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Report No. 144

Chapter XI

Summary of Recommendations

The following is the summary of the recommendations made in the preceding Chapters:

1. In section 2(2), after numbering the ending Explanation as Explanation 1, and Explanation 2 should be inserted as under:-

"Explanation 2-'Default' includes default of appearance as well as any other kind of default".

(Para 2.1.7)

2. In section 2(11), it is desirable to clarify that when a coparcener in a Hindu undivided family dies, a surviving coparcener shall be deemed to be a legal representative of the deceased.

(Para 2.2.7)

3. In section 10, after the words "relief claimed", the words "in the suit subsequently instituted" should be added.

(Para 2.3.5)

4. In section 11, an Explanation should be added to provide that the provisions of section 11 shall apply to a consent decree.

(Para 2.4.13)

5. In section 20, an Explanation may be added to clarify that the place where the creditor resides should also be treated as the place where the payment is to be made, unless the agreement expressly provides to the contrary.

(Para 2.5.12)

6. In section 34, it is desirable to provide that the Court may, in the interest of justice, direct that the defendant shall pay pendente lite interest at a rate higher than the rate provided for in the contract; this pendente lite interest would be granted by the Court as per practice.

(Para 3.1.8)

7. It is desirable that, with regard to payment of interest, section 34 of the Code should be allowed to operate even regarding suits on negotiable instruments, and that section 79 of the Negotiable Instruments Act should be confined to the period before the institution of the suit. This may be effected by substituting in section 79 of the Negotiable instruments Act, for the words "such date after the institution of a suit", the words "not later than the institution of a suit".

(Para 3.2.7)

8. An Explanation should be inserted below section 39 to provide that nothing in the section shall be construed as authorising the court to execute a decree against a person or property outside the local limits of its jurisdiction.

9. An Explanation should be inserted below section 92 as under:

"Explanation.-It shall not be obligatory for the court before granting leave under this section to issue notice to the party proposed to be used by the person applying for leave."

(Para 4.1.6)

10. Under section 96(3), a proviso should be added as follows:-

"Provided that nothing in this sub-section shall affect any right, in any appeal against a decree passed in a suit, to contest the decree on the ground that the compromise should, or should not, have been recorded."

(Para 4.2.11)

11. A suitable Explanation may be added to section 104(2) on the following lines:

"Explanation.-Where an order is passed by a Single Judge of the High Court in an appeal from an order passed by a court subordinate to the High Court, no further appeal shall lie against the first mentioned order, notwithstanding anything to the contrary contained in the Letters Patent constituting the High Court."

(Para 5.1.11)

12. There should he inserted a suitable Explanation in section 107 to clarify that the provisions of Order VII, rule 11(b) and (c) apply to appeals also. In the alternative, in Order XLI, a rule applying the provisions of Order VII, rule 11 mutatis mutandis to appeals should be inserted as follows:-

(1A) The memorandum of appeal shall be rejected in the following cases:-

(a) where the relief claimed is undervalued and the appellant, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; or

(b) where the relief claimed is properly valued but the memorandum of appeal is written upon paper insufficiently stamped, and the appellant, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the appellant was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend the time would cause grave injustice to the appellant."

The latter course may be more convenient for adoption.

(Paras. 5.2.10 & 5.2.11)

13. An Explanation should be inserted after sub-section (4) in section 136 on the lines indicated below:-

"Explanation.-A warrant of arrest or an order of attachment shall be acted upon only when received through the District Court as provided in sub-section (1)."

14. If a person sues only for possession of immovable property when he might have joined in the same cause of action claims for profits and damages, it should be open to him to sue subsequently for profits which became payable before the institution of the suit. Order II, rule 2 may be suitably amended.

15. In Order II, a new rule 2A should be inserted as follows:-

"2A. Suits filed on the same day on same cause of action-Where a plaintiff sues the defendant on the same day through two or more separate suits in the same court and the suits are based on the same cause of action, then-

(a) the provisions of rule 2 of this Order shall not apply, but

(b) the court shall pass an order for consolidation of the suits and hearing them together in the interests of justice."

(Para 6.2.6)

16. It seems desirable to insert a provision in the Arbitration Act, 1940, as section 13A on the following lines:-

"13A. Party to include whole and all reliefs.-Subject to this provisions of the arbitration agreement, the provisions of rule 2 of Order II in the First Schedule to the Code of Civil Procedure, 1908 shall, so far as may be, apply to arbitrations governed by this Act, as they apply to suits to which the said Code applies."

