fixed by the Court, the attachment shall be withdrawn and the live-stock shall be at the disposal of the person in whose possession it was at the time of attachment.

17. So much of any sum deposited or paid into Court under these rules as may not be expended shall be refunded to the depositor.”

[Vide Notification No. 25585-G, dated 3rd November, 1933.]

Gauhati.-Same as in Calcutta.

ORDER XXII. DEATH, MARRIAGE AND INSOLVENCY OR PARTIES

ORDER XXII. DEATH, MARRIAGE AND INSOLVENCY OR PARTIES

1. No abatement by party’s death if right to sue survives

The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

HIGH COURT AMENDMENT

Allahabad.-In Order XXII, in rule 1, at the end, insert the words “or to proceedings in the original Court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit”.

2. Procedure where one of several plaintiffs or defendants dies and right to sue survives

Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

HIGH COURT AMENDMENT

Punjab and Haryana–In Order XXII, after rule 2, insert the following rules, namely:-

“2A. Every advocate appearing in the case who becomes aware of the death of a party to the litigation (where he appeared for him or not) must give intimation about the death of that party to the Court and to the person who is dominus litis.

2B. The duty to bring on record the legal representatives of the deceased-defendant shall be of the heirs of the deceased and not of the person who is dominus litis.” [Vide Punjab Government Gazette, Pt. III (L.S.), p. 304, dated 11th April, 1975 and Haryana Government Gazette, Pt. III (L.S.), p. 190, dated 25th March, 1975.]

3. Procedure in case of death of one of several plaintiffs or of sole plaintiff

(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

4. Procedure in case of death of one of several defendants or of sole defendant

(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

1[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant not withstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where-

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.]

1. Ins. by Act No. 104 of 1976, sec. 73 (w.e.f. 1-2-1977).

1[4A. Procedure where there is no legal representative

(1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.

(2) Before making an order under this rule, the Court-

(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and

(b) shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.]

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

5. Determination of question as to legal representative.

Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:

1[Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

6. No abatement by reason of death after hearing

Nothwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.

7. Suit not abated by marriage of female party

(1) The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with to judgment, and, where the decree is against a female defendant, it may be executed against her alone.

(2) Where the husband is by law liable for the debts of his wife, the decree may, with the permission of the Court, be executed against the husband also; and in case of judgment for the wife, execution of the decree may, with such permission, be issued upon the application of the husband, where the husband is by law entitled to the subject matter of the decree.

8. When plaintiffs insolvency bars suit

(1) The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct.

(2) Procedure where assignee fails to continue suit, or give security-Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiff s insolvency, and the Court may make an order dismissing the suit and awarding to the defendant the costs which he has insured in defending the same to be proved as a debt against the plaintiffs estate.

9. Effect of abatement or dismissal

(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of section 5 of the 1[Indian Limitation Act, 1877 (15 of 1877)] shall apply to applications under sub-rule (2).

2[Explanation-Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order]

1. See now the Limitation Act, 1963 (36 of 1963), Ss. 4 and 5.

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

10. Procedure in case of assignment before final order in suit

(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

1[10A. Duty of pleader to communicate to Court death of a party.

Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall there upon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.]

1. Ins. by Act No. 104 of 1976, sec. 73 (w.e.f. 1-2-1977).

11. Application of Order to appeals.

In the application of this Order to appeals, so far as may be, the word “plaintiff shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Calcutta.-In Order XXII, in rule 11, insert the following proviso, namely:-

“Provided always that where an Appellate Court has made an order dispensing with service of notice of appeal upon legal representatives of any person deceased under Order XLI, rule 14(3), the appeal shall not be deemed to abate as against such party and the decree made on appeal shall be binding on the estate or the interest of such party.”

[Vide Notification No. 10428-G, dated 25th July, 1928.]

Gauhati.-Same as in Calcutta.

Kerala.-In Order XXII, after rule 11, insert the following rule, namely:-

“11A. Entry on the record of the name of the representative of a deceased appellant or respondent in a matter pending before the High Court.-The entry on the record on the name of the representative of a deceased appellant or respondent in a matter pending before the High Court in its appellate jurisdiction, except in case, under appeal to the Supreme Court, may be performed by the Registrar, provided that contested applications and applications presented out of time shall be posted before a judge for disposal.” (w.e.f. 9-6-1959).

Madras.-In Order XXII, after rule 11, insert the following rule, namely:-

“11A. The entry on the record of the name of the representative of a deceased appellant or respondent in a matter pending before the High Court in its appellate jurisdiction, except in cases under appeal to the Supreme Court, shall be deemed to be a quasi judicial act within the meaning of section 128 (2) (i) of the Code of Civil Procedure and may be performed by the Registrar provided that contested applications and application presented out of time shall be posted before a Judge for disposal.”

12. Application of Order to proceedings.

Nothing in rules 3, 4 and 8 shall apply to proceedings in executive of a decree or order.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXII, in rule 12 at the end, insert the words “or to proceedings in the original Court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit”.

[Vide Notification No. 58435 (a)-(2), dated 7th February, 1931.]

Orissa.-In Order XXII, in rule 12, at the end, insert the words “or to proceedings in the original Court taking after the passing of the preliminary decree where having regard to the nature of the suit, a final decree is required to be passed”.

[Vide Notification No. 24-X-7-52, dated 30th March, 1954.]

ORDER XXIII. WITHDRAWAL AND ADJUSTMENT OF SUITS

1[1. Withdrawal of suit or abandonment of part of claim

(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the Court is satisfied,-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff-

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),

he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]

1. Subs, by Act No. 104 of 1976 for rule 1 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Karnataka.-In Order XXIII, in rule 1, after sub-rule (4), insert the following sub-rule, namely:-

“(5) Where the plaintiff in a suit instituted or conducted under the provisions of rule 8 of Order 1 of this Code or all plaintiffs therein if there are more plaintiffs than one, apply for the permission to withdraw the suit, notice of such application shall be given in the manner prescribed by sub-rule (3) of Order 1 of this Code for issue of notice of institution of the suit, and the cost of such notice shall be borne by the plaintiff or the plaintiffs, as the case may be. If upon such application being made a defendant in the same suit having the same interest as that of the plaintiffs applies for permission to be transposed a§ plaintiff to conduct the suit further, he shall be permitted to do so and the plaintiffs application dismissed.” (w.e.f. 30-3-1967)

Orissa.-In Order XXII, in rule 1, in sub-rule (1), after the words “institution of a suit”, insert the words “but not after the passing of the preliminary decree in the suit”, (7-5-1954)

1[1A. When transposition of defendants as plaintiffs may be permitted

Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.]

1. Ins. by Act No. 104 of 1976, s. 74 (w.e.f. 1-2-1977).

2. Limitation law not affected by first suit

In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.

3. Compromise of suit

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise 1[in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith 2[so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:]

1[Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]

2[Explanation-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;]

1. Ins. by Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).

2. Subs. by Act 104 of 1976, sec. 74. for “so far it relates to the suit” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXIII, in rule 3,-

(i) between the words ‘or compromise’ and ‘or where’, insert the words, ‘in writing duly signed by the parties’ and between the words ‘subject-matter of the suit’ and the words ‘the Court’, insert the words ‘and obtained an instrument in writing duly signed by the plaintiff, (ii) at the end of the rule, insert the following proviso and Explanation, namely:-

“Provided that the provisions of this rule shall not apply to or in any way affect the provisions of Order XXXIV, rules 3, 5 and 8.

Explanation.-The expressions, ‘agreement’ and ‘compromise’, include a joint statement of the parties concerned or their counsel recorded by the Court, and the expression ‘instrument’ includes a statement of the plaintiff or his counsel recorded by the Court.”

[Vide Notification No. 155/Alld-87, dated 31st August, 1974.]

[Ed.-This amendment relates to rule 3 prior to its amendment made by Central Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).]

Karnataka.-In Order XXIII,-

(i) re-number rule 3 as sub-rule (1) thereof

(ii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-::

“(2) Where any such agreement or compromise as is referred to in sub-rule (1) is placed before the Court by a party suing or defending in a representative capacity in a suit instituted, conducted or defended under the provisions of rule 8 of Order I of this Code, the Court shall not proceed with the consideration of the same or to pass a decree in accordance therewith without first notice of the application for recording such agreement or compromise in the manner prescribed in sub-rule (1) of rule 8 of Order 1 of this Code for giving notice of the institution of such suit. The expenses of giving such notice shall be borne by such party or parties as the Court may direct.” (w.e.f. 30-3-1967)

Madras.-In the Order XXIII, in rule 3, in the proviso, for the words “Provided that”, the following shall be substituted, namely:-

“Provided that the subject-matter of the agreement, compromise or satisfaction, in so far as it differs from the subject-matter of the suit, is within the territorial and pecuniary jurisdiction of the Court concerned: Provided further that.”

