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Report No. 27

Order XLVII, rule 7

Order XLVII, rule 7(1) provides that any order granting an application for review may be objected to on the ground that the application was in contravention of the provisions of rule 4, or after the expiration of the period of limitation and without sufficient cause. The effect of this provision as interpreted by the courts is, that it prevents the appellant from objecting (to the order granting review) on grounds other than those mentioned in rule 7, both in a direct appeal from the order granting review and in an appeal from the final decree that may be passed on review1. It is considered, that this restriction is not called for. Suitable modifications have, therefore, been proposed to remove it.

1. For a history of the rule, see Sarju Bala v. A.K. Ghosh, AIR 1046 Cal 530 (FB).

First Schedule, Appendix B, Form No. 2

Regarding the forms of summons to the defendant, a recommendation was made in the Fourteenth Report1for inserting a provision that if the written statement is not presented within the specified time, the suit is liable to be heard ex parte.

This has not been carried out, as it is considered that a provision of that character would not be appropriate.

1. 14th Report, Vol. I.

First Schedule, Appendix E, Form No. 16A

This is new and lays down a form of affidavit of assets to be made by a judgment-debtor where money decree remains unsatisfied1.

1. See amendment proposed to Order 21, rule 41.

First Schedule, Appendix E, Form No. 24

This is consequential1.

1. See Order 21, rule 54, as proposed to be amended.

First Schedule, Appendix E, Form No. 29

This is consequential.1

1. See Order 21, rule 66C 2 (proposed).

First Schedule, Appendix G, Forms regarding intimation by respondent as to defence

In the Fourteenth Report1-2, a recommendation was made to the effect that the respondent should be required to intimate whether he wants to defend the appeal, so that the appellant may know whether he should incur the expenses of preparing a paper-book or a large number of copies thereof. This has, however, not been carried out, as it is felt that it would not serve much useful purpose.

1. Cf. 14th Report, Vol. I.

2. See also Form Nos. 6A, 6B (Appendix G) inserted by Madras.

First Schedule, Appendix H, Form No. 2A (new)

This is consequential1.

1. See Order 16, rule 1 (proposed).

First Schedule, Appendix H, Form Nos. 11 and 11A

The forms for minor defendant and for the guardian have been split up, as it is considered that the two forms should be separate. A combined form, as at present, is somewhat confusing. In re-drafting the forms, the following considerations have been borne in mind:

(i) Under Order XXXII, rule 3(4) as proposed1, it will be discretionary for the court to give notice to the minor:

(ii) Under Order XXXII, rule 3(2) (even as it stands), the application can be made either by the minor or by the plaintiff

See also Form No. 11 as substituted by the former Nagpur High Court, and compare existing Form No. 4.

1. See Order 32, rule 3(4) (proposed).

Omission of illustrations

In previous Reports of the Law Commission, the omission of illustration to the relevant enactments has been recommended.

No such recommendation is being made in the case of the Civil Procedure Code. It is considered that since this is an amending Bill only, such change is not necessary.

(An example of illustrations will be found under Order VON, rule 5.)

Third Party proceedings

1. The Fourteenth Report1 recommended that the High Court may consider the advisability of extending the application of the third-party proceeding to commercial towns like Ahmedabad, Kanpur and Asansol. This can be done under existing section 128(2)(e) of the Civil Procedure Code. Hence no amendment has been proposed.

2. Some High Courts-Andhra Pradesh, Madras and Kerala-have dealt with third-party proceedings in a separate Order, Order VIVA.

See also (i) rules 151-157, Bombay High Court (Original) side rules, 1957 and (ii) Order VIII, rules 23-30, inserted by the Bombay High Court for Bombay City Civil Court only.

1. 14th Report, Vol. I.

Filing forms of process

The recommendations made in the Fourteenth Report1, for the adoption of a rule requiring the parties to file with the plaint or application printed forms of process legibly filled in (leaving only the date of appearance of the opposite party and the date of issue of process blank) can be conveniently implemented by the rules of the High Court. Hence no draft amendment has been prepared.

1. Cf. 14th Report, Vol. I.

Consolidation of suits

The question whether a provision for consolidation of suits is necessary has been considered1. A power to make such rules is already vested in High Courts under section 128(2)(h). In practice, Courts resort to consolidation under their inherent powers2. It is, therefore, unnecessary to insert an express provision in the rule.

1. Cf. Order 17, rule I, County Courts Rules, 1936.

2. See Commentary in Mulla C.P.C. (1953) on section 151.

Code of Civil Procedure, 1908 Back

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