(Para 6.3.11)

17. Order VII, rule 11, the existing clause (a) should be replaced by the following:-

"(a) where the averments made in the plaint, even assuming them to be true, do not disclose a cause of action."

(Para 6.4.7)

18. An Explanation should be added below Order VIII, rule 6A(1) on the following lines:

"Explanation-Subject to the other provisions of this Code, it is immaterial that the cause of action in the counter-claim is not based on the same transactions as the suit, or that the suit is not for money, or that the counter-claim is not for money."

(Para 6.5.10)

19. In Order IX, rule 13, a further proviso should be inserted below the second proviso as under:-

"Provided also the notwithstanding anything contained in the above proviso, where a copy of the plaint or concise statement has not been attached to the summons as required by rule 2 of Order V, such omission shall be deemed to be sufficient cause for setting aside a decree passed ex parte."

20. In Order XVIII, rule 2(4), after the words "at any stage" which appear at the end, the words, "before the case is closed for judgment" should be added.

(Para. 7.1.4)

21. Order XVIII, rule 3 as it stands at present may be renumbered sub-rule (1), and a new sub-rule (2) may be added as under:-

"(2) The option referred to in sub-rule (1) shall be exercised and communicated to the court before the other party begins to produce its evidence."

(Para. 7.2.10)

22. It should be clarified that the words "act required to be done" occurring in rule 32(5) of Order XXI cover both prohibitory and mandatory injunctions.

(Para. 8.1.12)

23. An Explanation should be added below Order XXI, rule 97 as under:

"Explanation.-Nothing in this rule shall be construed as enabling a purchaser who is not the decree-holder (or any person acting at the instance of such person) to apply under this rule."

(Para 8.2.8)

24. An Order XXIII, rule 1(3), an Explanation should be inserted as follows:

"Explanation.-Where, as a result of the provisions contained in Order XXII of this Schedule, a suit has abated or a part of the claim has abated, the abatement shall not be deemed to constitute a sufficient ground for granting to the plaintiff permission under this sub-rule to withdraw from such suit or from such part of the claim, as the case may be, with liberty to institute a fresh suit."

(Para 8.3.8).

25. In Order XXXIII, a rule may be added at the end to provide as under:-

"The provisions of this Order shall apply to persons other than human beings with such modifications as may be appropriate to facilitate such application."

(Para 9.1.9)

26. Below Order XXXIII, rule 1, an Explanation may be inserted on the following lines:

"Explanation-In a suit to which Order XXXIV applies, the mortgagor's right to redeem the mortgage shall be excluded in calculating his means for the purposes of this rule."

(Para 9.2.10)

27. Order XXXIII, a new rule 4A should be inserted, in these terms:-

"4A. Return of application beyond jurisdiction-The court shall return an application to the applicant for presentation to the proper court if the averments made by the applicant in the application show that the suit would be beyond the jurisdiction of the Court."

(Para 9.3.7)

28. Below Order XXXIV, rule 1, the following may be added as Explanation 2 after renumbering the present Explanation as Explanation 1:-

"Explanation 2.-Nothing in this Order applies to a mortgage, charge, hypothecation, pledge or other security created in respect of movable property."

(Para 9.4.12)

29. The following Explanation may be added to Order XXXIX, rule 2A(1):

"Explanation.-The Court may make an order under this sub-rule, notwithstanding that the injunction or other order has been subsequently discharged or varied or set aside by the court under rule 4 of this Order or by any other Court in appeal or revision."

(Para 9.5.9)

30. In Order XLIII, rule 1, Explanation should be inserted to provide than an appellate order not fall within this rule.

(Para 10.1 9)

The above recommendations we have made would help in resolving the conflicting opinions and interpretations in the field of procedural law in various cases decided by the High Courts. These recommendations involve amendments mainly to the Code of Civil Procedure, 1908 and a couple of incidental amendments to the provisions of the Negotiable Instruments Act, 1881 and the Arbitration Act, 1940 have also been suggested. We believe that implementation of these recommendations would be benefiting the interests of the litigant public and the judiciary in our country.

K.N. Singh,

G.V.G. Krishnamurty,

New Delhi,
Dated: 28th April, 1992.

Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back

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