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Report No. 27

Order I, rule 1

The proposed amendment splits up the rule into paragraphs, so as to show separately each condition to be satisfied before the rule applies1.

1. Cf. Order 15, rule 4(1), Revised R.S.C. (1962).

Order I, rule 3

The proposed amendment is intended to split up the conditions and state them in separate paragraphs1. For the history of this provision, see the undermentioned decisions2-3, which discuss the difference between the Indian rule and R.S.C. (1883) Order 16, rule 4.

1. Cf. Order 15, rule 4(1), Revised R.S.C. (1962).

3. Harendra v. Purna, ILR 55 Cal 164: AIR 1928 Cal 199.

4. Bhagvan v. Balku, AIR 1932 Born 1 (3).

Order I, rule 3A (New)

This is new. At present, there is no rule empowering the court to order separate trials where a joinder ofdefandants is likely to cause embarrassment or delay. The desirability of such a rule is obvious1.

5. Cf. Order 15, rule 5(1), Revised RSC (1962).

Order I, rule 8

The following changes have been made:-

(a) A provision has been inserted to the effect that

(i) the decree under this rule shall bind the parties on whose behalf the suit is instituted or defended1.

(ii) the decree, however, shall not be executed against such persons without leave of the court2. As to both these points, see the R.S.C3.

(b) It has been provided, that in granting leave as above the court may consider facts, etc., particular to the person seeking exemption from liability in respect of execution4.

(c) A procedure for obtaining such leave has been briefly dealt with5.

(d) A provision has been added to the effect that the court can direct two or more persons to sue, etc., under this rule on behalf of others. This follows local Amendments6. The direction can be given to one or more persons (as in the Calcutta Amendment) and is not confined to two or more persons, (as in the Bombay Amendment).

(e) A provision has been added to the effect that before a suit under this rule is withdrawn or compromised or the claim abandoned, notice shall be given to the persons interested in the suit. At present, there is no express provision on the subject. But that seems to be the practice of most courts. The under-mentioned decisions discuss the subject7-8-9-10.

As to withdrawal also that seems to be the practice11-12.

(f) Further, a provision has been added to deal with cases where the persons suing, etc., do not proceed with due diligence13.

1. For the present position, see:-

(i) Kodia v. Velandi, ILR 1955 Mad 339: AIR 1955 Mad 281 (FB).

(ii) Moolchandra v. Jagadish, AIR 1955 All 385.

2. For the present law, see Kodia v. Velandi, ILR 1955 Mad 330: AIR 1955 Mad 28 (FB).

3. R.S.C. (Revision) 1962, Order 15, rule 12(3).

4. Cf. R.S.C. Revision (1962), Order 12, rule 12(4).

5. Cf. R.S.C. Revision (1962), Order 15, rule 12(4).

6. Cf the Bombay and Calcutta Amendments.

7. Muthu Karuppa v. Appaua, AIR 1943 Mad 161 (164).

8. Chintaharan v. Gujabdeb, AIR 1951 Cal 456.

9. Biram Parkash v. Narendra Das, AIR 1961 All 266 (275).

10. Chander Bhan v. Des Raj, AIR 1952 Punj 43.

11. Asian Assurance Co. v. Madholal, AIR 1950 Born 378.

12. Kunju Kombi v. Ammi, AIR 1932 Mad 31.

13. Cf section 92, Presidency-towns Insolvency Act, 1909.

Order I, rule 10(2)

The following changes have been proposed, to make the rule comprehensive:

(a) A power to strike off the name of any person who has for any reason ceased to be a proper or necessary party, has been added, on the lines of the R.S.C.1.

(b) A power to remove any person who has been unnecessarily joined, has been added1.

1. Cf. R.S.C. Revision (1962), Order 15, rule 6(2)(a).

Order I, rule 10(5)

Reference to the section of the new Limitation Act (36 of 1963) has been substituted.



Code of Civil Procedure, 1908 Back




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