[Vide R.O.C. No. 3382/78-F1 and S.R.O. No. G-3/81 (w.e.f. 23-1-1981).]

Kerala.-In Order XXIII/ after rule 3, insert the following rule, namely:-

“3A. Settlement of oath.–If the parties agree to have the suit or any part of it decided by an oath taken by one of them in Court or elsewhere and tender a written agreement signed by both of them setting forth the terms of the oath and the place where it is taken, the Court may accept such agreement. After the oath has been taken in the manner proposed, the Court shall decide the case in terms of the agreement. After the agreement has been accepted by the Court, it shall not be competent to any of the parties to withdrawn therefrom without the leave of the Court. If any party withdraws or refuses to take the oath without lawful excuse, the Court may decide the case against him or pass such order as it deems proper.” (w.e.f. 9-6-1959)

1[3A. Bar to suit

No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

1. Ins. by Act 104 of 1976, sec. 74 (w.e.f. 1-2-1977).

3B. No agreement or compromise to be entered in a representative suit without leave of Court

(1) no agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.

(2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.

Explanation.-In this rule, “representative suit” means,-

(a) a suit under section 91 or section 92,

(b) a suit under rule 8 of Order I,

(c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family,

(d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.]

4. Proceeding in execution of decrees not affected

Nothing in this Order shall apply to any proceedings in execution of a decree or order.

ORDER XXIV. PAYMENT INTO COURT

1. Deposit by defendant of amount in satisfaction of claim

The defendant in any suit to recover a debt or damage may, at any stage of the suit, deposit in Court such sum of money as he considers a satisfaction in full of the claim.

2. Notice of deposit

Notice of the deposit shall be given through the Court by the defendant to the plaintiff, and the amount of the deposit shall (unless the Court otherwise directs) be paid to the plaintiff on his application.

3. Interest on deposit not allowed to plaintiff after notice

No interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice, whether the sum deposited is in full of the claim or falls short thereof.

4. Procedure where plaintiff accepts deposit as satisfaction in part

(1) Where the plaintiff accepts such amount as satisfaction in part only of his claim he may prosecute suit for the balance; and, if the Court decides that the deposit by the defendant was a full satisfaction of the plaintiffs claim, the plaintiff shall pay the costs of the suit incurred after the deposit and the costs incurred previous thereto, so far as they were caused by excess in the plaintiff s claim.

(2) Procedure where he accepts it as satisfaction in full-Where the plaintiff accepts such amount as satisfaction in full of his claim he shall present to the Court a statement to that effect, and such statement shall be filed and the Court shall pronounce judgment accordingly; and, in directing by whom the costs of each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation.

Illustrations

(a) A owes B Rs. 100. B sues A for the amount, having made no demand for payment, and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed. A pays the money into Court, B accepts it in full satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part.

(b) B sues A under the circumstance mentioned in illustration (a). On the plaint being filed, A disputes the claim. Afterwards A pays the money into Court. B accepts it in full satisfaction of his claim. The Court should also give B his cast of suit. A’s conduct having shown that the litigation was necessary.

(c) A owes B Rs. 100, and is willing to pay him that sum without suit. B claims Rs. 150 and sues A for that amount. On the plaint being filed, A pays Rs. 100 into Court and disputes only his liability to pay the remaining Rs. 50. B accepts the Rs. 100 in full satisfaction of his claim. The Court should order him to pay A’s costs.

ORDER XXV. SECURITY FOR COSTS

1[1. When security for costs may be required from plaintiff

(1) At any stage of a suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiff, for reasons to be recorded to give within the time fixed by it security for the payment of all costs incurred and likely to be incurred by any defendant:

Provided that such an order shall be made in all cases in which it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiff are, residing out of India and that such plaintiff does not possess or that no one of such plaintiffs possesses any sufficient immovable property with India other than the property in suit.

(2) Whoever leaves India under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of India within the meaning of the proviso to sub-rule (1).]

1. Subs. by Act 66 of 1956, sec. 14 for rule 1 (w.e.f. 1-1-1957).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXV, for rule 1, substitute the following rule, namely:-

“1. When security for costs may be required from plaintiff.-(1) At any stage of a suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiff for reason to be recorded to give within the time fixed by it, security for the payment of all costs incurred and likely to be incurred by any defendant:

Provided that such an order shall be made in all cases in which it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are, residing outside the State and that such plaintiffs does not possess or that one of such plaintiffs possesses any sufficient immovable property within the State other than the property in suit or that the plaintiff is being financed by another person.

(2) Whoever leaves that State under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing outside the State within the meaning of the proviso to sub-rule (1).” (w.e.f. 5-2-1983)

Madhya Pradesh.-In Order XXV, in rule (1), in proviso, at the end, insert the words “or that any plaintiff is being financed by a person not a party to the suit”, (w.e.f. 16-9-1960)

2. Effect of failure to furnish security

(1) In the event of such security not being furnished within the time fixed, the Court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom.

(2) Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside and, if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon such terms as to security, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(3) The dismissal shall not be set aside unless notice of such application has been served on the defendant.

HIGH COURT AMENDMENTS

Bombay.-In Order XXV, after rule 2, insert the following rule, namely:-

“3. Power to implead and demand security from third person financing litigation.-fl) Where any plaintiff has for the purpose of being financed in the suit transferred or agreed to transfer any share or interest in the property in the suit to a person who is not already a party to the suit, the Court may order such person to be made a plaintiff to the suit if he consents, and may either of its own motion or on the application of any defendant order such person, within a time to be fixed by it to give security for the payment of all costs incurred and likely to be incurred by any defendant. In the event of such security not being furnished within the time fixed, the Court may make an order dismissing the suit so far as his right to, or interest in the property in suit is concerned, or declaring that he shall be debarred from claiming any right to or interest in the property in suit.

(2) If such person declines to be made a plaintiff, the Court may implead him as a defendant and may order him, within a time to be fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any other defendant. In the event of such security not being furnished within the time fixed, the Court may make an order declaring that he shall be debarred from claiming any right to or interest in the property in suit.

(3) Any plaintiff or defendant against whom an order is made under this rule may apply to have it set aside and the provisions of sub-rules (2) and (3) of rule 2 shall apply mutatis mutandis to such application.” (w.e.f. 1-10-1983)

Gujarat.-Same as in Bombay,

Karnataka.-In Order XXV, in rule 2, after sub-rule (3) insert the following sub-rule, namely:-

“(4) The provisions of section 5 of the Limitation Act, 1963, shall apply to applications under this rule.” (w.e.f. 30-3-1967)

Madhya Pradesh.-In Order XXV, for rule 3, substitute the following rule, namely:-

“3. Power to implead and demand security from a third person financing litigation.- (1) Where any plaintiff has, for the purpose of being financed in the suit, transferred or agreed to transfer any share or interest in the property in suit, to a person who is not already a party to the suit, the Court may order such person to be made a plaintiff to the suit, if he consents and may either of its own motion or on the application of any defendant order such person, within a time to be fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant. In the event of such security not being furnished within the time fixed, the Court may make an order dismissing the suit so far as his right to, or interest in the property in suit is concerned or declaring that he shall be debarred from claiming any right to, or interest in the property in suit.

(2) If such person declines to be made a plaintiff the Court may implead him as a defendant and may order him, within a time to be fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any other defendant. In the event of such security not being furnished within the time fixed the Court may make an order declaring that he shall be debarred from claiming any right to, or interest in, the property in suit.

(3) Any plaintiff or defendant against whom an order is made under this rule may apply to have it set aside and the provisions of sub-rules (2) and (3) of rule 2 shall apply mutatis mutandis to such application.” (w.e.f. 16-9-1960)

ORDER XXVI. COMMISSIONS

Commissions to examine witnesses

1. Cases in which Court may issue commission to examine witness

Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it:

1[Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

Explanation-The Court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infertility of any person, without calling the medical practitioner as a witness.]

1. Ins, by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Allahabad.-In Order XXVI, for rule 1, substitute the following rule, namely:-

“1. Commission to examine witness.-Any Court may, in any suit, if for the reasons to be recorded in writing, it thinks it necessary to do so in the interest of justice or expedition, issue a Commission for the examination of any person on interrogatories or otherwise.”

[Vide Notification No, 504/XI1I-B-31, dated 22nd November, 1980.]

2. Order for commission

An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.

3. Where witness resides within Court’s jurisdiction

A commission for the examination of a person who resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it.

