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Report No. 27

Order XXXVIII, rule 11A (New)

In Order XXXVIII of the First Schedule to the principal Act, after rule 11, the following rule shall be inserted, namely:-

"11A. Provisions applicable to attachment.-The provisions of this Code applicable to an attachment made in execution of a decree shall, as far as may be, apply to an attachment made before judgment which continues after judgment by virtue of the provisions of rule 11."

Order XXXIX, rule 2

In rule 2 of Order XXXIX of the First Schedule to the principal Act, sub-rules (3) and (4) shall be omitted.

Order XXXIX, rule 2A (New)

After rule 2 of Order XXXIX of the First Schedule to the principal Act, the following rule shall be inserted, namely:-

"2A. Consequences of disobedience or breach of injunction.-(1) In case of disobedience to any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release.

(2) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit to the injured party, and shall pay the balance, if any, to the party entitled thereto."

[Cf. Order XXXIX, rules 2(3) and 2(4).]

Order XXXIX, rule 8

In rule 8 of Order XXXIX of the First Schedule to the principal Act,-

(a) in sub-rule (1), the words "after notice to the defendant" shall be omitted;

(b) in sub-rule (2), the words "after notice to the plaintiff" shall be omitted;

(c) after sub-rule (2), the following sub-rule shall be inserted, namely:-

"(3) The Court shall in all cases, except where it appears that the object of making the order would be defeated by the delay before making the order, direct notice of the application for the same to be given to the opposite party."

[Cf. Order XXXIX, rule 4.]

Order XLI, rule 1

In rule 1 of Order XLI of the First Schedule to the principal Act, to sub-rule (1), the following proviso shall be added, namely:-

"Provided that where two or more cases have been tried together and decided by the same judgment and two or more appeals are filed together against the decree, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment."

Order XLI, rule 3A

After rule 3 of Order XLI of the First Schedule to the principal Act, the following rule shall be inserted, namely:-

"3A. Application for condonation of delay.-(1) When an appeal is presented after the period of limitation prescribed therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisJij the Court that he had sufficient cause for not preferring the appeal within such period.

(2) 11 the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided before the Court proceeds to deal with the appeal under rule 11 or rule 13, as the case may be."

Order XLI, rule 5

In rule 5 of Order XLI of the First Schedule to the principal Act,-

(a) in sub-rule (1), after the words "order stay of execution of such decree", the words "or, if such decree is a preliminary decree, direct that proceedings for passing a final decree shall be stayed, or that such proceedings may continue but the making of the final decree shall be stayed" shall be inserted;

(b) in sub-rule (3), in the opening line and in clause (a), the words "of execution" shall be omitted;

(c) in sub-rule (4), the words "of execution" shall be omitted.

Order XLI, rule 11

To rule 11 of Order XLI of the First Schedule to the principal Act, the following sub-rule shall be added, namely:-

"(4) Where an Appellate Court subordinate to the High Court dismisses an appeal under sub-rule (1), it shall deliver a judgment recording in brief its grounds for doing so, and a formal decree shall be drawn up in accordance with the judgment."

Order XLI, rule 23A (New)

After rule 23 of Order XLI of the First Schedule to the principal Act, the following rule shall be inserted, namely:-

"23A. Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.".

Order XLI, rule 25

In rule 25 of Order XLI of the First Schedule to the principal Act, after the words "and the reasons therefor", the words "within such time as may be fixed by the Appellate Court or extended by it from time to time" shall be inserted.



Code of Civil Procedure, 1908 Back




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