Civil Procedure Code (Amendment)
AN ACT TO AMEND THE CIVIL PROCEDURE CODE.
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BE it enacted by the Parliament of the Democratic Socialist Republic of Sri Lanka as follows :
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Short title.
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1.This Act may be cited as the Civil Procedure Code (Amendment) Act, No. 53 of 1980.
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Replacement of section 8 of Chapter 101.
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2.Section 8 of the Civil Procedure Code (hereinafter referred to as the ” principal enactment”) is hereby repealed and the following new section substituted therefor :
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“Procedure of action to be ordinarily regular.
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8.Save and except actions in which it is by this Ordinance or any other law specially provided that proceedings may be taken by way of summary procedure, every action shall commence and proceed by a course of regular procedure, as hereinafter prescribed.”.
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Amendment of section 86 of the principal enactment.
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3.Section 86 of the principal enactment is hereby amended as follows :
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(i) by the repeal of subsection (1) thereof ; and
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(ii) by the insertion, immediately after subsection (2) thereof, of the following new subsection:
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” (2A) At any time prior to the entering of judgment against a defendant for default, the court may, if the plaintiff consents, but not otherwise, set aside any order made on the basis of the default of the defendant and permit him to proceed with his defence as from the stage of default upon such terms as to costs or otherwise as to the court shall appear fit. “.
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Amendment of section 88 of the principal enactment.
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4.Section 88 of the principal enactment is hereby amended, by the insertion, immediately after subsection (2) thereof, of the following new subsection:
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” (3) The provisions of sections 761 and 763 shall, mutatis mutandis, apply to and in relation to the execution of a decree entered upon default, where an order refusing to set aside such decree has been made,”.
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Amendment of section 192 of the principal enactment.
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5. Section 192 of the principal enactment is hereby-amended, by the substitution, for subsection (1) thereof, of the following new subsection :
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” (1) when the action is for a sum of money due to the plaintiff, the court may, in the decree order interest according to the rate agreed on between the parties by the instrument sued on, or in the absence of any such agreement at the rate of twelve per centum per annum to be paid on the principal sum adjudged from the date of the action to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the action, with further interest at such rate on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the court thinks fit.”.
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Replacement of section 196 of the principal enactment.
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6.Section 196 of the principal enactment is hereby repealed and the following new section substituted therefor :
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“Decree when claim in respect of mesne profits-from date of action is allowed.
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196. When the action is for the recovery of .the possession of immovable property, yielding rent or other profit, the court may, whenever the prayer of the plaint asks for damages in respect of mesne profits or rent, provide in. the decree for the payment of money in. lieu of mesne profits or rent in respect of such property from the date of the institution, of the action until the delivery of possession to’ the party in whose favour the decree is made, with interest thereon at such rate not exceeding twelve per centum as the court thinks fit.
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” Mesne profits ” of property mean those profits which the person in wrongful possession of such property actually received, or might, with ordinary diligence, have received therefrom.”
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7. Section 213 of the principal enactment is hereby repealed and the following new section substituted therefor :
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” Court may give interest on costs.
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213. The court may give interest on costs give interest at any rate not exceeding twelve per centum per annum, and may direct that costs, with or without interest, be paid out of, or charged upon, the subject-matter of the action.”.
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Amendment of section 222 of the principal enactment.
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8. Section 222 of the principal enactment is hereby amended, by the insertion, immediately after subsection (2) thereof, of the following new subsection:
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” (3) An application to execute a decree against the judgment-debtor as provided in subsection (2) shall be made, by petition supported by affidavit of the judgment-creditor setting out the material facts, to which application the judgment-debtor shall be made respondent. The court shall after inquiry, if satisfied that the decree should be executed against the judgment-debtor personally, grant such application.”.
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Amendment of section 325 of the principal enactment.
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9.Section 325 of the principal enactment is hereby amended, by the substitution, for subsection (2) thereof, of the following new subsection :
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” (2) When a petition under subsection (1) Is presented, the court may, upon the application of the judgment-creditor made by motion ex parte, direct the Fiscal to publish a notice announcing that the Fiscal has been resisted or obstructed in delivering possession of such property, or that the judgment-creditor has been hindered in taking complete and effectual possession thereof or ousted therefrom, as the case may be, by the judgment-doctor or other person, and calling upon all persons claiming to be in possession of the whole or any part of such property by virtue of any right or interest and who object to possession being delivered to the judgment-creditor to notify their claims to court within fifteen days of the publication of the notice.”.
