Report No. 27
Proposals as shown in the Form of Draft Amendments to the Existing Code
(This is a tentative draft only)
In section 1 of the Code of Civil Procedure, 1908 (5 of 1908) (hereinafter referred to as the principal Act), for sub-section (3), the following sub-section shall be substituted, namely:-
"(3) It extends to the whole of India except-
(a) the State of Jammu and Kashmir;
(b) the tribal areas in the State of Assam:
(c) save as hereinafter provided; the Union territory of Laccadive, Minicoy and Amindivi Islands, and the Scheduled areas comprising the East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh:
Provided that sections 36 to 43 and Order XXXIV in the First Schedule shall extend also to the Union territory of Laccadive, Minicoy and Amindivi Islands and the Scheduled areas comprising the East Godavari, West Godavari, and Visakhapatnam Agencies.".
In section 2 of the principal Act in clause (17) in paragraph (b), for the words "the Indian Civil Service", the words "an All-India Service" shall be substituted.
In section 8 of the principal Act, for the words and figures "and 155 to 158", the word and figures "157 and 158" shall be substituted.
After section 21 of the principal Act, the following section shall be inserted, namely:-
'21A. Bar of suit to set aside decree on objection as to place of suing.-No party to a suit shall be allowed to attack the validity of a decree passed in a former suit between the same parties, or between 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" shall denote a suit which has been decided prior to the suit in question, whether or not it was instituted prior thereto.'
In section 24, for sub-section (2), the following sub-section shall be substituted, namely:-
"(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which thereafter tries or disposes of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn.".
For section 25 of the principal Act, the following section shall be substituted, namely:-
"25. Power of Supreme Court to transfer suits.-(1) On the application of the Attorney-General of India or 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 particular 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 motion which shall, except when the applicant is the Attorney-General of India or the Advocate-General, be supported by affidavit or affirmation.
(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 re-try it or proceed from the point at which it was transferred.
[Cf. Section 24(2) C.P.C.]
(4) Where any application for the exercise of the powers conferred by this section is dismissed, 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 may consider 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."
[Cf. existing section 25(2).]
In section 35A of the principal Act,-
(a) in sub-section (1), for the words "excluding an appeal", the words "excluding an appeal or a revision" shall be substituted;
(b) in sub-section (2), for the words "one thousand rupees", the words "two thousand rupees" shall be substituted.
For section 36 of the principal Act, the following section shall be substituted, namely:-
"36. Application to orders.-The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to execution of orders (including payment under an order)".
To section 37 of the principal Act, the following Explanation shall be added, namely:
"Explanation.-The Court of first instance does not cease to have jurisdiction to execute a decree on the ground merely 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".
In section 39 of the principal Act,-
(a) in sub-section (1), after the words "to another court", the words "of competent jurisdiction" shall be inserted;
(b) the following Explanation shall be inserted at the end, namely--
"Explanation.-For the purposes 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'.
Section 42 of the principal Act shall be re-numbered as sub-section (1) thereof, and after sub-section (1) as so re-numbered the following sub-sections shall be inserted, namely:-
"(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 under section 50:
(c) power to order attachment of a decree in accordance with the prescribed procedure.
(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 any of the following powers, namely:-
(a) power to order execution at the instance of the transferee of a decree;
(b) power to grant leave to execute a decree against a firm, in relation to a person, who, though a partner in the firm, has not appeared in his own name or admitted on the pleadings that he is a partner and has not been adjudged to be a partner and has not been served individually as a partner."