HIGH COURT AMENDMENT

Allahabad.-In Order XXVI, for rule 3, substitute the following rule, namely:-

“3. Commission to whom issued.-Such commission may be issued to any Court not being a High Court within the local limits of whose jurisdiction such person resides or to any pleader or other person whom the Court thinks fit to execute it and the Court shall direct whether the commission shall be returned to itself or to any subordinate Court.” (w.e.f. 22-11-1980)

4. Persons for whose examination commission may issue

(1) Any Court may in any suit issue a commission 1[for the examination on interrogatories or otherwise of-]

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) 2[any person in the service of the Government] who cannot in the opinion of the Court, attend without detriment to the public service:

3[Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:

Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.]

(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.

(3) The Court on issuing any commission may this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.

1. Subs, by Act No. 104 of 1976, sec. 75, for “for the examination of (w.e.f. 1-2-1977).

2. Subs. by A.O. 1937, for “any civil or military officer of the Government.”

3. Ins. by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad,-In Order XXVI, omit rule’4. (w.e.f. 18-9-1980)

Madhya Pradesh.-In Order XXVI, in rule 4, in sub-rule (1), after clause (c), insert the following clause, namely:-

“(d) any person who by reason of anything connected with the war cannot conveniently be spared.”

[Vide Notification No. 3409, dated 26th June, 1943.]

Rajasthan.-In Order XXVI, after rule 4, insert the following rule, namely:-

“4A. Commission for examination of any person resident with Court’s local limits.- (I) Notwithstanding anything contained in these rules, any Court may, in the interests of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise of any person resident within the local limits of its jurisdiction and the evidence so recorded shall be read in evidence.

(2) The provisions of sub-rule (1) shall apply to proceedings in execution of a decree or order.”

[Vide Rajasthan Gazette, Extra, Ft, IV (Ga), Sec. 2, dated 1st December, 1973.]

1[4A. Commission for examination of any person resident within the local BE limits of the jurisdiction of the Court

Notwithstanding anything contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.]

1. Ins. by Act No. 46 of 1999 section 29 (w.e.f.. 1-7-2002)

5. Commission or request to examine witness not within India

Where any Court to which application is made for the issue of a commission for the examination B of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.

6. Court to examine witness pursuant to Commission

Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.

7. Return of commission with depositions of witnesses

Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the returned thereto and the evidence taken under it shall 1[subject to the provisions of rule 8] from part of the record of the suit.

1. Subs, by Act No. 104 of 1976, sec. 75, for “subject to the provisions of the next following rule)” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENT

Allahabad.-In Order XXVI, in rule 7, omit the words “subject to the provision of rule 8” and at the end, insert the words “shall be read as evidence in the suit”, (w.e.f. 22-11-1980)

8. When depositions may be read in evidence

Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless-

(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infermity to attend to be personally examined, or exempted from personal appearance in Court or is a person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service, or

(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a) and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.

HIGH COURT AMENDMENT

Allahabad,-In Order XXVI, omit rule 8. (w.e.f. 22-11-1980)

Commissions for local investigations

9. Commissions to make local investigations

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elecidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

HIGH COURT AMENDMENTS

Calcutta.-In Order XXVI, in rule 9, omit the proviso.

[Vide Notification No. 11223-G, dated 7th April, 1933.]

Gauhati.-Same as in Calcutta.

10. Procedure of Commissioner

(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and deposition to be evidence in suit. Commissioner may be examined in person-The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

1[Commissions for scientific investigation, performance of ministerial act and sale of movable property

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

10A. Commission for scientific investigation

(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.

(2) The provisions of rule 10 of the Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

10B. Commission for performance of a ministerial act

(1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

10C. Commission for the sale of movable property

(1) Where in any suit, it becomes necessary to sell any movable property which is in the custody of the Court pending the determination of the suit and which cannot be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such -person as it thinks fit, directing him to conduct such sale and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

(3) Every such sale shall be held, as far as may be, in accordance with the procedure prescribed for the sale of movable property in execution of a decree.]

Commissions to examine accounts

11. Commission to examine or adjust accounts

In any suit in which an examination or adjustment of the accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.

12. Court to give Commissioner necessary instructions

(1) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.

(2) Proceedings and report to be evidence. Court may direct further inquiry-The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.

Commissions to make partitions

13. Commission to make partition of immovable property

Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

14. Procedure of Commissioner

(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directly by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.

(2) The commissioner shall then prepare and sign a report or the Commission (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.

HIGH COURT AMENDMENTS

Orissa and Patna.-In Order XXVI, in rule 14, for sub-rules (2) and (3), substitute the following sub-rules, namely:-

“(2) The Commissioner shall then prepare and sign a report or the commissioner (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if necessary) by metes and bounds. The Commissioner or Commissioners shall append to the report or where there is more than one to each report a schedule showing the plots and areas allotted to each party and also unless otherwise directed by the Court, a map showing in different colours the plots or portions of plots allotted to each party. In the event of a plot being sub-divided the area of each sub-plot shall be given in the schedule and also measurements showing how the plot is to be divided. Such report or reports with the schedule and map, if any, shall be annexed to the commission and transmitted to the Court and the Court after hearing any objections which the parties may make to the report or reports shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied and when drawing up the final decree shall incorporate in its decree the schedule and the map, if any, mentioned in sub-rule (2) above, as confirmed or varied by the Court. The whole report or reports of the Commissioner or Commissioners shall not ordinarily be entered in the decree. Where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.” (w.e.f. 4-3-1932)

General provisions

15. Expenses of commission to be paid into Court

Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-Same as in Madras with substitution of the words “any of the Courts mentioned in clause (c) of section 78 of this Code” for the words “foreign Courts under the provisions of section 78”.

Kerala.-Same as in Madras.

[Vide Notification No. BI-3312/5S, dated 7th April, 1959.]

Madras.-In Order XXVI,-

(i) renumber rule 15 as sub-rule (1) thereof;

(ii) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-

“(2) Before executing and returning any commission issued by foreign Courts under the provisions of section 78 the Court or the Commissioner required to execute the commission may levy such fees as the High Court may from time to time prescribe in this behalf in addition to the fees prescribed for the issue of summons to witnesses and for expenses of such witnesses under rule 2 of Order XVI.”

Orissa.-In Order XXVI, in rule 15, at the end, insert the words “any after the issue of such omission may order such further sums to be paid into Court from time to time by either party as the Court may consider necessary”.

[Vide Notification No. 24-X-7-52, dated 30th March, 1954.]

16. Powers of Commissioners

Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment,-

(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;

(b) call for and examine documents and other things relevant to the subject of inquiry;

(c) at any reasonable time enter upon or into any land or building mentioned in the order.

1[16A. Questions objected to before the Commissioner

(1) Where any question put to a witness is objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the Commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting:

Provided that the Commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the Court, and, where the Court decides that there is no question of privilege, the witness may be recalled by the Commissioner and examined by him or the witness may be examined by the Court with regard to the question which was objected to on the gtound of privilege.

(2) No answer taken down under sub-rule (1) shall be read was evidence in the suit except by the order of the Court.]

1. Ins. by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

17. Attendance and examination of witnesses before Commissioner

(1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of 1[India], and for the purposes of this rule the Commissioner shall be deemed to be a Civil Court:

2[Provided that when the Commissioner is not a Judge of a Civil Court he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the Court by which the commission was issued.]

(2) A Commissioner may apply to any Court (not being a High Court) within the local limits on whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper.

1. Subs. by Act 2 of 1951, sec. 3, for “the States”.

2. Ins. by Act No. 104 of 1976, sec. 75, (w.e.f. 1-2-1977).

18. Parties to appear before Commissioner

(1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.

HIGH COURT AMENDMENTS

Allahabad.-In Order XXVI, in rule 18, in sub-rule (1), after the words “agents or pleaders”, substitute a comma for the full stop and insert the words “and shall direct the party applying for the examination of the witness or in the discretion any other party to the suit, to supply the Commissioner with a copy of the pleadings and issues.”

[Vide Notification No. 4084/35 (a)-3(7), dated 24th July, 1926.]

Orissa.-Same as in Allahabad, (w.e.f. 29-12-1961)

1[18A. Application of Order to execution proceedings-

The provisions of this Order shall apply so far as may be, to proceedings in execution of a decree or order.

1. Ins. by Act No. 104 of 1976, sec. 75 (w.e.f. 1-2-1977).

18B. Court to fix a time for return of commission

The Court issuing a commission shall fix a date on or before which the commission shall be returned to it after execution, and the date so fixed shall not be extended except where the Court, for reasons to be recorded, is satisfied that there is sufficient cause for extending the date.]