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Amendment of section 328 of the principal enactment.
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10.Section 326 of the principal enactment is hereby-amended, by the substitution,, for subsection (1) thereof, of the following new subsection :
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” (1) On the hearing of the matter of the petition and the claim made, if any, the court, if satisfied-
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(a) that the resistance, obstruction, hindrance or ouster complained of was occasioned by the judgment-debtor or by some person at his instigation or on his behalf;
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(b) that the resistance, obstruction, hindrance or ouster complained of was occasioned by a person other than the judgment-debtor, and that the claim of such person to be in possession of the property, whether on his own account or on account of some person other than the judgment-debtor, is frivolous’ or vexatious; or
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(c) that the claim made, if any, has not been established, shall direct the judgment-creditor to be put into or restored: to the possession of the property and may, in the case specified in paragraph (a), in, addition sentence the judgment-debtor or such other person to imprisonment for a period not exceeding thirty clays.”.
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Replacement of section 330 of the principal enactment.
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11.Section 330 of: the principal enactment is hereby-repealed and the following new section, substituted there
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“How subsequent obstruction to be dealt with.
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330. Any subsequent resistance or obstruction to the execution of the writ or hindrance to the possession or ouster of the judgment-creditor within a year and a day of the delivery of possession –
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(a) by the judgment-debtor or any other respondent to the petition under section 325, or
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(b) where a notice under subsection (2) of section 325 has been duly published, by any person whosoever,
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shall be punishable as a contempt of court.
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Amendment of section 337 of the principal enactment.
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12.Section 337 of the principal enactment is hereby amended as follows :
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(i) by the substitution, for subsection (1) thereof, of the following new subsection: –
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” (1) No application (whether it be the first or a subsequent application) to execute a decree, not being a decree granting .an injunction, shall be granted after the expiration of ten years from-
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(a) the date of the decree sought to be executed or of the decree, if any, on appeal affirming the same ; or
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(b) where the decree or any subsequent order directs the payment of money or the delivery of property to be made on a specified date or at recurring periods, the date of the default in making the payment or delivering the property in respect of which the applicant. seeks to execute decree.”; and
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(ii) by the insertion, immediately after subsection -(2) thereof, of the following new subsection : –
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” (3) Subject to the provisions contained – in subsection (2), a writ of execution, if unexecuted* shall remain in. force ‘for one year only from its issue, but-
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(a) such writ may at any time before its expiration, be renewed by the judgment-creditor for one year from the date of such renewal and so on from time to time; or
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(b) a fresh writ may at any time after the expiration of an earlier writ be issued,
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till satisfaction of the decree is obtained.”.
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Replacement of section 501 of the principal enactment.
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13.Section 501 of the principal enactment is hereby repealed, and the following new section substituted therefor :
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” This Chapter to apply persons of unsound mind and mentally deficient persons
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501.
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(1) The provisions contained in this Chapter shall, mutatis mutandis, apply in the of unsound case of persons of unsound mind and mentally deficient persons, adjudged to be so under the provisions of this Ordinance or under any law for the time being in force.
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(2) For the purposes of this section, ” persons of unsound mind and mentally deficient persons”, mean persons who have been so adjudged under the provisions of this Ordinance or under any law for the time being in force, or where there has been no such :adjudication, persons of whom the court is satisfied, after inquiry, to be of unsound mind or mentally deficient and incapable of managing their own affairs.”.
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Insertion of new section 580A in the principal enactment.
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14.The following new section is hereby inserted immediately after section 580, and shall have effect as section 560a, of the principal enactment
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“Provisions applicable to mentally deficient persons.
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580A. (1) The provisions contained in this applicable Chapter, other than section 555 shall apply in the case of mentally deficient persons, (2) For the purposes of this section, u mentally deficient persons “, mean persons who are incapable of managing their own affairs by reason of being mentally ill, feeble, infirm or defective, though not adjudicated as persons of unsound mind in accordance ‘with any law for the “time being in force.
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Replacement of section 662 of the principal enactment.
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15.Section 662 of the principal enactment is hereby repealed ” and the following new section substituted therefor :
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“When injunction may be granted.
