Report No. 27
101. Questions to be determined.-All questions (including questions relating to right, title or interest in the property) arising between the parties to 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.
102. Rules not applicable to transferee lite pendente.-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.
[Cf. Order XXI, rule 102.]
103. Orders to be treated as decrees.-Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree."
[Order XXI, rule 103, modified.] [Cf. Order XXI, rule 50(3).]
Order XXI, rules 104 and 105 (New)
In order XXI of the First Schedule to the principal Act, after rule 103, the following rules shall be inserted, namely:-
"104. 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 parte 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.
105. Setting aside orders passed ex parte etc.-(1) The applicant against whom an order is made under sub-rule (2) of rule 104 or the opposite party against whom an order is passed ex parte 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 on 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 of the date of the order, or where in the case of an ex parte order the notice was not duly served, the date when the applicant had knowledge of the order.
(4) The provisions of section 5 of the Limitation Act, 1963, (36 of 1963) shall apply to applications under sub-rule (1)."
Order XXII, rule 5
In rule 5 of Order XXII of the First Schedule to the principal Act, the following proviso shall be inserted at the end, namely:-
"Provided that, where such question arises before an Appellate Court, that Court may, before determining it, direct any subordinate court to try the question and to return the evidence, if any, taken on the question together with its finding and reasons therefor and may take the same into consideration in determining the question."
Order XXIII, rule
In rule 1 of Order XXIII of the First Schedule to the principal Act, after sub-rule (3), the following sub-rules shall be inserted, namely:-
"(3A) Where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, the suit shall not be withdrawn under this rule, nor shall any part of the claim be abandoned, without the leave of the Court.
(3B) An application for leave under sub-rule (3A) 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 withdrawal proposed is, in his opinion, for the benefit of the minor or such other person."
Order XXIII, rule 3
In rule 3 of Order XXIII of the First Schedule to the principal Act,-
(a) after the words "lawful agreement or compromise", the words "in writing and signed by the parties" shall be inserted;
(b) the following Explanation shall be inserted at the end, namely:-
"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."
Order XXVI, rule 7
In rule 7 of Order XXVI of the First Schedule to the principal Act, for the words "subject to the provisions of the next following rule", the words and figure "subject to the provisions of rule 8" shall be substituted.