Commissions issued at the instance of foreign Tribunals

19. Cases in which High Court may issue commission to examine witness-

(1) If a High Court is satisfied-

(a) that a foreign court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,

(b) that the proceeding is of a civil nature, and

(c) that the witness is residing within the limits of the High Court’s appellate jurisdiction,

it may, subject to the provisions of the rule 20, issue a commission for the examination of such witness.

(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule (1)-

(a) by a certificate signed by the consular officer of the foreign country of the highest rank in India and transmitted to the High Court through the Central Government, or

(b) by a letter of request issued by the foreign Court and transmitted to the High Court through the Central Government, or

(c) by a letter of request issued by the foreign Court and produced before the High Court by a party to the proceeding.

20. Application for issue of commission

The High Court may issue a commission under rule 19-

(a) upon application by a party to the proceeding before the foreign Court, or

(b) upon an application by a law officer of the State Government acting under instructions from the State Government.

21. To whom commission may be issued

A commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or the witness resides within the local limits of the ordinary original civil jurisdiction of the High Court to any person whom the Court thinks fit to execute the commission.

HIGH COURT AMENDMENT

Kerala.-In Order XXVI, for rule 21, substitute the following rule, namely:-

“21. To whom Commission may be issued.-A commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or to any person whom the Court thinks fit to execute the commission.” (w.e.f. 9-6-1959).

22. Issue, execution and return of commissions, and transmission of evidence to foreign Court

The provisions of rules 6, 15 1[Sub-rule (1) of rule 16A, 17, 18 and 18B] of this Order in so far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the Central Government, along with the letter of request for transmission to the foreign court.]

1. Subs, by Act No. 104 of 1976, for “16, 17 and 18” (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XXVI, after rule 22, insert the following rules, namely:-

“23. (1} The Court may in any suit issue a commission to such person or persons as it thinks fit to translate accounts and documents which are not in the language of the Court.

(2) Before issuing such a commission the Court may order such sum, if any, as it thinks reasonable for the expenses of the commission to be paid into Court by the party at whose instance or for whose benefit the commission has been issued within such time as may be fixed by the Court.

(3) The report of the Commissioner shall be evidence in the suit and shall form part of the record.

(4) Where however a translation as required by rule 12 of Order XII of this Code has already been filed into Court, no further commission under this rule need be issued.

(5) A translation submitted by the Commissioner or Commissioners under this rule shall be verified in the manner prescribed in rule 12 of Order XIII of this Code.

24. The provisions of this order shall apply so far as may be, to proceedings in execution of decree or order. Verified in the manner prescribed in rule 12 of Order XIII of this Code.” (w.e.f. 30-3-1967)

Kerala.-Same as in Madras.

[Vide Notification No. BI-3312/5S, dated 9th June, 1959.]

Madras.-In Order XXVI,-

(a) after rule 22, insert the following rule, namely:-

“23. Application of order to execution proceedings.-The provisions of this Order and of Order XXVIA shall apply, so for as may be, to proceedings in execution of a decree or Order.” (w.e.f. 9-6-1923)

(b) after Order XXVI, insert the following Order, namely:-

ORDER XXVI A

1. The Court may in any suit issue a commission to such person as it thinks fit to translate accounts and other documents which are not in the language of the Court.

2. The report of the Commissioner shall be evidence in the suit and shall form part of the record.

3. Before issuing any-commission under this Order, the Court may order such sum

(if any) as it thinks reasonable for the expense of the commission to be, within a time to be fixed, paid in the Court by the party at whose instance or for whose benefit the commission is issued.”

Orissa.-In Order XXVI –

(a) after rule 22, insert the following rules, namely:

“23. (i) The Court may in any suit issue a commission to such persons as it thinks fit to translate accounts or other documents which are not in Court language or to inspect documents for purposes to be specified in the order appointing such Commissioner.

(ii) The report of the Commissioner shall be evidence in the suit and shall form part of the record.

(iii) Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expense of the commission to be, within a time to be fixed, paid in the Court by the party at whose instance or for whose benefit the commission is issued.”

ORDER XXVII. SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY

ORDER XXVII. SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY

1. Suits by or against Government

In any suit by or against the Government the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case.

STATE AMENDMENTS

Uttar Pradesh.-In the marginal heading of the Order, after the words “official capacity”, insert the words “or Statutory Authorities, etc.” [U.P. Act 57 of 1976].

2. Persons authorised to act for Government

Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, act and applications under this Code may be made or done on behalf of the Government.

3. Plaints in suits by or against Government

In suits by or 1[against the Government] instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert 1[the appropriate name as provided in section 79.2[* * *]]

1. Subs. A.O. 1937, for “against the Secretary of State for India in Council”.

2. Certain words omitted by the A.O. 1948.

1[4. Agent for Government to receive process

The Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court.]

1. Subs. by the A.O. 1937, for rule 4.

5. Fixing of day for appearance on behalf of Government

The Court, in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the Government pleader to appear and answer on behalf of the Government and may extend the time at its discretion [but the time so extended shall not exceed two months in the aggregate.]

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XXVII, in rule 5, after the words “instructions to the Government pleader”, insert the words “or recognised agents of the Government”.

Kerala.-Same as in Madras.

Madras.-In Order XXVII, in rule 5, for the words “a reasonable time”, substitute the words “not less than three months’ time from the date of summons”.

1[5A. Government to be joined as a party in a suit against a public officer

Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.

1. Ins. by Act No. 104 of 1976, sec. 76 (w.e.f. 1-2-1977).

5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a settlement

(1) In every suit or proceeding to which the Government, or a public officer acting in his official capacity, is a party, it shall be the duty of the Court to make, in the first instance, every endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage, it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement.

(3) The power conferred under sub-rule (2) is in addition to any other power of the Court to adjourn proceedings.]

6. Attendance of person able to answer questions relating to suit against Government

The Court may also in any case in which the Government pleader is not accompanied by any person on the part of the Government who may be able to answer any material questions relating to the suit, direct the attendance of such a person.

7. Extension of time to enable public officer to make reference to Government

(1) Where the defendant is a public officer and, on receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may necessary to enable him to make such reference and to receive orders thereon through the proper channel.

(2) Upon such application the Court shall extend the time for so long as appears to it to be necessary.

8. Procedure in suits against public officer

(1) Where the Government undertakes the defence of a suit against a public officer, the Government pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.

(2) Where no application under sub-rule (1) is made by the Government pleader on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties:

Provided that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree.

8A. No security to be required from Government or a public officer in certain cases

No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Madras.-In Order XXVII, re-number rule 8A as rule 9.

8B. Definitions of “Government” and “Government pleader”

In this Order unless otherwise expressly, provided “Government” and “Government pleader” mean respectively-

(a) in relation to any suit by or against the Central Government, or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order;

1[* * *]

(c) in relation to any suit by or against a State Government or against a public officer in the service of a State, the State Government and the Government pleader as defined in clause (7) of section 2, or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order.

1. Clause (b) omitted by the A.O. 1948.

STATE AMENDMENT

Uttar Pradesh.-In Order XXVII, after rule 9, insert the following rule, namely:-

“10- Suits by or-against statutory authority.-(1) Any authority or corporation, consituted by or under any law, may, from time to time, appoint a Standing Counsel, to be called Corporation pleader of that authority in any district and give information of such appointment to the District Judge *[and to Registrar of the High Court at Allahabad or a Lucknow Bench, as the case may be].

(2) The Corporation pleader so appointed shall be the agent in that district of the appointing authority or Corporation for purposes of receiving processes against it, but shall not act or plead without filing a vakalatnama or memorandum of appearance.”

[Vide Uttar Pradesh Act 57 of 1976, sec. 11 (w.e.f. 1-1-1977) and * Notification dated 10th February, 1981 (w.e.f. 3-10-1981).]

HIGH COURT AMENDMENTS

Allahabad.-In Order XXVII, after rule 8B, insert the following rule, namely:-

“9. In every case in which the District Government Counsel appears for the Government as a party on its own account, or for the Government as undertaking under the provisions of rule 8(1), the defence of a suit against an officer of the Government, he shall, in lieu of a vakalatnama, file a memorandum on unstamped paper signed by him and stating on whose behalf he appears. Such memorandum shall be, as nearly as may be, in the terms of the following form:-

TITLE OF THE SUIT, ETC.

1. AB. District Government Counsel appears on behalf of the Government of India (or the Government of Uttar Pradesh, or as the case may be) respondent (or etc.). in the suit:-

or, on behalf of the Government [which under order 27, rule 8(1) of Act No. V of 1908, has undertaken the defence of the suit], respondent (or, etc.), in the suit.”