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“662. Every application for an injunction for any of .the purposes mentioned in section 54 of the Judicature Act, No. 2 of 1978,except in cases where an injunction is prayed for in a. plaint in any action, shall be by petition, and shall be accompanied by an affidavit of the applicant or some other person having knowledge of the facts, containing a statement of the facts on which the application is based.”.
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Replacement of section 745 of the principal enactment.
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16. Section 745 of the principal enactment is hereby repealed and the following new section substituted therefor:
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“Compulsory judicial settlement of accounts in cases of persons of unsound mind, mentally deficient persons and minors.
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745. A petition praying for the settlement of the account of
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(a) the manager of the estate of a person of unsound mind or mentally deficient person ;
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(b) the guardian of the person of a person persons unsound mind or mentally deficient person ;
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(c) the curator of the estate of a minor;
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(d) the guardian of the person of a minor ;
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(e) the next friend’ of a minor plaintiff ;
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(f) the guardian for the action of a minor defendant ;
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and that such persons may be cited to attend the settlement thereof, may m every case ; where such person is required by law to file accounts, be presented to the court having jurisdiction, in the manner in the last preceding Chapter provided, by. any of the following persons respectively namely: |
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In cases falling under paragraphs (a) and (b) by the person of unsound mind or mentally deficient person, after he has been found by adjudication to have ceased to be of unsound mind or mentally deficient, or by any relative or friend of the person of unsound mind or mentally deficient person, or by the executor or administrator of a deceased person of unsound mind or mentally deficient person, or under paragraph (a) by the guardian of tilt person, and under. paragraph (b) by manager of the estate, of a person of unsound mind and mentally deficient person or by any public officer mentioned in section 556 ;
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In cases falling- under paragraphs (c), (d), (e), and. (f) by the minor after he has attained main city, or by the executor or administrator of a deceased minor, or under paragraph (e) by the guardian of the person, and under paragraph (d) by the curator of the estate of a minor ;
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And in any case by the successor of any such manager, curator, guardian, next friend, or guardian for the action. But in eases falling under paragraphs (b), (d), (e:) and (f) proof must be adduced to the satisfaction of the court that the person so required to account has received money or property of the minor for which he is liable to account and has not accounted.
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Replacement of section 749 of the principal enactment.
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17.Section 749 of the principal enactment is hereby repealed and the following new section substituted. therefor:
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” Requisites of petitions relating to persons of unsound mind, mentally deficient persons, minors or trustees.
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749. Every petition by which an application is made to a District Court for the exercise or its powers over or in respect of persons of unsound mind, mentally deficient persons, minors or trustees, as the case may be, shall state expressly that the petitioner- does not know of any person interested in the subject of the petition or in the person sought to be affected by the order prayed for in the petition, who is likely to entertain any objection thereto, other than those who are named as respondents in the petition.
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Replacement of section 752 of the principal enactment.
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18. Section 752 of the principal enactment is hereby repealed and the following new section substituted therefor:
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” Security front managers and curators.
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752, The District Court shall have the like power to make the person appointed manager of the estate of a person of unsound mind, or mentally deficient person, or the person appointed curator of a minor’s estate, give security for the due administration of the estate as it has in the case of administrators of deceased persons estates. “.
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Amendment of section 763 of the principal enactment.
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19, Section 763 of the principal enactment is hereby amended as follows :
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(i) by the renumbering of that section as subsection (1) thereof; and
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(ii) by the insertion, immediately after the re-numbered subsection (1) of that section, of the following new subsection:
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” (2) The Court may order execution to be stayed upon such terms and conditions as it may deem fit, where
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(a) the judgment-debtor satisfies the court that substantial loss may result to the judgment- debtor unless an order for stay of execution is made, and
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(b) security is given by the judgment-debtor for the due performance of such decree or order as may ultimately be binding upon him.”
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Replacement of section 800 of the principal enactment.
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20.Section 800 of the principal enactment is hereby repealed and the following new section substituted therefor :
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“Sentences to be imposed under this Chapter.
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800. The provisions of Article 105 (3) of the Constitution- and sections 18 and 55 of the Judicature Act, No. 2 of 1978 shall, apply to the sentence of fine or imprisonment, as the case may be, that may be imposed on conviction for contempt under this Chapter by the various courts.”.
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Replacement of the Second Schedule to the principal enactment.
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21.The Second Schedule to the principal enactment is hereby repealed and the following new Schedule substituted therefor:
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