{Vide Notification No. 1953/35 (a), dated 22nd May, 1915.]

Andhra Pradesh.-Same as in Madras.

Madras.-In Order XXVII, renumber rules 8A and 8B as rules 9 and 10 respectively, (w.e.f. 2-3-1942)

Orissa.-In Order XXVI, insert the following rule, namely:-

“9. In every case in which the Government pleader appears for the Government as a party on it own accounts or for the Government as undertaking under the provision of rule 8(1), the defence of a suit against an officer of a Government, he shall in lieu of a vakalatnama, file a memorandum of unstamped paper signed by him and stating on whose behalf he appears.” (w.e.f. 14-10-1960)

[ORDER XXVIIA. SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE INTERPRETATION OF [THE CONSTITUTION] [OR AS TO THE VALIDITY OF ANY STATUTORY INSTRUMENT]

1[ORDER XXVIIA. SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE INTERPRETATION OF 2[THE CONSTITUTION] 3[OR AS TO THE VALIDITY OF ANY STATUTORY INSTRUMENT]

1. Order XXVIIA (containing rules 1, 2, 3, and 4) Ins. by act 23 of 1942, sec.2.

2. Subs. by the A.O. 1950, for “the Government of India Act, 1935, or any Order-inCouncil made thereunder”.

3. Ins. By Act 104 of 1976, sec. 77 (w.e.f. 1-2-1977).

1. Notice to the Attorney General or the Advocate-General

In any suit in which it appears to the Court that any such question as is referred to in clause (1) of Article 132, read with Article 147 of the Constitution is involved, the Court shall not proceed to determine that question until after notice has been given to the Attorney General for India if the question of law concerns the Central Government and to the Advocate-General of the State if the question of law concerns a State Government.

1[lA. Procedure in suits involving validity of any statutory instrument

In any suit in which it appears to the Court that any question as to the validity of any statutory instrument, not being a question of the nature mentioned in rule 1, is involved, the Court shall not proceed to determine that question except after giving notice-

(a) to the Government pleader, if the question concerns the Government, or

(b) to the authority which issued the statutory instrument, if the question concerns an authority other than Government.]

1. Ins. by Act No. 104 of 1976, sec.77, (w.e.f. 1-2-1977).

2. Court may add Government as party

The Court may at any stage of the proceedings order that the Central Government or a State Government shall be added as a defendant in any suit involving any such question as it referred to in clause (1) of Article 132 read with Article 147, of the Constitution, if the Attorney General for India or the Advocate-General of the State, as the case may be, whether upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.

1[2A. Power of Court to add Government or other authority as a defendant in a suit relating to the validity of any statutory instrument

The Court may, at any stage of the proceedings in any suit involving any such question as is referred to in rule 1A, order that the Government or other authority shall be added as a defendant if the Government pleader or the pleader appearing in the case for the authority which issued the instrument, as the case may be, whether upon receipt of notice under rule 1A or otherwise, applies for such addition, and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question.]

1. Ins. by Act No. 104 of 1976, sec. 77, (w.e.f. 1-2-1977).

1[3. Costs

Where, under rule 2 or rule 2A the Government or any other authority is added as a defendant in a suit, the Attorney-General, Advocate-General or Government Pleader or Government or other authority shall not be entitled to, or liable for, costs in the Court which ordered the addition unless the Court, having regard to all the circumstances of the case for any special reason, otherwise orders.]

1. Subs. by Act No. 104 of 1976, sec. 77 for rule 3 (w.e.f. 1-2-1977).

4. Application or Order to appeals

In application of this Order to appeals the word “defendant” shall be held to include a respondent and the word “suit” an appeal.

1[Explanation-In this Order, “statutory instrument” means a rule, notification, bye-law order, scheme or form made as specified under any enactment.]

1. Ins. by Act No. 104 of 1976, sec. 77, (w.e.f. 1-2-1977).

ORDER XXVIII. SUITS BY OR AGAINST MILITARY OR NAVAL MEN 1[OR AIRMEN

ORDER XXVIII. SUITS BY OR AGAINST MILITARY OR NAVAL MEN 1[OR AIRMEN

1. Ins. by Act 10 of 1927, sec. 2 and Sch. I.

1. Officers, soldiers, sailors or airmen who cannot obtain leave may authorize any person to sue or defend for them

(1) Where any officer, soldier, sailor or airman, actual serving under the Government in such capacity is a party to a suit, and cannot obtain leave of absence for the purpose of prosecuting or defending the suit in person, he may authorize any person to sue or defend in his stead.

(2) The authority shall be writing and shall be signed by the officer, soldier, sailor or airman in the presence of (a) his commanding officer, or the next subordinate officer, if the party is himself the commanding officer, or (b) where the officer, soldier, sailor or airman, is serving in military, naval or air force staff employment the head or other superior officer of the office in which he is employed. Such commanding or other officer shall countersign the authority, which shall be filed in Court.

(3) When so filed the countersignature shall be sufficient proof that the authority was duly executed, and that the officer, soldier, sailor or airman by whom it was granted could not obtain leave of absence for the purpose of prosecuting of defending the suit in person.

Explanation-In this Order the expression “commanding officer” means the officer in actual command for the time being of any regiment, corps, ship, detachment or depot which the officer, soldier sailor or airman belongs.

2. Person so authorized may act personally or appoint pleader

Any person authorized by an officer, soldier, sailor or airman to prosecute or defend a suit in his stead may prosecute or defend it in person in the same manner as the officer, soldier, sailor or airman could do if present; or he may appoint a pleader to prosecute or defend the suit on behalf of such officer, soldier, sailor or airman.

3. Service on person so authorized, or on his pleader, to be service

Process served upon any person authorized by an officer soldier, sailor or airman under rule 1 or upon any pleader appointed as aforesaid by such person shall be as effectual as if they had been served on the party in person.

ORDER XXIX. SUITS BY OR AGAINST CORPORATIONS

1. Subscription and verification of pleading

In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the security or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Kerala.-In Order XXIX, after rule 1, insert rule 1A which is same as in Madras with the addition of the following as marginal note:-

“Time to be fixed in the summons for appearance in suits against local authority”.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXIX, after rule 1, insert the following rule, namely:-

“1A. In suits against a local authority the Court in fixing the day for the defendant to appear and answer shall allow not less than two months time between the date of summons and the date for appearance.”

2. Service on corporation

Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served-

(a) on the secretary, or on any director, or other principal officer of the corporation, or

(b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.

STATE AMENDMENT

Uttar Pradesh.-In Order XXIX, in rule 2, after clause (a), insert the following clause, namely;-

“(aa) on its corporation pleader in the district where the Court issuing summons is located, if one has been appointed and the appointment has been notified to the District Judge under rule 10 of order XXVII, or”.

[Vide Uttar Pradesh Act 57 of 1976, sec. 12 fw.e.f. 1-1-1977}.]

HIGH COURT AMENDMENT

Karnataka.-In Order XXIX, after rule 2, insert the following rule, namely;-

“2A. Where the suit is against a local authority the Court in fixing the day for such authority to answer the plaint shall allow a reasonable time for the necessary communication with any department of the Government and for the issue of the necessary instruction to the pleader of the authority, and may extend the time at its discretion.”

[Vide R.O.C. 2526 of 1959, dated 9th February, 1967.]

3. Power to require personal attendance of officer of corporation.

The Court may, at any stage of the suit, require the personal appearance of the secretary or of any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit.

ORDER XXIX
SUITS BY OR AGAINST CORPORATIONS

1. Subscription and verification of pleading

In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the security or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Kerala.-In Order XXIX, after rule 1, insert rule 1A which is same as in Madras with the addition of the following as marginal note:-

“Time to be fixed in the summons for appearance in suits against local authority”.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXIX, after rule 1, insert the following rule, namely:-

“1A. In suits against a local authority the Court in fixing the day for the defendant to appear and answer shall allow not less than two months time between the date of summons and the date for appearance.”

2. Service on corporation

Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served-

(a) on the secretary, or on any director, or other principal officer of the corporation, or

(b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.

STATE AMENDMENT

Uttar Pradesh.-In Order XXIX, in rule 2, after clause (a), insert the following clause, namely;-

“(aa) on its corporation pleader in the district where the Court issuing summons is located, if one has been appointed and the appointment has been notified to the District Judge under rule 10 of order XXVII, or”.

[Vide Uttar Pradesh Act 57 of 1976, sec. 12 fw.e.f. 1-1-1977}.]

HIGH COURT AMENDMENT

Karnataka.-In Order XXIX, after rule 2, insert the following rule, namely;-

“2A. Where the suit is against a local authority the Court in fixing the day for such authority to answer the plaint shall allow a reasonable time for the necessary communication with any department of the Government and for the issue of the necessary instruction to the pleader of the authority, and may extend the time at its discretion.”

[Vide R.O.C. 2526 of 1959, dated 9th February, 1967.]

3. Power to require personal attendance of officer of corporation.

The Court may, at any stage of the suit, require the personal appearance of the secretary or of any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit.

ORDER XXX. SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN

1. Suing of partners in name of firm

(1) Any two or more persons claiming or being liable as partners and carrying on business, in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct.

(2) Where persons sue or are sued partners in the name of their firm under sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice such pleading or other document is signed, verified or certified by any one of such persons.

HIGH COURT AMENDMENTS

Delhi.-Same as in Punjab.

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Punjab.-In Order XXX, in rule 1, at the end, insert the following “Explanation “, namely:-

“Explanation.-This rule applied to a joint Hindu family trading partnership.”

[Vide Notification No. 2212-G, dated 12th May, 1909.]

2. Disclosure of partners’ names

(1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demanding writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted.

(2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1) all proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the Court may direct.

(3) Where the names of the partners are declared in the manner referred to in sub-rule (1) the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint:

1[Provided that all proceedings shall nevertheless continue in the name of the firm, but the name of the partners disclosed in the manner specified in sub-rule (1) shall be entered in the decree.]

1. Subs, by Act No. 104 of 1976 for the proviso (w.e.f. 1-2-1977).

3. Service

Where persons are sued as partners in the name of their firm, the summons shall be served either-

(a) upon any one or more of the partners, or

(b) at the principal place at which the partnership business is carried on within India upon any person having, at the time of service, the control or management or the partnership business, there,

as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without India:

Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within India whom it is sought to make liable.

4. Rights of suit on death of partner

(1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872 (9 of 1872) where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.

(2) Nothing in sub-rule (1) shall limit or otherwise effect any right which the legal representative of the deceased may have-

(a) to apply to be made a party to the suit, or

(b) to enforce any claim against the survivor or survivors.

5. Notice in what capacity served

Where a summons is issued to a firm and is served in the manner provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner.

6. Appearance of partners.

Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

HIGH COURT AMENDMENT

Orissa.- In Order XXX, in rule 6, at the end, insert the following words, namely:-

“But the decree shall, however, cointain the names of all such partners.” (w.e.f. 7-5-1954)

7. No appearance except by partners.

Where a summons is served in the manner provided by rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.

1[8. Appearance under protest

(1) Any person served with summons as a partner under rule 3 may enter an appearance under protest, denying that he was a partner at any material time.

(2) On such appearance being made, either the plaintiff or the person entering the appearance may, at any time before the date fixed for hearing and final disposal of the suit, apply to the Court for determinig whether that person was a partner of the firm and liable as such.

(3) If, on such application, the Court holds that he was a partner at the material time, that shall not preclude the person from filing a defence denying the liability of the firm in respect of the claim against the defendant.

(4) If the Court, however, holds that such person was not a partner of the firm and was not liable as such that shall not preclude the plaintiff from otherwise serving a summons on the firm and proceeding with the suit; but in that event, the plaintiff shall be precluded from alleging the laibility of that person as a partner of the firm in execution of any decree that may be passed against the firm.]

1. Subs, by Act No. 104 of 1976 for rule 8 (w.e.f. 1-2-1977).

9. Suits between co-partners

This Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners, in common; but not execution shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just.

1[10. Suit against person carrying on business in name other than his own

Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly.]

1. Subs, by Act No. 104 of 1976 for rule 10 (w.e.f. 1-2-1977).

ORDER XXXI. SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

ORDER XXXI. SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

1. Representation of beneficiaries in suits concerning property vested in trustees, etc.

In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee; executor or Administator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties.

2. Joinder of trustee, executors and administrators

Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them:

Provided that the executors who have not proved their testator’s will, and trustees, executors and administrators outside India need not be made parties.

3. Husband of married executrix not to join

Unless the Court directs otherwise, the husband of a married trustee, administratrix or executrix shall not as such be a party to a suit by or against her.

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

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

1. Minor to sue by next friend

Every suit by a minor shall be instituted in his name by a person who in such shall be called the next friend of the minor.

1[Explanation-In this Order, “minor” means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.]

1. Ins. by Act 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Delhi.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Punjab.-In Order XXXII, in rule 1, at the end, insert the following words, namely:-

“Such person may be ordered to pay any costs in the suit as if he were the plaintiff.”

[Vide Notification No. 2212-G, dated 12th May, 1909.]

2. Where suit is instituted without next friend, plaint to be taken off the file-

(1) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.

(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

1[2A. Security to be furnished by next friend when so ordered

(1) Where a suit has been instituted on behalf of the minor by his next friend, the Court may, at any stage of the suit, either of its own motion or on the application of any defendant, and for the reasons to be recorded, order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant.

(2) Where such a suit is instituted by an indigent person, the security shall include the court-fees payable to the Government.

(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit where the Court makes an order under this rule directing security to be furnished.]

1. Ins. by Act 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

3. Guardian for the suit to be appointed by Court for minor defendant-

(1) Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

(4) Order shall be made on any application under this rule except upon notice to any 1*** to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian,

2[upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian] of the minor, or, where there is 2[no father, mother or other natural guardian], to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

3[(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.]

(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.

1. The words “to the minor and” omitted by Act No. 104 of 1976.

2. Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1- 2-1977).

3. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XXXII, in rule 3,-

(a) in sub-rule (3), at the end, delete the full stop and insert the following words, namely:-

“and shall also contain the names and addresses of all probable guardians including any guardian of the minor appointed or declared by an authority competent in that behalf, or the father or the other natural guardian of the minor, or where there is no father or other natural guardian the person in whose care the minor is.”

(b) for sub-rule (4), substitute the following sub-rule, namely:-

“(4) The Court shall cause notice of such application to be served upon the minor as also upon all the probable guardians named in the application and such other persons as it may deem fit calling upon them to file objections, if any, to the appointment, etc. the proposed or any other probable guardian of the minor. In case any person himself desires to be appointed guardian of the minor instead of the proposed guardian, he shall furnish an affidavit verifying the fact he has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

The Court shall after hearing the objections, if any, and considering the respective claims of all persons desirous of being appointed guardian including the proposed guardian, such person as guardian appoint of the minor as it may deem fit.”

(c) in sub-rule (4) insert the following proviso, namely:-

“Provided that if the minor is under twelve years of age no such notice shall be issued to him.”

[Vide Notification No. 43 VIId-29, dated 1st June, 1957.]

Andhra Pradesh.-Same as in Madras.

Delhi.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXXII, for rule 3, substitute the following rule, namely:-

“3. (1) Same as sub-rule (1) of Madras with substitution of the words “or in the case of a guardian for the suit a plaintiff” by the words “in the suit or in the case of a guardian a plaintiff in the suit”.

(2) Same as sub-rule (2) of Madras with insertion of the words “in writing” after “for reasons to be recorded”.

(3) Same as sub-rule (3) of Madras with addition at the end of: “A person appointed as guardian under this sub-rule shall, unless his appointment is terminated by retirement or removal by the order of Court on application made for the purpose or by his death, continue throughout all proceedings in the suit or arising out of the suit including proceedings in any appeal or in revision and any proceedings in execution of a decree and the service of any processes in any such proceeding on the said guardian if duly made shall be deemed to be good service for the purpose of such proceedings. r

(4) Same as sub-rule (4) of Madras with the following modifications:-

(i) Before the words “set forth” insert “whether necessary”;

(ii) Omit the words within brackets and the last sentence.

(5) Same as sub-rule (5) of Madras.

(6) Same as sub-rule (6) of Madras with substitution of the word “party” for the words “plaintiff petitions”.

(7) No order shall be made on any application under sub-rule (4) above except upon notice to the minor and also to any guardian of the minor appointed or declared by an authority competent in that behalf, or where there is no such guardian upon notice to the father or natural guardian of the minor or where there is no father or natural guardian upon notice to the person in whose actual care the minor is and after hearing any objection which may be urged on behalf of any person so served with notice. The notice required by this sub-rule shall be served at least seven clear days before the day named in the notice for hearing of the application.

(8) Where none of the persons mentioned in the last preceding sub-rule is willing to act as guardian, the Court shall direct notice to other person or persons proposed for appointment as guardian either simultaneously to some or all of them or successively as it may consider convenient or desirable in the circumstances of the case. The Court shall appoint such person as it thinks proper from among those who have signified their consent and intimate the fact of such appointment to the person appointed by registered post unless he is present at the time of appointment either in person or by pleader.

(9) No person shall be appointed guardian for the suit without his consent and except in cases where an applicant himself prays for his appointment as guardian notices issued shall clearly require the party served to signify his consent or refusal to act as guardian.

(10) Same as sub-rule (10) of Madras with insertion of the words “or pleader” after the words “by that officer”.

(11) Same as sub-rule (11) of Madras.”

Kerala.-In Order XXXII, in rule 3,-

(i) substitute sub-rule (2) which is the same as sub-rule (4) of Madras.

(ii) in sub-rule (3), at the end, insert the following, namely:- ‘

“The affidavit shall further state the name of the person or persons on whom notice has to be served under the provisions of sub-rule (4).”

(iii) in sub-rule (4), insert the following proviso, namely:-

“Provided that if the minor is under 15 years of age no such notice shall be issued to him.” (w.e.f. 9-6-1959)

Madhya Pradesh.-In Order XXXII, for rule 3, substitute the following rule, namely:-

“3. Guardian for the suit to be appointed by Court for minor defendant:-(1) Where the defendant is a minor, the Court, not being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit of such minor.

(2) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceeding arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.” (w.e.f. 16-9-1960)

Madras.-In Order XXXII, for rules 3 and 4, substitute the following rules, namely:-

“3. Qualifications to be a next friend or guardian.-(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

Provided that the interest of that person is not adverse to that of the minor and that he is not in the case 6f a next friend, defendant, or in the case of a guardian for the suit, a plaintiff. ,.

(2) Appointed or declared guardians to be preferred and to be superseded only for reasons recorded.-Where a minor has a guardian appointed or declared by competent authority no person other than the guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be.

(3) Guardians to be appointed by Court.-Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for the minor.

(3A) A person appointed under sub-rule (3) to be guardian for the suit for a minor shall unless his appointment is terminated by retirement, removal or death continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceeding in execution of a decree.

(4) Appointment to be on application and where necessary after notice to proposed guardian.-An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. The application, where it is by the plaintiff, shall set forth, in the order of their suitability, a list of persons {with their full addresses for service of notice in Form No. 11A set forth in Appendix H. hereto) who are competent and qualified to act as guardian for the suit for the minor defendant. The Court may, for reasons to be recorded in any particular case, exempt the applicant from furnishing the list referred to above.

(5) Contents of affidavit in support of the application for appointment of guardian.- The application referred to in the above sub-rule whether made by the plaintiff or on behalf of the minor defendant shall be supported by an affidavit verifying the fact that the proposed guardian has not or that no one of the proposed guardians has any interest in the matters in controversy in the suit adverse to that of the minor and that the proposed guardian or guardians are fit persons to be so appointed.

The affidavit shall further state according to the circumstances of each case (a) particulars of any existing guardian appointed or declared by competent authority, (b) the name and address of the person, if any, who is the de facto guardian of the minor, (c) the names and addresses of persons, if any, who in the event of either the natural or the de facto guardian or the guardian appointed or declared by competent authority, not being permitted to act, are by reason of relationship or interest or otherwise, suitable persons to act as guardians for the minor for the suit.

(6) Application for appointment of guardian to be separate from application for bringing on record the legal representatives of a deceased party.-An application for the appointment of a guardian for the suit of a minor shall not be combined with an application for bringing on record the legal representatives of a deceased plaintiff or defendant. The applications shall be by separate petitions.

(7) Notice of application to be given to persons interested in the minor defendant other than the proposed guardian.-No order shall be made on any application under sub-rule (4) above except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or where there is no guardian, upon notice to the father or other natural guardian of the minor, or where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

The notice required by this sub-rule shall be served six clear days before the day named in the notice for the hearing of the application and may be in Form No. 11 set forth in Appendix H hereto.

(8) Special provision to shorten delay in getting a guardian appointed.-Where the application is by the plaintiff, he shall, along with his application and affidavit referred to in sub-rules (4) and (5) above, produce the necessary forms in duplicate filled in to the extent that is possible at that stage, for the issue simultaneous of notices to two at least of the proposed guardians for the suit to be selected by the Court from the list referred to in sub-rule (4) above together with a duly stamped voucher indicating that the fees prescribed for service have been paid.

If one or more of the proposed guardians signify his or their consent to act, the Court shall appoint one of them and intimate the fact of such appointment to the person appointed by registered post. If no one of the persons served signifies his consent to act, the Court shall proceed to serve simultaneously another selected two, if so many there be, of the persons named in the list referred to in sub-rule (4) above but no fresh application under sub-rule (4) shall be deemed necessary. The applicant shall within three days of intimation of unwillingness by the first set of proposed guardians, pay the prescribed fee for service and produce the necessary forms duly filled in.

(9) No person shall be appointed guardian without his consent.-No person shall without his consent, be appointed guardian for the suit. Whenever an application is made proposing the name of a person as guardian for the suit a notice in Form No. 11 A set forth in Appendix H hereto shall be served on the proposed guardian, unless the applicant himself be the proposed guardian or the proposed guardian consents.

(10) Court guardian.-When to be appointed-How he is to be placed in funds.- Where the Court finds no person fit and willing to act as guardian for the suit, the Court may appoint any of its officers or a pleader of the Court to be the guardian and may direct that the costs to be incurred by that officer in the performance of the duties as guardian shall be borne either by the parties or by any one or more of the parties to the suit or out of any fund in Court in which the minor is interested, and may give directions for the repayment or allowance of the costs as justice and the circumstances of the case may require.

(11) Funds for a guardian other than Court guardian to defend.-When a guardian for the suit of a minor defendant is appointed and it is made to appear to the Court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant and that the defendant will be prejudiced in his defence thereby, the Court may, from time to time, order the plaintiff to advance monies to the guardian for purpose of his defence and all monies so advanced shall form part of the costs of the plaintiff in the suit. The order shall direct that the guardians, as and when directed, shall file in Court an account of the monies so received by him.”

Punjab.-In Order XXXII, in rule 3, for sub-rules (3) and (4), substitute the following sub-rules, namely:-

“(3) The plaintiff shall file with his plaint a list of relatives of the minor and other persons, with their address, who prima facie are most likely to be capable of acting as guardian for the suit for a minor defendant. The list shall constitute an application by the plaintiff under sub-rule (2) above.

(4) The Court may at any time after institution of the suit call upon the plaintiff to furnish such a list, and in default of compliance, may reject the plaint.

(5) Any application for the appointment of a guardian for the suit and any list furnished under this rule shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that each person proposed is a fit person to be so appointed.

(6) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule:

Provided that the Court may, if it sees fit, issue notice to the minor also.”

[Vide Notification No. 95-G, dated 25th February, 1925 and Notification No. 566-G, dated 24th November, 1927.]

1[3A. Decree against minor to be set aside unless prejudice has been caused to his interests

(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reasons of such adverse interest of the next friend of guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree.

(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor.]

1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

4. Who may act as next friend or be appointed guardian for the suit

(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.

(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be.

(3) No person shall without his consent 1[in writing] be appointed guardian for the suit.

(4) Where there is no other person fit and willing to act as guardian for the suit, for Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested 1[or out of the property of the minor], and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.

1. Ins. by Act No. 104 of 1976, (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-(a) In Order XXXII, for rule 4, substitute the following rule, namely:-

“4. (1) Where a minor has a guardian appointed or declared by competent authority no person other than such guardian shall act as next friend, except by leave of the Court.

(2) Subject to the provisions of sub-rule (1) any person who is of sound mind and has attained majority may act as next friend of a minor, unless the interest of such person is adverse to that of the minor, or he is a defendant, or the Court for other reasons to be recorded considers him unfit to act.

Every next friend shall, except as otherwise provided by clause (5) of this rule, be entitled to be reimbursed from the estate of the minor any expenses incurred by him while acting for the minor.

(4) The Court may, in its discretion, for reasons to be recorded, award costs of the suit, or compensation under section 35A or section 95 against the next friend personally as if he were a plaintiff,

(5) Costs or compensation awarded under clause (4) shall not be recoverable by the guardian from the estate of the minor, unless the decree expressly directs that they shall be so recoverable.”

[Vide Notification No. 4080/35 (a)-3(7), dated 24th July, 1926.]

(b) after rule 4, insert the following rule, namely:-

“4A.(1) Where a minor has a guardian appointed by competent authority no person other than such guardian shall be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be appointed.

(2) Where there is no such guardian or where the Court considers that such guardian should not be appointed it shall appoint as guardian for the suit the natural guardian of the minor, if qualified, or where there is no such guardian the person in whose care the minor is, or any other suitable person who has notified the Court of his willingness to act or failing any such person, an officer of the Court.

Explanation.-An officer of the Court shall for the purposes of this sub-rule include a legal practitioner on the roll of the Court.”

Andhra Pradesh.-Same as in Madras.

Calcutta.-In Order XXXII, in rule 4, in sub-rule (4), for the words ‘Where there is no other person fit and willing to act as guardian for the suit”, substitute the words “Except as otherwise provided in this Order”.

[Vide Notification No. 8381-G, dated 13th June, 1927.]

Delhi.-Same as in Punjab.

Gauhati.-Same as in Calcutta.

Himachal Pradesh.-Same as in Punjab.

Karnataka.-In Order XXXII, omit rule 4. (w.e.f. 30-3-1967}

Kerala.-In Order XXXII, in rule 4,-

(i) in sub-rule (3), at the end, insert the following words, namely:-

“Whenever an application is made proposing the name of a person as a guardian for the result a notice in Form No. 11A set forth in Appendix H hereto shall be served on the proposed guardian, unless the applicant himself be the proposed guardian or the proposed guardian consents” (ii) in sub-rule (4), insert the following Explanation, namely:-

“Explanation.-An officer of the Court shall for the purpose of this sub-rule include a pleader of the Court.”

(iii) after sub-rule (4), insert the following sub-rule, namely:-

“(5) When a guardian for the suit of a minor defendant is appointed and it is made to appear to the Court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant, and that the defendant will be prejudiced in his defence thereby, the Court may, from time to time, order the plaintiff to advance moneys to the guardian for the purpose of his defence and all moneys so advanced shall form part of the costs of the plaintiff in the suit. The order shall direct that the guardian, as and when directed, shall file in Court an account of the’ moneys so received by him.”

[Vide Notification No. 81-3312/58, dated 7th April, 1959.] ”

Madhya Pradesh.-In Order XXXII,-

(a) for rule 4, substitute the following rule, namely:-

“4. Who may act as next friend or guardian for the suit.-(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

Provided that the interest of such person is not adverse to that of the minor and that he is not in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.

(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or as his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act in either capacity.”

(b) after rule 4, insert the following rule, namely:-

“4A. Procedure for appointment of guardian for the suit.-{1} No person except the guardian appointed or declared by competent authority, shall, without his consent, be appointed guardian for the suit.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Unless the Court is otherwise satisfied of the fact that the proposed guardian has no interest adverse to that of the minor in the matters in controversy in the suit and that he is a fit person to be so appointed, it shall require such application to be supported by an affidavit verifying the fact.

(4) No order shall be made on any application for the appointment as guardian for the suit of any person, other than a guardian of the minor appointed or declared by competent authority, except upon notice to the proposed guardian for the suit and to any guardian of the minor appointed or declared by competent authority, or, where there is no such guardian, the person in whose care the minor is, and after hearing, any objection that may be urged on a day to be specified in the notice. The Court may, in any case, if it thinks fit, issue notice to the minor also.

(5) Where, on or before the specified day, such guardian fails to appear and express his consent to act as guardian for the suit, or, where he is considered unfit, or disqualified under sub-rule (3), the Court may, in the absence of any other person fit and willing to act, appoint any of its ministerial officer, or a legal practitioner, to be guardian for the suit. If a legal practitioner is appointed guardian for the suit, the Court shall pass an order stating whether he is to conduct the case himself or engage another legal practitioner for the purpose.

(6) In any case in which there is a minor defendant, the Court may direct that a sufficient sum shall be deposited in Court by the plaintiff from which sum the expenses of the minor defendant in the suit including the expenses of a legal practitioner appointed guardian for the suit shall be paid. The costs so incurred by the plaintiff shall be adjusted in accordance with the final order passed in the suit in respect of costs.”

[Vide Notification No. 3409, dated 29th June, 1943.]

Madras.-In Order XXXII, omit rule 4.

Orissa.-Same as in Patna.

Patna.-In Order XXXII, in rule 4, in sub-rule (4), for the words “Where there is no other person fit and willing to act as guardian for the suit”, substitute the following words, namely:-

“Where the person whom the Court after hearing objections, if any, under sub-rule (4) of rule 3, proposes to appoint as guardian for the suit, fails, within, the time fixed in a notice to him to express his consent to be so appointed”.

Punjab.-In Order XXXII, in rule 4,~~

(a) after sub-rule (2), insert the following sub-rule, namely:-

“(2A) Where a minor defendant has no guardian appointed or declared by competent authority, the Court may, subject to the proviso to sub-rule (1), appoint as his guardian for the suit a relative of the minor.

If no person be available who is a relative of the minor the Court shall appoint one of the other defendants, if any and failing such other defendant, shall ordinarily proceed under sub-rule (4) of this rule to appoint one of its officers or a pleader.”

(b) [* * *]

(c) in sub-rule (4), after the words “any of its officers” insert the words “or a pleader” and for the words “such officer”, substitute the words “such persons”.

[Vide Notification No. 566-G, dated 24th November, 1927 as amended by Notification No. 209-R-XI-Y-3, dated 22nd July, 1936) and Notification No. 281-R-XI-Y-3, dated 19th September, 1936.]

5. Representation of minor by next friend or guardian for the suit

(1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2), shall be made by his next friend or by his guardian for the suit.

(2) Every order made in a suit or on any application, before the Court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged, and, where the pleader of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader.

6. Receipt by next friend or guardian for the suit of property under decree for minor

(1) A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other movable property on behalf of a minor either-

(a) by way of compromise before decree or order, or

(b) under a decree or order in favour of the minor.

(2) Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared, is under any disability known to the Court to receive the money or other movable property, the Court shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application:

1[Provided that the Court may, for reasons to be recorded, dispense with such security while granting leave to the next friend or guardian for the suit to receive money or other movable property under a decree or order, where such next friend or guardian-

(a) is the manager of a Hindu undivided family and the decree or order relates to the property or business of the family; or

(b) is the parent of the minor.]

1. Ins. by Act No. 104 of 1976, sec. 79 (w.e.f. 1-2-1977).

7. Agreement or compromise by next friend or guardian for the suit

(1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.

1[(1A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend of the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor:

Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor.]

(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Andhra Pradesh.-In Order XXXII, in rule 7, in sub-rule (2), at the end, insert the following proviso, namely:-

“Provided also that the Court may in its discretion dispense with such security and impose such other condition as it thinks fit, in case where it is satisfied that any money is needed for the maintenance, medical care or education of the minor and the guardian or next friend is unable to furnish security.”

[Vide Notification No. ROC 2756/56, B1, dated 5th December, 1959.]

Karnataka.-In Order XXXII, in rule 7, renumber sub-rule (2) as sub-rule (3) and insert the following sub-rule, namely:-

“(2) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other similar action on behalf of a minor or order person under disability, the affidavit in support of the application shall set out the manner in which the proposed compromise, agreement or other action is likely to affect the interests of the minor or other person under disability and the reason why such compromise, agreement or other action is expected to be for the benefit of the minor or other person under disability; where in such a case the minor or other person under disability is represented by counsel or pleader, the said counsel or pleader shall also file into Court along with the application a certificate to the effect that the agreement or compromise or action proposed is in his opinion for the benefit of the minor or other person under disability.

If the Court grants leave under sub-rule (1) of this rule, the decree or order of the Court shall expressly recite the grant of the leave sought from the Court in respect of the compromise, agreement or other action as aforesaid after consideration of the affidavit and the certificate mentioned above and shall also set out either in the body of the decree itself or in a schedule annexed thereto the terms of the compromise or agreement or the particulars of the other action.” (w.e.f. 30-3-1967)

Kerala.-In Order XXXII, in rule 7, insert sub-rule (1A) as in Madras.

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XXXII, in rule 7, insert the following sub-rule, namely:-

“(1A) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or other person under disability and such minor or other person under disability is represented by counsel or pleader, the counsel or pleader shall file in court with the application a certificate to the effect that the agreement or compromise or action proposed is, in his opinion, for the benefit of the minor or other person under disability. A decree or order for the compromise of a suit, appeal or matter to which a minor or other person under disability is a party shall recite the sanction of the Court thereto and shall set out the terms of the compromise as in Form No. 24 in Appendix D to this Schedule.”

[Vide Dis No 1647 of 1910.]

8. Retirement of next friend

(1) Unless otherwise ordered by the Court, a next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred.

(2) The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness of the person proposed and also that he has no interest adverse to that of the minor.

9. Removal of next friend

(1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikel