Civil Procedure Code

civil-procedure-code

Cap. 105] CIVIL PROCEDURE CODECHAPTER 105CIVIL PROCEDURE CODEOrdinances AN ORDINANCE TO CONSOLIDATE AND AMEND THE LAW RELATING TO THE PROCEDURE OFNos. 2 of 1889, t h e C iv il C o u r t s .12 of 1895,23 of 1901,12 of 1904,14 of 1907,31 of 1909,9 of 1917,39 of 1921,42 of 1921,21 of 1927,23 of 1927,25 of 1927,15 of 1930,26 of 1930,4 of 1940,18 of 1944,39 of 1945,ActsNos. 7 of 1949,43 of 1949,20 of 1954,48 of 1954,32 of 1957,49 of 1958,3 of 1960,24 of 1961,5 of 1964,23 of 1969,24 of 1969,LawsNos. 12 of 1973,44 of 1973,25 of 1975,19 of 1977,20 of 1977,ActNo. 53 of 1980.CHAPTER IP r e l im in a r yShort title. 1. This Ordinance may be cited as theCivil Procedure Code.*where no 4.f In every case in which no provisionprovision is js ma(je by this Ordinance, the proceduredirectionTto be and practice hitherto in force shall begiven by Court followed, and if any matter of procedure orof Appeal. practice for which no provision is made bythis Ordinance or by any law for the time[1st August, 1890.]being in force shall after this Ordinancecomes into operation arise before any court,such court shall thereupon make applicationto the Court of Appeal for, and the Court ofAppeal shall and is hereby required to give,such special orders and directions thereuponas the justice of the case shall require:Provided always that nothing in thisOrdinance contained shall be held in anyway to affect or modify any special rules ofprocedure which, under or by virtue of the* The Civil Procedure Code No. 2 of 1889 was repealed by the Administration of Justice (Amendment) Law,No. 25 of 1975, with effect from 1st January, 1976, and was revived by section 2 of the Civil Courts Procedure(Special Provisions) Law, No. 19 of 1977, with effect from 15th December, 1977.t Sections 2 and 3 are omitted, as they repeal previous laws relating to procedure in Courts, etc., and have takeneffect.V/70CIVIL PROCEDURE CODE [Cap. 105provisions of any enactment, may have fromtime to time been laid down or prescribed tobe followed by any civil court in Sri Lankain the conduct of any action, matter, orthing of which any such court can lawfullytake cognizance, except in so far as any suchprovisions are by this Ordinance expresslyrepealed or modified.interpretation. 5. The following words and expressionsin this Ordinance shall have the meaningshereby assigned to them, unless there issomething in the subject or contextrepugnant thereto:—“ action ” is a proceeding for theprevention or redress of a wrong;[§2, Law 20 of “ Attorney-General ” includes thel977J Solicitor-General, the AdditionalSolicitor-General and any StateCounsel specially authorized by theAttorney-General to represent theAttorney-General;“ cause of action ” is the wrong for theprevention or redress of which anaction may be brought, andincludes the denial of a right, therefusal to fulfil an obligation, theneglect to perform a duty and theinfliction of an affirmative injury ;“ civil court ” means a court in which civilactions may be brought;“ counsel ” means an attorney-at-lawinstructed by a registered attorney;“ court ” means a Judge empowered bylaw to act judicially alone, or abody of Judges empowered by lawto act judicially as a body, whensuch Judge or body of Judges isacting judicially;“ decree ” means the formal expression ofan adjudication upon any rightclaimed or defence set up in a civilcourt, when such adjudication, sofar as regards the court expressingit, decides the action or appeal;(An order rejecting a plaint is adecree within this definition.)“ foreign court ” means a court situatebeyond the limits of, and nothaving authority in, Sri Lanka;“ foreign judgment ” means the judgmentof a foreign court;“ Judge ” means the presiding officer of a [§2 , Law 20 ofcourt and includes Judges of the ,977-lSupreme Court and of the Court ofAppeal, District Judges, Judges ofFamily Courts and Judges ofPrimary Courts ;“judgment” means the statement givenby the Judge of the grounds of adecree or order;“judgment-creditor” and “ decreeholder ” mean any person in whosefavour a decree or order capable ofexecution has been made, andinclude any transferee of suchdecree or order;“ judgment-debtor” means any personagainst whom a decree or ordercapable of execution has beenmade;“ legal document ” includes all processes, [§2, Law ‘20 ofpleadings, petitions, affidavits, 1977inotices, motions and otherdocuments, proceedings, andwritten communications;“ order ” means the formal expression ofany decision of a civil court whichis not a decree ;“ original court ” includes District Courts,Family Courts and PrimaryCourts;“ Public Trustee” means the Public [§2,Law 2 0 ofTrustee of Sri Lanka appointed 1977Junder the Public Trustee Ordinanceand includes a Deputy PublicTrustee or any other state officergenerally or specially authorized bythe Public Trustee to act on hisbehalf;“ recognized agent ” includes the personsdesignated under that name insection 25 and no others ;V/71Cap. 105] CIVIL PROCEDURE CODE[§2, Law 20 of1977.][§2, Law 20 of1977.][§2, Law 20 of1977.]Action.Procedure ofan action.“ registered attorney ” means an attorneyat-law appointed under Chapter Vby a party or his recognized agentto act on his behalf;“ Registrar ” in relation to a court- includes an Additional, Deputy orAssistant Registrar;“ signed ” includes “ marked ” when theperson making the mark is unableto write;“ the Island ” and “ this Island ” meansrespectively the Island of Sri lanka;“ written” and “ writing” include“ printed ” and “ print ” and“ lithographed ” and “ lithograph ”respectively.PARTIOF ACTIONS IN GENERALCHAPTER IIwill only take effect in the event of his notshowing any good cause against it on a dayappointed therein for the purpose;(b) or a day is appointed by the court forentertaining the matter of the application onthe evidence furnished, and notice is given tothe defendant that he will be heard inopposition to it on that day if he thinksproper to come before the court for thatpurpose.8. Save and except actions in which it is Procedure ofby this Ordinance or any other law specially action to beprovided that proceedings may be taken by °er^ ‘rnlyway of summary procedure, every action [§2,53 ofshall commence and proceed by a course of 19801regular procedure, as hereinafter prescribed.CHAPTER IIIO f t h e C o u r t o f I n s t it u t io n o f A c t io n9. Subject to the pecuniary or other Institution oflimitations prescribed by any law, action actions:shall be instituted in the court within the jnw hat courtlocal limits of whose jurisdiction—G e n e r a l P r o v is io n s6. Every application to a court for reliefor remedy obtainable through the exerciseof the court’s power or authority, orotherwise to invite its interference,constitutes an action.7. The procedure of an action may beeither “ regular ” or “ summary ”.(a) a party defendant resides; or(b) the land in respect of which theaction is brought lies or is situate inwhole or in part; or(c) the cause of action arises; or(d) the contract sought to be enforcedwas made.IllustrationsIn actions of which the procedure is regular, theperson against whom the application is madeis called upon to formally state his answer tothe case which is alleged against him in theapplication before any question of fact isentertained by the court, or its discretionthereon is in any degree exercised.In actions of which the procedure is summary, theapplicant simultaneously with preferring hisapplication supports with proper evidencethe statement of fact made therein; and ifthe court in its discretion considers that aprima facie case is thus made out—When it is alleged to be uncertain within When one ofthe local limits of the jurisdiction of which two or moreof two or more courts any immovable entertajnan. • , , courts mayproperty is situate, any one of those courts action.may, if satisfied that there is ground for thealleged uncertainty, record a statement tothat effect, and thereupon proceed toentertain and dispose of any action relatingto that property; and its decree in the actionshall have the same effect as if the propertywere situate within the local limits of itsjurisdiction:(a) either the order sought is immediately passedagainst the defendant before he has beenafforded an opportunity of opposing it, butsubject to the expressed qualification that itProvided that the action is one withrespect to which the court is competent asregards the nature and value of the action toexercise jurisdiction.V/72CIVIL PROCEDURE CODE [Cap. 105Of applicationfor withdrawaland transfer ofaction.[§ 3, Law 20 of1977.]Stamp duty.Plaintiffs.10. Any of the parties to an actionwhich is pending in any original court may,before trial, and after notice in writing tothe other parties of his intention so to do,apply to the Court of Appeal by motion,which shall be supported by affidavit settingout the grounds on which it is based, for thewithdrawal of such action from the court inwhich it is pending and for the transfer of itfor trial to any other court competent to trythe same in respect of its nature and theamount or value of its subject-matter. Andthe Court of Appeal may, on any suchapplication after hearing such of the partiesas desire to be heard, and on being satisfiedthat such withdrawal and transfer aredesirable for any of the followingreasons:—(a) that a fair and impartial trial cannotbe had in any particular court orplace; or(b) that some question of law of unusualdifficulty is likely to arise; or(c) that it is expedient on any otherground,withdraw any such action pending in anysuch court, and transfer it for trial to anyother such court as aforesaid, upon anyterms that the Court of Appeal shall thinkfit. When the action might have beeninstituted in any one of several courts, thebalance of convenience only shall be deemedsufficient cause for such withdrawal andtransfer to one of the alternative courts.In no case in which any action is sotransferred as aforesaid from one court toanother shall any stamp fee be leviable inthe court to which the action is transferredon any pleading or exhibit on which theproper stamp fee has been paid in the courtfrom which the action is so transferred.CHAPTER IVO f P a r t ie s a n d t h e i r A p p e a r a n c e s ,A p p l ic a t i o n s , a n d A c t s11. All persons may be joined asplaintiffs in whom the right to any reliefclaimed is alleged to exist, whether jointly,severally, or in the alternative, in respect ofthe same cause of action. And judgmentmay be given for such one or more of theplaintiffs as may be found to be entitled torelief for such relief as he or they may beentitled to, without any amendment of theplaint for that purpose. But the defendantthough unsuccessful, shall be entitled to hiscosts occasioned by so joining any personwho is not found entitled to relief, unless thecourt in disposing of the costs of the actionotherwise directs.12. Where two or more persons areentitled to the possession of immovableproperty as joint tenants or tenants incommon, one or more of them maymaintain an action in respect of his or theirundivided shares in the property in any casewhere such an action might be maintainedby all.13. Where an action has been institutedin the name of the wrong person as plaintiff,or where it is doubtful whether it has beeninstituted in the name of the right plaintiff,the court may at any stage of the action, ifsatisfied that the action has been socommenced through a bona fide mistake,and that it is necessary for thedetermination of the real matter in disputeso to do, order any other person or persons,with his or their consent, to be substitutedor added as plaintiff or plaintiffs, upon suchterms as the court thinks just.14. All persons may be joined asdefendants against whom the right to anyrelief is alleged to exist, whether jointly,severally, or in the alternative, in respect ofthe same cause of action. And judgmentmay be given against such one or more ofthe defendants as may be found to be liable,according to their respective liabilities,without any amendment.15. The plaintiff may, at his option, joinas parties to the same action all or any ofthe persons severally, or jointly andseverally, liable on any one contract,including parties to bills of exchange andpromissory notes.16. Where there are numerous partieshaving a common interest in bringing ordefending an action, one or more of suchparties may, with the permission of thecourt, sue or be sued, or may defend in suchWhere jointtenants ortenants incommon.Substitutedand addedplaintiffs.Defendants.Who may bejoined aspartiesdefendant.Wherenumerousparties, onemay sue ordefend for all.V/73Cap. 105] CIVIL PROCEDURE CODENotice.Misjoinder notto defeataction.Partiesimproperlyjoined may bestruck out.Additionof parties.an action on behalf of all parties sointerested. But the court shall in such casegive, at the expense of the party applying soto sue or defend, notice of the institution ofthe action to all such parties, either bypersonal service or (if from the number ofparties or any other cause such service is notreasonably practicable, then) by publicadvertisement, as the court in each case maydirect.17. No action shall be defeated byreason of the misjoinder or non-joinder ofparties, and the court may in every actiondeal with the matter in controversy so far asregards the rights and interests of the partiesactually before it.Nothing in this Ordinance shall bedeemed to enable plaintiffs to join in respectof distinct causes of action.If the consent of anyone who ought to bejoined as a plaintiff cannot be obtained, hemay be made a defendant, the reasonstherefor being stated in the plaint.18. (1) The court may on or before thehearing, upon the application of eitherparty, and on such terms as the court thinksjust, order that the name of any party,whether as plaintiff or as defendantimproperly joined, be struck ou t; and thecourt may at any time, either upon orwithout such application, and on such termsas the court thinks just, order that anyplaintiff be made a defendant, or that anydefendant be made a plaintiff, and that thename of any person who ought to have beenjoined, whether as plaintiff or defendant, orwhose presence before the court may benecessary in order to enable the courteffectually and completely to adjudicateupon and settle all the questions involved inthat action, be added.(2) Every order for such amendment orfor alteration of parties shall state the factsand reasons which together form the groundon which the order is made. And in the caseof a party being added, the added party orparties shall be named, with the designation“ added party ”, in all pleadings or processesor papers entitled in the action and madeafter the date of the order.19. No person shall be allowed to Interventionintervene in a pending action otherwise than not otherwisein pursuance of, and in conformity with, the a**owe<*’provisions of the last preceding section. Andno person shall be added as plaintiff, or asthe next friend of a plaintiff, without hisown consent thereto:Provided however that any person on Except in caseswhose behalf an action is instituted or under sectiondefended under section 16 may apply to the 16’court to be made a party, and all partieswhose names are so added as defendantsshall be served with a summons in mannerhereinafter mentioned, and the proceedingsas against them shall be deemed to havebegun only on the service of such summons.20. The court may give the conduct of Conduct of thethe action to such plaintiff as it deems “ t*0″-proper.21. Where a defendant is added, the Amendment ofplaint shall, unless the court direct Plaintotherwise, be amended in such manner asmay be necessary, and a copy of theamended plaint shall be served on the newdefendant and on the original defendants.21. All objections for want of parties, or Objections forfor joinder of parties who have no interest orm the action, or for misjoinder as co- be taken beforeplaintiffs or co-defendants, shall be taken at hearing,the earliest possible opportunity, and in allcases before the hearing. And any suchobjection not so taken shall be deemed tohave been waived by the defendant.23. When there are more plaintiffs than Plaintiffs (orone, any one or more of them may be defendants)authorized by any other of them to appear, ^oTthe°mtoplead, or act for such other in any act for them,proceeding under this Ordinance; and inlike manner, when there are moredefendants than one, any one or more ofthem may be authorized by any other ofthem to appear, plead, or act for such otherin any such proceeding. The authority shallbe in writing signed by the party giving it,and shall be filed in court:V/74CIVIL PROCEDURE CODE [Cap. 105Appearancesmay be byparty inperson, hisrecognizedagent, orattorneyat-law.Recognizedagents.CHAPTER VO f R e c o g n iz e d A g e n t s a n dA t t o r n e y s -a t -L a w24. Any appearance, application, or actin or to any court, required or authorized bylaw to be made or done by a party,to anaction or appeal in such court, except onlysuch appearances, applications, or acts as byany law for the time being in force onlyattorneys-at-law are authorized to make ordo, and except when by any such lawotherwise expressly provided, may be madeor done by the party in person, or by hisrecognized agent, or by an attorney-at-lawduly appointed by the party or such agent toact on behalf of such party :Provided that any such appearance shallbe made by the party in person, if the courtso directs. An attorney-at-law instructed bya registered attorney for this purpose,represents the registered attorney in court.25. The recognized agents of parties bywhom such appearances and applicationsmay be made or acts may be done are—(a) the Attorney-General, on behalf ofthe State in respect of any court;who is also authorized to depute hispower of appointing a registeredattorney on behalf of the State inrespect to any court to any personby a written document to be signedby the Attorney-General, and to befiled in that court;(b) persons holding general powers ofattorney from parties not residentwithin the local limits of thejurisdiction of the court withinwhich limits the appearance orapplication is made or act done,authorizing them to make suchappearances and applications, anddo such acts on behalf of suchparties; which power, or a copythereof certified by an attorney-atlaw or notary, shall in each case befiled in the court;(c) persons carrying on trade or businessfor and in the names of parties notresident within the local limits ofthe jurisdiction of the court withinwhich limits the appearance orapplication is made or act done, inmatters connected with such tradeor business only, where no otheragent is expressly authorized tomake such appearances andapplications and do such acts.26. (1) Processes served on therecognized agent of a party to an action orappeal shall be as effectual as if the samehad been served on the party-in person,unless the court otherwise directs.(2) The provisions of this Ordinance forthe service of process on a party to anaction shall apply to the service of processon his recognized agent.27. (1) The appointment of a registeredattorney to make any appearance orapplication, or do any act as aforesaid, shallbe in writing signed by the client, and shallbe filed in court; and every suchappointment shall contain an address atwhich service of any process which underthe provisions of this Chapter may be servedon a registered attorney, instead of the partywhom he represents, may be made.(2) When so filed, it shall be in forceuntil revoked with the leave of the court andafter notice to the registered attorney by awriting signed by the client and filed incourt, or until the client dies, or until theregistered attorney dies, is removed, orsuspended, or otherwise becomes incapableto act, or until all proceedings in the actionare ended and judgment satisfied so far asregards the client.(3) No counsel shall be required topresent any document empowering him toact. The Attorney-General may appoint aregistered attorney to act specially in anyparticular case or to act generally on behalfof the State.28. If any such registered attorney as inthe last preceding section is mentioned shalldie, or be removed or suspended, orotherwise become incapable to act asaforesaid, at any time before judgment, nofurther proceeding shall be taken in theaction against the party for whom he[§4, Law 20 of1977.]Processesserved onrecognizedagent,effectual.Appointmentof registeredattorney.Death orincapacity ofregisteredattorney.V/75Cap. 105] CIVIL PROCEDURE CODEService onregisteredattorney.Agent toaccept service.Agent toaccept servicein action uponmortgage ofimmovableproperty.[§2, Law 12 of1973.]appeared until thirty days after notice toappoint another registered attorney hasbeen given to that party either personally orin such other manner as the court directs.29. Any process served on the registeredattorney of any party or left at the office orordinary residence of such registeredattorney, relative to an action or appeal,except where the same is for the personalappearance of the party, shall be presumedto be duly communicated and made knownto the party whom the registered attorneyrepresents; and, unless the court otherwisedirects, shall be as effectual for all purposesin relation to the action or appeal as if thesame had been given to, or served on, theparty in person.30. Besides the recognized agentsdescribed in section 25, any person residingwithin the jurisdiction of the court may beappointed an agent to accept service ofprocess. Such appointment may be specialor general, and shall be made by aninstrument in writing signed by theprincipal, which shall contain an address atwhich such service may be made, and which,or, if the appointment be general, a dulyattested copy thereof, shall be filed in court.No appointment under this section shallbe of any force or effect for the purpose ofenabling or authorizing process to be servedon an agent so appointed in any action torecover money due upon the mortgage ofimmovable property.30A. (1) The mortgagor of anyimmovable property may make applicationfor the registration of the address of anyregistered attorney or any person for theservice of process in any action upon themortgage. The application shall be madesubstantially in the form No. 11A in theFirst Schedule.make a new entry in the register and cancelthe registration of the previous address.(4) The fee for registration of theaddress for service or for a change of suchaddress shall be fifty cents, with an additionof ten cents for each folio after the first inwhich the address is to be registered.CHAPTER VIO f t h e S c o p e a n d S u b j e c t o f A c t io n33. * Every regular action shall, as far as Regular action,practicable, be so framed as to afford howt°beground for a final decision upon the subjects framed’in dispute, and so to prevent furtherlitigation concerning them.34. (1) Every action shall include the Every actionwhole of the claim which the plaintiff is shall includeentitled to make in respect of the cause of waction; but a plaintiff may relinquish anyportion of his claim in order to bring theaction within the jurisdiction of any court.(2) If a plaintiff omits to sue in respectof, or intentionally relinquishes any portionof, his claim, he shall not afterwards sue inrespect of the portion so omitted orrelinquished. A person entitled to more thanone remedy in respect of the same cause ofaction may sue for all or any of hisremedies; but if he omits (except with theleave of the court obtained before thehearing) to sue for any of such remedies, heshall not afterwards sue for the remedy soomitted.(3) For the purpose of this section, anobligation and a collateral security for itsperformance shall be deemed to constitutebut one cause of action.(2) The address for service shall beregistered in or in continuation of the folioin which is registered the mortgage of theimmovable property.(3) Where the applicant declares in hisapplication that a previously registeredaddress is cancelled, the Registrar shallIllustrationA lets a house to B at a yearly rent of Rs. 1,000. Therent for the whole of the two years 1886 and1887 is due and unpaid. A sues B only forthe rent due for one of those years. A shallnot afterwards sue B for the rent due for theother year.* Sections 31 and 32 in Chapter V are repealed by Law No. 20 of 1977.V/76CIVIL PROCEDURE CODE [Cap. 105Joinder ofclaims inactions forimmovableproperty.In actionsagainstexecutors, &c.In other cases.Exception:court mayorderseparation.35. (1) In an action for the recovery ofimmovable property, or to obtain adeclaration of title to immovable property,no other claim, or any cause of action, shallbe made unless with the leave of the court,except—(a) claims in respect of mesne profits orarrears of rent in respect of theproperty claimed;(b ) damages for breach of any contractunder which the property or anypart thereof is held; orconsequential on the trespass whichconstitutes the cause of action; and(c) claims by a mortgagee to enforce anyof his remedies under the mortgage.Example.—A sues B to recover land upon theallegation that the land belongs to C, andthat he, A, has bought it of C. A makes C aparty defendant; but he cannot, withoutleave of the court, join with this claim analternative claim for damages against C fornon-performance of his contract of sale.(2) No claim by or against an executor,administrator, or heir, as such, shall in anyaction be joined with claims by or againsthim personally unless the last-mentionedclaims are alleged to arise with reference tothe estate in respect of which the plaintiff ordefendant sues or is sued as executor,administrator, or heir, or are such as he wasentitled to or liable for jointly with thedeceased person whom be represents.36. (1) Subject to the rules containedin the last section, the plaintiff may unite inthe same action several causes of actionagainst the same defendant or the samedefendants jointly, and any plaintiffs havingcauses of action in which they are jointlyinterested against the same defendant ordefendants may unite such causes of actionin the same action.But if it appears to the court that anysuch causes of action cannot beconveniently tried or disposed of together,the court may, at any time before thehearing, of its own motion or on theapplication of any defendant, in both caseseither in the presence of, or upon notice to,the plaintiff, or at any subsequent stage ofthe action if the parties agree, order separatetrials of any such causes of action to be had,or make such other order as may benecessary or expedient for the separatedisposal thereof.(2) When causes of action are united,the jurisdiction of the court as regards theaction shall depend on the amount or valueof the aggregate subject-matters at the dateof instituting the action, whether or not anorder has been made under the secondparagraph of subsection (1).37. Any defendant alleging that theplaintiff has united in the same actionseveral causes of action, which cannot beconveniently disposed of in one action, mayat any time before the hearing apply to thecourt for an order confining the action tosuch of the causes of action as may beconveniently disposed of in one action.38. (1) If, on the hearing of suchapplication, it appears to the court that thecauses of action are such as cannot all beconveniently disposed of in one action, thecourt may order any of such causes ofaction to be excluded, and may direct theplaint-to be amended accordingly, and maymake such order as to costs as may be just.(2) Every amendment made under thissection shall be attested by the signature ofthe Judge.CHAPTER VIIO f t h e M o d e o f I n s t it u t i o n o f A c t io n39. Every action of regular procedureshall be instituted by presenting a dulystamped written plaint to the court or tosuch officer as the court shall appoint in thisbehalf.40. The plaint shall be distinctly writtenupon good and suitable paper, and shallcontain the following particulars :—(a) the name of the court and date offiling the plaint;(b ) the name, description, and place ofresidence of the plaintiff;Application bydefendant insuch cases.Order of courtthereon.Regular actionto commenceby plaint.[§ 6 , Law 20 of1977.]Requisites ofplaint.[§ 7, Law 20 of1977.]V/77Cap. 105] CIVIL PROCEDURE CODE(c) the name, description, and the place illustrationsof residence of the defendant so faras the same can be ascertained ; (a) A sues as B’s executor. The plaint must statethat A has proved B’s will.(d) a plain and concise statement of thecircumstances constituting eachcause of action, and where andwhen it arose. Such statement shallbe set forth in duly numberedparagraphs; and where two ormore causes of action are set out,the statement of the circumstancesconstituting each cause of actionmust be separate, and numbered;(b) A sues as C’s administrator. The plaint muststate that A has taken out administration toC’s estate.43. The plaint must show that the Plaint mustdefendant is or claims to be interested in the showsubject-matter, and that he is liable to be fnteresfandcalled upon to answer the plaintiffs liability to bedemand. sued-(e) a demand of the relief which theplaintiff claims; and(/) if the plaintiff has allowed a set-offor relinquished a portion of hisclaim, the amount so allowed orrelinquished.44. If the cause of action arose beyondthe period ordinarily allowed by any law forinstituting the action, the plaint must showthe ground upon which exemption fromsuch law is claimed.45. Every plaint shall contain a Jurisdiction ofstatement of facts setting out the jurisdiction court t0 beof the court to try and determine the claimin respect of which the action is brought.Exemptionfrom bar fromlapse of time tobe shown.If the plaintiff seeks the recovery ofmoney, the plaint must state the preciseamount, so far as the case admits. In anaction for a specific chattel, or to establish,recover, or enforce any right, status, orprivilege, or for mesne profits, or for theamount which will be found due to theplaintiff on taking unsettled accountsbetween him and the defendant, the plaintneed only state approximately the value ofthe chattel, right, status, or privilege, or theamount sued for.Land sued for 41. When the claim made in the actionto be described js for some specific portion of land, or forbounds or some share or interest m a specific portionsketch. of land, then the portion of land must bedescribed in the plaint so far as possible byreference to physical metes and bounds, orby reference to a sufficient sketch, map, orplan to be appended to the plaint, and notby name only.46. (1) Every plaint presented by a Subscription ofregistered attorney on behalf of a plaintiff Plaintshall be subscribed by such registeredattorney. In every other case in which aplaint is presented, it shall be subscribed bythe plaintiff; and his signature shall beverified by the signature of some officerauthorized by the court in that behalf.(2) Before the plaint (whether presented Court mayby the plaintiff or by a registered attorney in refuse t0his behalf) is allowed to be filed, the court plaintmay, if in its discretion it shall think fit,refuse to entertain the same for any of thefollowing reasons, namely :—(a) if it does not state correctly, andwithout prolixity, the severalparticulars hereinbefore required tobe specified therein;(b) if it contains any particulars otherthan those so required;Plaintiff suingin arepresentativecharacter mustshow that thecharacter hasaccrued to him.42. When the plaintiff sues in arepresentative character, the plaint shouldshow, not only that he has an actual existinginterest in the subject-matter, but that hehas taken the steps necessary to enable himto institute an action concerning it.(c) if it is not subscribed, or subscribedand verified, as the case may be, ashereinbefore required;(d ) if it does not disclose a cause ofaction;V/78CIVIL PROCEDURE CODE [C ap .105And mayreject.Where plaintpresented towrong court.(e) if it is not framed in accordance withsection 33;(/) if it is wrongly framed by reason ofnon-joinder or misjoinder ofparties, or because the plaintiff hasjoined causes of action which oughtnot to be joindd in the same action,and may return the same for amendmentthen and there, or within such time as maybe fixed by the court, upon such terms as tothe payment of costs occasioned by theamendment as the court thinks fit:Provided that no amendment shall beallowed which would have the effect ofconverting an action of one character intoan action of another and inconsistentcharacter;And provided further, that in each of thefollowing cases, namely :—(g) where the relief sought isundervalued, and the plaintiff, onbeing required by the court tocorrect the valuation within a timeto be fixed by the court, fails to doso ;(h) where the relief sought is properlyvalued, but the plaint is writtenupon paper insufficiently stamped,and the plaintiff on being requiredby the court to supply the requisitestamps within a time to be fixed bythe court fails to do so ;(0 when the action appears from thestatement in the plaint to be barredby any positive rule of law;(j) when the plaint having been returnedfor amendment within a time fixedby the court is not amended withinsuch time,the plaint shall be rejected; but suchrejection shall not of its own force precludethe plaintiff from presenting a fresh plaint inrespect of the same cause of action.47. In every case where an action hasbeen instituted in a court not havingjurisdiction by reason of the amount orvalue involved, or by reason of theconditions made necessary to the institutionof an action in any particular court bysection 9 not being present, the plaint shallbe returned to be presented to the propercourt.48. Every order returning or rejecting aplaint shall specify the date when the plaintwas presented and so returned or rejected,the name of the person by whom it waspresented and whether such person wasplaintiff or registered attorney, and the faultor defect constituting the ground of returnor rejection; and every such order shall bein writing signed by the Judge, and Hied ofrecord.49. (1) The plaintiff shall endorse onthe plaint, or annex thereto, a memorandum•of the documents, if any, which he hasproduced along with i t ; and if the plaint isadmitted, shall present as many copies onunstamped paper of the plaint as there aredefendants, translated into the language ofeach defendant whose language is not thelanguage of the court; unless the court, byreason of the length of the plaint or thenumber of the defendants or for any othersufficient reason, permits him to present alike number of concise statements of thenature of the claim made, or of the relief orremedy required in the action, in which casehe shall present such statements.(2) If the plaintiff sues or the defendantor any of the defendants is sued in arepresentative capacity, such statement shallshow in what capacity such plaintiff ordefendant sues or is sued; and the plaintiffmay by leave of the court amend suchstatements so as to make them correspondwith the plaint.Such memorandum and copies orstatements shall be examined by theRegistrar of the court and signed by him ifhe finds them correct.50. If a plaintiff sues upon a documentin his possession or power, he shall produceit in court when the plaint is presented, andshall at the same time deliver the documentor a copy thereof to be filed with the plaint.Order onrejection ofplaint.Memorandumof documentsto be endorsedon plaint.[§8 , Law 20 of1977.]Plaintiff toproduce withplaintdocument suedon.V/79Cap. 105] CIVIL PROCEDURE CODETo annex listof otherdocuments.And to statewheredocument notin hispossession is.Action on lostnegotiableinstrument.Document notproduced withplaintinadmissibleafterwardswithout leave.[§9, Law 20 of1977.]Summons.[§10, Law 20 of1977.]51. If he relies on any other documents(whether in his possession or power or not)as evidence in support of his claim, he shallenter such documents in a list to be addedor annexed to the plaint.52. In the case of any such documentnot being in his possession or power, heshall, if possible, state in whose possessionor power it is.53. In the case of any action foundedupon a bill of exchange, promissory note,cheque, or any negotiable instrument, if itbe proved that the instrument is lost, and ifan indemnity be given by the plaintiff, to thesatisfaction of the court, against the claimsof any other person upon such instrument,the court may make such decree as it wouldhave made if the plaintiff had produced theinstrument in court when the plaint waspresented, and had at the same timedelivered a copy of the instrument to befiled with the plaint.54. A document which ought to beproduced in court by the plaintiff when theplaint is presented, or to be entered in thelist to be added or annexed to the plaint,and which is not produced or enteredaccordingly, shall not, without the leave ofthe court, be received in evidence on hisbehalf at the hearing of the action.CHAPTER VIIIO f t h e I s s u e a n d S e r v ic e o fS u m m o n s55. (1) Upon the plaint being filed andthe copies or concise statements required bysection 49 presented, the court shall ordersummons in the form No. 16 in the FirstSchedule to issue, signed by the Registrar ofthe court, requiring the defendant to answerthe plaint on or before a day to be specifiedin the summons. The summons, togetherwith such copy or concise statement eachtranslated into the language of thedefendant where his language is not thelanguage of the court, attached thereto,shall be delivered under a precept from thecourt in the form No. 17 in the saidSchedule, or to the like effect, to the Fiscalof the court or to the Fiscal of a court oflike jurisdiction within the local limits ofwhose jurisdiction the defendant resides,who shall cause the same to be duly servedon the defendant, or on each defendant, ifmore than one, and shall as hereinafterprovided, return the same and the executionthereof to the court, duly verified by theofficer to whom the actual service thereofhas been entrusted.(2) (a) Every party to an action, notappearing by a registered attorney, shall onor before the date specified in the summonsdeliver to the Registrar a memorandumsubstantially in the form No. 16a in theFirst Schedule setting out an address(hereinafter referred to as the “ registeredaddress ”) for the service on him of thenotice under section 80 and any other legaldocument required to be served on a partyunder the provisions of this Ordinanceunless otherwise provided. Every party shallwith such memorandum tender to theRegistrar stamps to the value required tocover cost of service of such notice byregistered post.(b) Where a party appears by aregistered attorney the address of theregistered attorney contained in hisappointment shall be deemed to be theregistered address of such party; and suchregistered attorney shall, on or before thedate specified in the summons, tender to theRegistrar stamps to the value required tocover cost of service by registered post, ofthe notice under section 80.(c) The despatch by registered post tothe registered address of a party of thenotice under section 80, and of any otherlegal document required to be served on himshall be deemed to be sufficient service.(d) The Registrar shall keep andmaintain a list of the registered addressesfurnished to him under this subsection,which list shall be filed as part of the recordof the case.V/80CIVIL PROCEDURE CODE [Cap. 105Personalservice ofsummons,what is.Service to bepersonal ifpracticable;otherwise ascourt maydirect.SERVICE59. * Subject to the several provisions asto service hereinafter in Chapter XXIIIcontained, service of the summons shall bemade by delivering or tendering to thedefendant personally a duplicate thereof.60. Whenever it may be practicable, theservice of summons shall be made on thedefendant in person; but if, after reasonableexertion, the Fiscal is unable to effectpersonal service, he shall report suchinability to the court in a fair-written returnto the precept, having the summonsattached thereto as an exhibit, and it shallbe competent for the court, on beingsatisfied by evidence adduced before it thatthe defendant is within Sri Lanka, toprescribe any other mode of service as anequivalent for personal service :Provided, however, that where such areturn is made by the Fiscal in an action forthe recovery of money due on the mortgageof immovable property, the court shall notunder the preceding provisions of thissection have the power to prescribe anyother mode of service as an equivalent forpersonal service, but the followingprovisions shall apply whether or not thecourt is satisfied that the defendant is withinSri Lanka:—(a) if the court is satisfied upon acertificate filed in that behalf by theregistered attorney for the plaintiffthat the mortgagor has notregistered an address for serviceunder section 30a , or if such anaddress having been registered thecourt is satisfied that the Fiscal wasunable to effect service on suchagent under section 64a , the courtshall upon application made by theplaintiff, order that copies of thesummons in such language as thecourt may consider appropriateshall be affixed by the Fiscal in atleast three conspicuous places uponthe mortgaged property and at thecourt-house, and may in itsdiscretion direct such other acts orthings to be done as the court mayconsider appropriate (including in acase where an address has beenregistered under section 30a , thesending of a copy of the summonsby registered post to that address);(b) service effected in the mannerspecified in paragraph (a) shall bedeemed to be service on thedefendant.61. The service substituted by order ofthe court shall be as effectual as if it hadbeen made on the defendant personally.62. Whenever service is substituted byorder of the court, the court shall fix a dayon or before which the defendant shall filehis answer and comply with the otherrequirements of section 55.63. When there are more defendantsthan one, service of the summons shall bemade on each defendant.64. When a defendant has an agentappointed under section 30 empowered toaccept service, service of summons on suchagent shall be sufficient. And in the case ofan action against partners relative to apartnership transaction, or to an actionablewrong in respect of which relief is claimablefrom the partners, as a firm, each partner isan agent so empowered of each otherpartner, as is also the person (if any) notbeing a partner, who has the management ofthe business of the partnership at theprincipal place of such business within thelocal limits of the court’s ordinaryjurisdiction.Nothing in the preceding provisions ofthis section shall be deemed to authorizesummons in an action to recover moneysdue on a mortgage of immovable propertyto be served on any agent appointed undersection 30.64A. Where the mortgagor hasregistered the address of an agent undersection 30A, service of summons may bemade on such agent and shall be sufficient.* Sections 56, 57 and 58 are repealed by Law No. 20 of 1977.V/81Substitutedservice to be aseffectual aspersonal.Substitutedservice.[§12, Law 20 of1977.]When more •defendantsthan one,service oneach.Agents toaccept service;partners, andmanager.Service onagent inmortgageaction.Cap. 105] CIVIL PROCEDURE CODEWhendefendant outof jurisdictionhas managerwithin it.Service onagent in chargeof immovableproperty.Misdescriptionnot to vitiatesummons, &c.Service ondefendant injail.Service out ofSri Lanka.Applicationfor, how made.65. In an action relating to any businessor work against a person who does notreside within the local limits of thejurisdiction of the court from which thesummons issued, service on any manager oragent who at the time of the servicepersonally carries on such business or workfor such person within such limits shall bedeemed good service; and for the purposeof this section the master of a ship is theagent of his owner or charterer.70. Every order giving leave to effect Order for, tosuch service shall direct the mode of service, prescribe modeand direct that the defendant shall, on or [§ 13, u w 20 ofbefore the date specified in such summons, 1977.]file his answer and comply with the otherrequirements of section 55.71. A summons under sections 69 and Form of70 shall be in the form No. 18 in the First summons.Schedule.CHAPTER IX66. In an action to obtain reliefrespecting or compensation for wrong toimmovable property, if the service cannot bemade on the defendant in person, and thedefendant has no agent empowered toaccept service, it may be made on any agentof the defendant in charge of the property.67. No misnomer or misdescription ofany person or place in any such summons,order, or process shall vitiate the same,provided that the person or place be thereindescribed as he or it is commonly known,and provided that such misnomer ormisdescription be not such as to mislead theparty served therewith.68. If the defendant be in jail, thesummons shall be delivered by the Fiscal tothe officer in charge of the jail in which thedefendant is confined, and such officer shallcause the summons to be served upon thedefendant.The summons shall be returned throughthe Fiscal to the court from which it isissued, with a statement of the serviceendorsed thereon, and signed by the officerin charge of the jail.O f F il in g A n s w e r [§14, Law 20 of1977.]72. If the defendant admits the claim of Judgmentthe plaintiff, the court shall give judgment “S3*1151against the defendant according to the a S d lim ^ fadmission so made. Such admission shall be the plaintiff,in writing, signed by the defendant and his t§15>Law20 ofsignature attested by an attorney-at-law. 197773. If the defendant does not admit the Answer to beplaintiffs claim, he shall himself, or his in writing,registered attorney shall on his behalf, 1977’ jLaw20 ofdeliver to the court a duly stamped writtenanswer.75.* Every such answer shall be Requisites ofdistinctly written upon good and suitable answer,paper, shall be duly stamped, shall be 1977 ]LaW 2° °fsubscribed by the defendant or his dulyconstituted representative as in the case of aplaint is provided for the plaintiffssubscription, or if he is represented by aregistered attorney, by such registeredattorney, and shall contain the followingparticulars:—(a) the name of the court, the number ofthe case, and the date of filing theanswer;69. Service of a summons out of SriLanka may be allowed by the court in allcases in which the court has jurisdiction.Every application for an order for leave toserve such summons on a defendant out ofSri Lanka shall be by motion and shall besupported by evidence (by affidavit orotherwise) showing in what place or countrysuch defendant is or may probably befound, and the grounds on which theapplication is made.(1b) the name of the plaintiff;(c) the name, description, and residenceof the defendant;(d) a statement admitting or denying theseveral averments of the plaint, andsetting out in detail plainly andconcisely the matters of fact andlaw, and the circumstances of thecase upon which the defendant* Section 74 is repealed by Law No. 20 of 1977.V/82CIVIL PROCEDURE CODE [C a p .105Jurisdiction ofcourt to bespeciallytraversed.Rejection andamendment ofanswer.Copy ofanswer to bedelivered toplaintiff or hisregisteredattorney.[§18, Law 20 of1977.]means to rely for his defence; thisstatement shall be drawn in dulynumbered paragraphs, referring bynumber, where necessary, to theparagraphs of the plaint;(e) when the defendant sets up a claimin reconvention the answer mustcontain a plain and concisestatement of the facts constitutingthe ground of such claim which thedefendant makes in reconvention. Aclaim in reconvention duly set up inthe answer shall have the sameeffect as a plaint in a cross action soas to enable the court to pronouncea final judgment in the same actionboth on the original and on thecross claim; but it shall not affectthe lien upon the amount decreed ofany registered attorney in respect ofthe costs payable to him under thedecree.76. If the defendant intends to disputethe averment in the plaint as to thejurisdiction of the court, he must do so by aseparate and distinct plea, expresslytraversing such averment.77. If any answer is substantiallydefective in any of the particularshereinbefore defined, or is argumentative orprolix, or contains matter irrelevant to theaction, the court may, by an order to beendorsed thereon, reject the same or returnit to the party by whom it was made, foramendment within a time to be fixed by thecourt, imposing such terms as to costs orotherwise as the court thinks fit.If the answer is rejected or leftunamended as ordered, the defendant shallbe regarded as having failed to file answer.The order so endorsed shall specify theground of the rejection.78. A copy of the answer shall be servedon the plaintiff, or each of the plaintiffs, ifmore than one, or his or their registeredattorney.CHAPTER XO f t h e R e p l ic a t i o n a n d F u r t h e rP l e a d in g s79. Except in the case of a claim by adefendant in reconvention, no pleading afteranswer shall be filed except by order ofcourt on special motion to be made afterdue notice to the other side, and before theday appointed for the hearing of the action,upon such terms as to costs and thepostponement of the hearing of the actionas the court shall think fit. Such order shallnot be made (except in the case of a claim inreconvention on the part of the defendant)unless the court is satisfied on such motionthat the real issues between the partiescannot be conveniently raised without suchfurther pleading. All pleadings after answershall be subject to the rules prescribed bysection 75 relative to the form and substanceof the answer, so far as the same can bemade applicable, and copies of suchpleadings shall be served on the oppositeparty or his registered attorney.CHAPTER XIO f F ix in g D a y o f T r i a l80. (1) Forthwith on the expiration ofthe time allowed for the filing of thedefendant’s answer, or, where a replicationis permitted, on the last day of the timeallowed for filing such replication, andwhether the same is filed or not, the courtshall appoint a day for the case to be calledin order to fix the day of trial of the actionand shall give notice thereof in writing byregistered post to all parties who havefurnished a registered address and tenderedthe cost of service of such notice as providedby subsection (2) of section 55.(2) On the appointed day undersubsection ( 1) of this section or where itappears to the court that the case is notready for trial, on any later day to which thematter shall on that day have beenpostponed, the court shall fix the day oftrial in open court.(3) The court may subsequently onapplication made by either party and afterhearing both parties, or after proof of noticeWhenreplication maybe allowed.[§19, Law 20 of1977.]Day of trial.[§20, Law 20 of1977.]V/83Cap. 105] CIVIL PROCEDURE CODEA reasonablenumber ofcases to befixed for eachday.Postponement.Undisposed ofcases to beplaced at thehead of theroll.[§21, Law 20 of1977.][§ 22, Law 20of 1977.]Default ofdefendant.[§23, Law 20 of1977.]of motion to the absent party, direct thatthe day for the hearing of any case shall beadvanced or deferred.81. The court shall, in fixing the day ofhearing, be careful not to appoint morecases for one day than there is a probabilityof the court getting through on that day.82. When any case is in its turn calledon for hearing upon the day appointedtherefor, the court may, for sufficient causeto be specified in its written order,- directthat the hearing be postponed to a daywhich shall be fixed in the order, upon suchterms as to costs or otherwise as the courtshall think fit:Provided that the court may in itsdiscretion take and deal with a case out ofits order in the cause list on any day forgood reason to be adjudicated upon andrecorded by the court before entering uponthe case.83. (1) The cases in any day’s cause listnot disposed of on that day, by reason ofwant of time, will be placed at the head ofthe next court-day’s cause list, unless theJudge directs otherwise.the action, and if the court is satisfied thatthe defendant has been duly served withsummons, or has received due notice of theday fixed for the subsequent filing of theanswer, or of the day fixed for the hearingof the action, as the case may be, and if, onthe occasion of such default of thedefendant, the plaintiff appears, then thecourt shall proceed to hear the case ex parteforthwith, or on such other day as the courtmay fix.85. (1) The plaintiff may place Procedure inevidence before the court in support of his e*Par,e trialclaim by affidavit, or by oral testimony and 1977] w 0move for judgment, and the court, ifsatisfied that the plaintiff is entitled to therelief claimed by him,, either in its entirety orsubject to modification, may enter suchjudgment in favour of the plaintiff as to itshall seem proper, and enter decreeaccordingly.(2) Where the court is of opinion thatthe entirety of the relief claimed by theplaintiff cannot be granted, the court shallhear the plaintiff before modifying the reliefclaimed.(2) As soon as the cause list for any dayis prepared, legibly-written copies of it inthe language of the court and the languageor languages of the parties shall be placed insome fit and conspicuous place outside thecourt-house, so that the suitors and allothers interested may be enabled readily tobe informed of the contents of the same.CHAPTER XIIO f t h e C o n s e q u e n c e s a n d C u r e (w h e nPERMISSIBLE) OF DEFAULT IN PLEADINGo r A p p e a r i n g84. If the defendant fails to file hisanswer on or before the day fixed for thefiling of the answer, or on or before the dayfixed for the subsequent filing of the answeror having filed his answer, if he fails toappear on the day fixed for the hearing of(3) Where there are several defendantsof whom one or more file answer andanother or others of whom fail to fileanswer, the plaintiff may move for judgmentagainst such of the defendants as may be indefault without prejudice to his right toproceed with the action against such of thedefendants as may have filed answer. Theprovisions of this subsection shall applynotwithstanding that the defendants arejointly liable upon a bill of exchange,promissory note or cheque.(4) The court shall cause a copy of thedecree entered under this section to beserved on the defendant in the mannerprescribed for the service of summons. Suchcopy of the decree shall bear anendorsement that any application to setaside the decree under subsection (2) ofsection 86 shall be made to court withinfourteen days of such service.V/84CIVIL PROCEDURE CODE [Cap. 105If defendantexcuses hisdefault, anyorder orjudgment to beset aside.[§23, Law 20 of1977.][§3, 53 of1980.]Nonappearance ofplaintiff.[§23, Law 20 of1977.]86.* (2) Where, within fourteen daysof the service of the decree entered againsthim for default, the defendant with notice tothe plaintiff makes application to andthereafter satisfies court, that he hadreasonable grounds for such default, thecourt shall set aside the judgment anddecree and permit the defendant to proceedwith his defence as from the stage of defaultupon such terms as to costs or otherwise asto the court shall appear proper.(2 a ) At any time prior to the entering ofjudgment against a defendant for default,the court may, if the plaintiff consents, butnot otherwise, set aside any order made onthe basis of the default of the defendant andpermit him to proceed with his defence asfrom the stage of default upon such terms asto costs or otherwise as to the court shallappear fit.(3) Every application under this sectionshall be made by petition supported byaffidavit.■87. (1) Where the plaintiff or whereboth the plaintiff and the defendant makedefault in appearing on the day fixed for thetrial, the court shall dismiss the plaintiffsaction.(2) Where an action has been dismissedunder this section, the plaintiff shall beprecluded from bringing a fresh action inrespect of the same cause of action.(3) The plaintiff may apply within areasonable time from the date of dismissal,by way of petition supported by affidavit, tohave the dismissal set aside, and if on thehearing of such application, of which thedefendant shall be given notice, the court issatisfied that there were reasonable groundsfor the non-appearance of the plaintiff, thecourt shall make order setting aside thedismissal upon such terms as to costs orotherwise as it thinks fit, and shall appoint aday for proceeding with the action as fromthe stage at which the dismissal for defaultwas made.88. (1) No appeal shall lie against anyjudgment entered upon default.(2) The order setting aside or refusing toset aside the judgment entered upon defaultshall be accompanied by a judgmentadjudicating upon the facts and specifyingthe grounds upon which it is made, andshall be liable to an appeal to the Court ofAppeal.(3) The provisions of sections 761 and763 shall, mutatis mutandis, apply to and inrelation to the execution of a decree enteredupon default, where an order refusing to setaside such decree has been made.89. In the case of an action against twoor more defendants alleged to be severallyliable, where a summons is served upon anyof them, the plaintiff may proceed againstthe person or persons served as if no otherdefendant were named in the summons.Where it is served upon all of them, theplaintiff may take judgment against one ormore of them, where he would be entitled tojudgment if the action was against him orthem alone. Where judgment is so taken theplaintiff may proceed in the same actionagainst the other defendants.90. In the case of an action where thereare more defendants than one, the courtshall not be obliged to pass a decree fordefault against a defendant for failing toappear at a stage of the action, providedthat one defendant at least appears at thatstage against whom the action mustproceed.CHAPTER XIIIO f M o t io n s91. Every application made to the courtin the course of an action, incidentalthereto, and not a step in the regularprocedure, shall be made by motion by theapplicant in person or his counsel orregistered attorney, and a memorandum inwriting of such motion shall be at the sametime delivered to the court.* Subsection (1) is repealed by Act No. 53 of 1980.V/85No appealagainstjudgment fordefault butorder settingaside orrefusing to setaside judgmentappealable.[§23, Law 20 of1977.][§4, 53 of 1980.]Where two ormoredefendantsseverally liable.One of manydefendantsappearing, nodecree fordefault need bepassed againstothers.Motions[§24, Law 20 of1977.]Cap. 105] CIVIL PROCEDURE CODEPostponements,adjournmentsand extensionsof time.[§25, Law 20 of1977.]91A. (1) Where a day is fixed or timeappointed for doing any act or taking anyproceeding by a party to the action, thecourt may, from time to time, upon themotion of such party and, if sufficient causeis shown, fix another day or enlarge orabridge the time appointed, upon suchterms, if any, as to it may seem proper.(2) The day may be refixed or the timeenlarged although the application for thesame is not made until after the expirationof the day or time fixed or appointed.otherwise, as it may think fit, all pleadingsand processes in the action, by way ofaddition, or of alteration, or of omission.And the amendments or additions shall beclearly written on the face of the pleading orprocess affected by the order; or if thiscannot conveniently be done, a fair draft ofthe dobument as altered shall be appendedto the document intended to be amended,and every such amendment or alterationshall be initialled by the Judge.CHAPTER XVI(3) The court may, for sufficient cause,either on the application of the parties or ofits own motion, advance, postpone oradjourn the trial to any other date uponsuch terms as to costs or otherwise as to itshall seem proper.(4) Where a date is fixed on or beforewhich an act has to be done by a party tothe action or a return has to be made to acommission issued by the court, the caseshall be called in open court on such datefor the purpose of making an appropriateorder in connection therewith or relatingthereto.CHAPTER XIVO f t h e J o u r n a lJournal. 92. With the institution of the action thecourt shall commence a journal entitled asof the action, in which shall be minuted, asthey occur, all the events in the course of theaction, i.e., the original application, andevery subsequent step, proceeding, andorder; each minute shall be signed anddated by the Judge, and the journal so keptshall be the principal record of the action.CHAPTER XVO f A m e n d m e n tAmendments 93. At any hearing of the action, or anyof pleadings. time in the presence of, or after reasonablenotice to, all the parties to the action beforefinal judgment, the court shall have fullpower of amending in its discretion, andupon such terms as to costs andpostponement of day for filing answer orreplication or for hearing of cause, orO f D is c o v e r y , I n s p e c t io n , P r o d u c t io n ,I m p o u n d in g , a n d R e t u r n o fD o c u m e n t s94. (1) Any party may at any time Interrogatories,before hearing, by leave of the court to beobtained on motion ex parte, deliverthrough the court interrogatories in writingfor the examination of the opposite party,or,” where there are more opposite partiesthan one, any one or more of such parties,with a note at the foot thereof stating whichof such interrogatories each of such personsis required to answer:Provided that no party shall deliver morethan one set of interrogatories to the sameperson without the permission of the court,and that no defendant shall deliverinterrogatories for the examination of theplaintiff unless such defendant haspreviously tendered his answer, and suchanswer has been received and placed on therecord.(2) For the purposes of this Chapter,“ opposite party”, means a party betweenwhom and the party interrogating an issuehas been raised.95. Interrogatories delivered under the Service oflast section shall be served on the registered interroga,ories’attorney (if any) of the party interrogated,or in the manner hereinbefore provided forthe service of summons, and the provisionsherein contained with regard to service ofsummons shall, in the latter case, apply, sofar as may be practicable.96. The court, in adjusting the costs of Cost ofthe action, shall at the instance of any party, unreasonableinquire, or cause inquiry to be made, into to be borne byth e p r o p r i e t y of del i ver i ng such party in fault.V/86CIVIL PROCEDURE CODE [Cap. 105Interrogatoriesto company,&c.When partymay refuse toanswer.To beanswered byaffidavit.Application forfurther answer.Notice toadmitgenuineness ofdocuments.interrogatories; and if it thinks that suchinterrogatories have been deliveredunreasonably, vexatiously, or at improperlength, the costs occasioned by the saidinterrogatories, and the answers thereto,shall be borne by the party in fault.97. If any party to an action is a .bodycorporate or a company, whetherincorporated or not, or any other body ofpersons empowered by law to sue or besued, whether in its own name or in thename of any officer or other person, anyopposite party may apply to the court for anorder allowing him to deliver interrogatoriesto any member or officer of suchcorporation, company, or body, and anorder may be made accordingly.98. Any party called upon to answerinterrogatories, whether by himself or byany such member or officer, may refuse toanswer any interrogatory on the ground thatit is scandalous or irrelevant, or is not putbona fide for the purposes of the action, orthat the answer will tend to criminatehimself, or that the matter inquired after isnot sufficiently material at that stage of theaction, or on any other like ground.just exceptions to the admissibility of suchdocument in evidence) the genuineness ofany document material to the action.(2) The admission sljpll also be made inwriting, signed by the other party or hisregistered attorney, and filed in court.(3) If such notice be not given, no costsof proving such document shall be allowed,unless the court otherwise orders.(4) If such notice is not complied withwithin four days after its being served, andthe court thinks it reasonable that theadmission should have been made, the partyrefusing shall bear the expense of provingsuch document, whatever may be the resultof the action.102. (1) The court may, at any time Order forduring the pendency therein of any action, discovery oforder any party to the action to declare byaffidavit all the documents which are orhave been in his possession or powerrelating to any matter in question in theaction, and any party to the action may, atany time before the hearing, apply to thecourt for a like order.99. Interrogatories shall be answered byaffidavit to be filed in court within ten daysfrom the service thereof, or within suchfurther time as the court may allow.100. If any person interrogated omits orrefuses to answer or answers insufficientlyany interrogatory, the party interrogatingmay apply to the court for an orderrequiring him to answer or to answerfurther, as the case may be. And an ordermay be made requiring him to answer or toanswer further, either by an affidavit or byviva voce examination, as the court maydirect:Provided that the court shall not requirean answer to an interrogatory which in itsopinion need not have been answered undersection 98.101. (1) Either party may, by a noticeissued by order of court, to be obtained onmotion ex parte within a reasonable timenot less than ten days before the hearing,require the other party to admit (saving all(2) Every affidavit made under thissection shall specify which, if any, of thedocuments therein mentioned the declarantobjects to produce, together with thegrounds of such objection.103. The court may, at any time during Order forthe pendency therein of any action, order production ofthe production by any party thereto of such cume s’of the documents in his possession or powerrelating to any matter in question in suchaction or proceeding as the court thinksright; and the court may deal with suchdocuments when produced in such manneras appears just.103A. (1) In any action to which theState is a party, the State may also berequired to make discovery or giveinspection of documents.(2) The provisions of subsection (1) shallnot prejudice the right of the State towithhold any document on the ground thatin the opinion of the Minister in charge ofState requiredto makediscovery orgive inspectionof documentsunder certaincircumstances.[§26, Law 20 of1977.]V/87Cap. 105] CIVIL PROCEDURE CODENotice toproducedocuments forinspection.Time and placeof suchproduction tobe specified byparty receivingnotice.Otherwise,order forinspection tobe made bycourt.Application fororder to besupported byaffidavit.the subject to which the document relates,the public interest would suffer by suchdisclosure.(c) that they are in the possession orpower of the party against whomthe application is made.104. (1) Any*party to an action may,at any time before or at the hearing thereof,by motion ex parte, obtain an order of courtfor notice to issue to any other party inwhose pleadings or affidavits reference ismade to any document, to produce suchdocument for the inspection of the partygiving such notice, or of his registeredattorney, and to permit such party orregistered attorney to take copies thereof.(2) No party failing to comply with suchnotice shall afterwards be at liberty to putany such document in evidence on his behalfin such action, unless he satisfies the courttha.t such document relates only to his owntitle, or that he had some other andsufficient cause for not complying with suchnotice.105. The party to whom such notice isgiven shall, within ten days from the receiptthereof, deliver through the court to theparty giving the same a notice stating a timewithin three days from such delivery atwhich the documents, or such of them as hedoes not object to produce, may beinspected at his registered attorney’s officeor some other convenient place, and statingwhich, if any, of the documents he objectsto produce, and on what grounds.108. If the party from whom discovery Court mayof any kind or inspection is sought objects reserveto the same or any part thereof, and if the d^overyor’0court is satisfied that the right of such inspection,discovery or inspection depends on thedetermination of any issue or question indispute in the action, or that for any otherreason it is desirable that any such issue orquestion should be determined beforedeciding upon the right to the discovery orinspection, the court may order that theissue or question be determined first, andreserve the question as to the discovery orinspection.109. (1) If any party fails to comply Consequencewith any order under this Chapter to answer of notinterrogatories, or for discovery, order underproduction, or inspection, which has been this Chapter,duly served, he shall, if a plaintiff, be liableto have his action dismissed for want ofprosecution, and if a defendant, to have hisdefence, if any, struck out, and to be placedin the same position as if he had notappeared and answered.And the party interrogating or seekingdiscovery, production, or inspection mayapply to the court for an order to this effect,and. the court may make such orderaccordingly.106. If any party served with noticeunder section 104 omits to give notice undersection 105 of the time for inspection, orobjects to give inspection, or names aninconvenient place for inspection, the partydesiring it may apply to the court for anorder of inspection.(2) Any party failing to comply with anyorder under this Chapter to answerinterrogatories, or for discovery,production, or inspection which has beenserved personally upon him, shall also bedeemed guilty of the offence of contempt ofcourt.107. Except in the case of documentsreferred to in any pleading or affidavit ofthe party against whom the application ismade, or disclosed in his affidavit ofdocuments, such application shall befounded upon an affidavit showing—(a) of what documents inspection issought,(b) that the party applying is entitled toinspect them, and110. (1) The court may of its own Court mayaccord, or in its discretion upon the u«pect recordsapplication of any of the parties to anaction, send for, either from its own recordsor from any other court, the record of anyother action or proceeding, and inspect thesame.(2) Every application made under thissection shall (unless the court otherwisedirects) be supported by an affidavit of theapplicant or his registered attorney, showingV/88CIVIL PROCEDURE CODE [Cap. 105Parties to beready with alldocuments attrial.Documentcalled for andnot producedshall not bereceivedafterwards.Documents tobe received bycourt.Rejection ofirrelevant orinadmissibledocuments.No documentsto be placed onrecord unlessproved.how the record is material to the action inwhich the application is made, and that theapplicant cannot, without unreasonabledelay or expense, obtain a dulyauthenticated copy of the record or of suchportion thereof as the applicant requires, orthat the production of- the original isnecessary for the purposes of justice.(3) Nothing in this section shall bedeemed to enable the court to use inevidence any document which by the law ofevidence in force in Sri Lanka would beinadmissible in the action.111. The parties or their registeredattorneys shall bring with them and have inreadiness at the hearing of the action, to beproduced when called for by the court, allthe documentary evidence of everydescription in their possession or power, onwhich they intend to rely, and which has notalready been filed in court, and alldocuments which the court at any timebefore such hearing has ordered to beproduced.112. No documentary evidence in thepossession or power of any party whichshould have been, but has not been,produced in accordance with therequirements of section 111, shall bereceived at any subsequent stage of theproceedings, unless good cause be shown tothe satisfaction of the court for the nonproduction thereof. And the court onreceiving any such evidence shall record itsreason for so doing.113. (1) The court shall receive thedocuments respectively produced by theparties at the hearing, provided that thedocuments produced by each party beaccompanied by an accurate list thereof.(2) The court may at any stage of theaction reject any document which itconsiders irrelevant or otherwiseinadmissible, recording the grounds of suchrejection.114. (1) No document shall be placedon the record unless it has been proved oradmitted in accordance with the law ofevidence for the time being in force.(2) Every document so proved or.admitted shall be endorsed with somenumber or letter sufficient to identify it. TheJudge shall then make an entry on therecord to the effect that such document wasproved against or admitted by (as the casemay be) the person against whom it is used,and shall in such entry refer to suchdocument by such number or letter in sucha way as to identify it with the document soproved or admitted. The document shallthen be filed as part of the record.(3) All documents produced at thehearing and not so proved or admitted shallbe returned to the parties respectivelyproducing them.115. N o t w i t h s t a n d i n g anyt hi n gcontained in section 114, the court may, if itsees sufficient cause, direct any document orbook produced before it in any action to beimpounded and kept in the custody of anofficer of the court for such period andsubject to such conditions as the courtthinks fit.116. (1) When an action has beendisposed of, or when the time for preferringan appeal from the decree has elapsed, or ifan appeal has been preferred, then after theappeal has been disposed of, any person,whether a party to the action or not,desirous of receiving back any documentproduced by him in the action, and placedon the record, shall, unless the document isimpounded under section 115, be entitled toreceive back the same :Provided that a document may bereturned at any time if the person applyingfor such return deliver to the proper officera certified copy of such document to besubstituted for the original;And provided further, that no documentshall be returned which by force of thedecree has become void or useless.(2) On the return of a document whichhas been admitted in evidence, a receiptshall be given by the party receiving it, in areceipt book to be kept for the purpose.Proveddocuments tobe marked andfiled.Documentswhich are notproved to bereturned toparties.Court mayorder anydocument to beimpounded.Whendocumentadmitted inevidence maybe returned.Certaindocuments notto be returned.Receipt forreturneddocuments.V/ 89Cap. 105] CIVIL PROCEDURE CODEProvisions asto documentsapply to othermaterial117. The provisions herein contained asto documents shall, so far as may be, applyto all other material objects producible as(«) a list of witnesses to be called bysuch party at the trial, andobjects. evidence.TRANSLATIONS OF DOCUMENTS(b) a list of the documents relied uponby such party and to be produced atthe trial.Translations of 118. No translation of any documentdocuments. tendered in evidence in any court shall bepermitted to be read as a translation of suchdocument, unless the same shall be signedby an interpreter of the Supreme Court, orthe Court of Appeal, or by a Governmentsworn translator, or by a sworn translatoror interpreter of some District Court,Family Court or Primary Court.Who shall bedeemed atranslator.119. No person other than an interpreterof the Supreme Court, or the Court ofAppeal, or a Government sworn translator,or an interpreter of a District Court, orFamily Court or Primary Court, shall bedeemed to be a translator of any courtunless he shall have received a certificatefrom the Judge of such court that he iscompetent to fulfil the duties of a translator,and shall have taken an oath before suchJudge faithfully to perform the duties of hisoffice.Fees oftranslators.120. No such translator as aforesaidshall be entitled to have or recover inrespect of fees for any translation any sumof money in excess of the following rates,namely:—122. The party applying for a summons Payment ofshall, before the summons is granted, and witness’swithin a period to be fixed by the court, pay expenses’into court, or give security for payment of,such a sum of money as appears to the courtto be sufficient to defray the travelling andother expenses of the person summoned, inpassing to and from the court in which he isrequired to attend, and for one day’sattendance:Provided that in the case of a witnessresiding within four miles of the court atwhich his attendance is required, no suchpayment shall be made nor security given;And provided further that the making ofany such payment and the giving of anysuch security shall in no case be a conditionprecedent to the issue of a summons, but inevery case (except the case of a witnessresiding within four miles from the court)where summons issues without suchpayment having been made or securitygiven, the witness shall be informed on theface of the summons that such is the case,and that it is not obligatory on him toattend.[§27, Law 20 of For every folio of 120 words .. Rs. 1.25For every fractional part of a folie Rs. 1.25CHAPTER XVII[§28, Law 20 of O F WITNESSES AND DOCUMENTS1977.]Summonses to 121. (1) The parties may, after thewitnesses. summons has been delivered for service onthe defendant, obtain, on application to thecourt or to such officer as the courtappoints in that behalf, before the day fixedfor the hearing, summonses to personswhose attendance is required either to giveevidence or to produce documents.(2) Every party to an action shall, notless than fifteen days before the date fixedfor the trial of an action, file or cause to befiled in court after notice to the oppositeparty—123. The sum so paid into court, or so Witness’ssecured, shall at least be paid or tendered tothe person summoned at the time when he is ^ves evidence,called on to give his evidence, if he demandsthe same.124. If it appears to the court or to such Court mayofficer as it appoints in this behalf that the or^ ra. . . . r~ . sufficient sumsum paid into court is not sufficient to cover t0 be paidsuch expenses, the court may direct suchfurther sum to be paid to the personsummoned as appears to be necessary onthat account; and in case of default inpayment, may, by writ issued to the Fiscal,order such sum to be levied by sequestrationand sale of the movable property of theparty obtaining the summons as ishereinafter provided; or the court maydischarge the person summoned withoutLists ofwitnesses anddocuments.[§29, Law 20 of1977.]V/90CIVIL PROCEDURE CODE [Cap. 105Expenses ofdetention.Summons tospecify time,place, andpurpose ofattendance.Summons toproducedocument.Person in courtmay berequired toproduce adocument.Service ofsummons.requiring him to give evidence; or may bothorder such levy and discharge such personas aforesaid.125. If it is necessary to detain theperson summoned for a longer period thanone day, the court may from time to timeorder the party at whose instance he wassummoned to pay into court such sum as issufficient to defray the expenses of hisdetention for such further period; and indefault of such deposit being made, may, bywrit issued to the Fiscal, order such sum tobe levied by sequestration and sale of themovable property of the party at whoseinstance he was summoned; or the courtmay discharge the person summonedwithout requiring him to give evidence; ormay both order such levy and dischargesuch person as aforesaid.126. (1) Every summons for theattendance of a person to give evidence orproduce a document shall specify the timeand place at which he is required to attendand also whether his attendance is requiredfor the purpose of giving evidence or toproduce a document, or for both purposes;and any particular document which theperson summoned is called on to produceshall be described in the summons withreasonable accuracy.(2) If money has been deposited orsecurity given for his expenses under theprovisions of section 122, the summons shallcontain a statement to that effect.127. Any person may be summoned toproduce a document without beingsummoned to give evidence; and any personsummoned merely to produce a documentshall be deemed to have complied with thesummons if he cause such document to beproduced, instead of attending personally toproduce the same.128. Any person present in court may berequired by the court to give evidence, or toproduce any document then and there in hisactual possession or power.129. Every summons to a person to giveevidence or produce a document shall beserved as nearly as may be in the mannerhereinbefore prescribed for the service ofsummons on the defendant; and the rulescontained in this Ordinance as to proof ofservice of summons on the defendant shallapply in case of all summonses served underthis section.130. The service shall in all cases bemade a sufficient time before the timespecified in the summons for the attendanceof the person summoned, to allow him areasonable time for preparation and fortravelling to the place at which hisattendance is required.131. (1) If the Fiscal returns to thecourt that the summons for the attendanceof a person, either to give evidence or toproduce a document, cannot be served, thecourt may take evidence touching thenon-service.And upon being satisfied that suchevidence or production is material, and thatthe person for whose attendance thesummons has been issued is absconding, orkeeping out of the way for the purpose ofavoiding the service of summons, the courtmay in its discretion either issue a warrantfor the apprehension of such witness or mayissue a proclamation requiring him to attendto give evidence, or produce the document,at a time and place to be named therein;and a copy of such proclamation shall beaffixed on the outer door of the house inwhich he ordinarily resides.(2) If he does not attend at the time andplace named in such proclamation, the courtmay in its discretion, at the instance of theparty on whose application the summonswas issued make an order for thesequestration of the property of the personwhose attendance is required, to suchamount as the court thinks fit, notexceeding the amount of the costs ofsequestration and of the fine which may beimposed under section 133.132. If, on the sequestration of hisproperty, such person appears and satisfiesthe court that he did not abscond or keepout of the way to avoid service of thesummons, and that he had not notice of theproclamation in time to attend at the timeand place named therein, the court shalldirect that the property be released fromService mustaffordreasonabletime forattendance.Procedure tobe followedwhen summonscannot beserved.Proclaimedwitness howdealt with.If witnessappears,sequestrationmay bewithdrawn.V/91Cap. 105] CIVIL PROCEDURE CODEProcedurewhen witnessfails to appear.Court maysummon andexamine anyperson aswitness.Personsummonedmust attend attime and placenamed in thesummons.When witnessmay depart.sequestration, and shall make such order asto the costs of the sequestration as it thinksfit.133. If such person does not appear, orappearing, fails to satisfy the court that hedid not abscond or keep out of the way toavoid service of the summons, and that hehad not notice of the proclamation in timeto attend at the time and place namedtherein, the court may impose upon himsuch fine, in the case of the Primary Courtnot exceeding fifty rupees, and in the case ofthe District Court not exceeding twohundred rupees, as the court thinks fit,having regard to his condition in life and allthe circumstances of the case; and mayorder the property sequestered, or any partthereof, to be sold for the purpose ofsatisfying all costs incurred in consequenceof such sequestration, together with theamount of the said fine, if any :Provided that if the person whoseattendance is required pays into court thecosts and the fine as aforesaid, the courtshall order the property to be released fromsequestration.134. Subject to the rules of thisOrdinance as to attendance and appearance,if the court at any time thinks it necessary toexamine any person other than a party tothe action, and not named as a witness by aparty to the action, the court may, of itsown motion, cause such person to besummoned as a witness to give evidence, orto produce any document in his possession,on a day to be appointed ; and may examinehim as a witness, or require him to producesuch document.135. Subject as last aforesaid, whoeveris summoned to appear and give evidence inan action must attend at the time and placenamed in the summons for that purpose,and whoever is summoned to produce adocument must either attend to produce it,or cause it to be produced, at such time andplace.136. No person so summoned andattending shall depart unless and until—(a) he has been examined or hasproduced the document and thecourt has risen; or(b) he has obtained the court’s leave todepart.137. (1) If any person on whom a Witness maysummons to give evidence or produce a be arresteddocument has been served fails to comply ^i^lianoewith the summons, or if any person so with summons,summoned and attending departs incontravention of section 136, the court mayorder him to be arrested and brought beforethe court:Provided that no such order shall bemade when the court has reason to believethat the person so failing had a lawfulexcuse for such failure.(2) When any person so brought before Non-complithe court fails to satisfy it that he had a ancewithlawful excuse for not complying with the withoutTawfulsummons, he shall be deemed to be guilty of excuse deemedthe offence of contempt of court, and to be contemptpunishable therefor. of court’138. If any person so apprehended and Court maybrought before the court cannot, owing to release arrestedthe absence of the parties or any of them,, * r ,, witness on bail,give the evidence or produce the documentwhich he has been summoned to give orproduce, the court may require him to givereasonable bail or other security for hisappearance at such time and place as itthinks fit, and on such bail or security beinggiven may release him.139. If any person so failing to comply Procedurewith a summons absconds or keeps out of when witnessthe way, so that he cannot be apprehendedand brought before the court, the provisionsof sections 131, 132, and 133 shall, mutatismutandis, apply.140. If any party to an action being Court maypresent in court refuses, without lawful pass decreeexcuse, when required by the court, to give refusTn^uT^veevidence, or to produce any document then evidence,and there in his actual possession or power,the court may in its discretion either pass adecree against him, or make such otherorder in relation to the action as the courtthinks fit, or may punish him as for acontempt of court.141. (1) Whenever any party to an Rules as toaction is required to give evidence or witnesses to, , , , apply to a partyproduce a document, the rules as to summoned towitnesses contained in this Ordinance shall give evidence.apply to him, so far as they are applicable.V/92CIVIL PROCEDURE CODE [Cap. 105Privilege fromarrest ofwitness.Adjournments.Non-appearance of aparty on theadjourned day.Default ofparty to carryout purpose ofadjournment.(2) Nothing in this Chapter containedshall be deemed in any way to contravene oraffect the provisions of the Proof of PublicDocuments Ordinance except in so far asthe same may be hereby expressly repealedor modified.142. Any person duly and in good faithsummoned or ordered to attend for thepurpose of being examined in a case isprivileged from arrest in a civil action orspecial proceeding while going to,remaining at, and returning from the placewhere he is required to attend.CHAPTER XVIIIO f A d j o u r n m e n t s143. (1) The court may, if sufficientcause be shown, at any stage of the actiongrant time to the parties, or to any of them,and may from time to time adjourn thehearing of the action.(2) In all such cases the court shall fix aday for the further hearing of the action,and may make such order as it thinks fitwith respect to the costs occasioned by theadjournment:CHAPTER XIXO f t h e T r ia l146. (1) On the day fixed for the Determining ofhearing of the action, or on any other day to issueswhich the hearing is adjourned, if the partiesare agreed as to the question of fact or oflaw to be decided between them, they maystate the same in the form of an issue, andthe court shall proceed to determine thesame.(2) If the parties, however, are not soagreed, the court shall, upon the allegationsmade in the plaint, or in answer tointerrogatories delivered in the action, orupon the contents of documents producedby either party, and after such examinationof the parties as may appear necessary,ascertain upon what material propositionsof fact or of law the parties are at variance,and shall thereupon proceed to record theissues on which the right decision of the caseappears to the court to depend.(3) Nothing in this section requires thecourt to frame and record issues when thedefendant makes no defence.Provided that, when the hearing ofevidence has once begun, the hearing of theaction shall be continued from day to dayuntil all the witnesses in attendance havebeen examined, unless the court finds theadjournment of the hearing to be necessaryfor reasons to be recorded and signed by theJudge.147. When issues both of law and of fact Trial of issuesarise in the same action, and the court is of of law firstopinion that the case may be disposed of onthe issues of law only, it shall try thoseissues first, and for that purpose may, if itthinks fit, postpone the settlement of theissues of fact until after the issue of law havebeen determined.144. If on any day to which the hearingof the action is adjourned, the parties or anyof them fail to appear, the court mayproceed to dispose of the action in one ofthe modes directed in that behalf byChapter XII, or make such other order as itthinks fit.145. If any party to an action, to whomtime has been granted, fails to produce hisevidence, or to cause the attendance of hiswitnesses, or to perform any other actnecessary to the further progress of theaction, for which time has been allowed, thecourt may, notwithstanding such default,proceed to decide the action forthwith.148. If the court is of opinion that the Adjournmentissues cannot be correctly framed without for evidence,the examination of some person not beforethe court, or without the inspection of somedocument not produced in the action, itmay adjourn the framing of the issue to afuture day to be fixed by the court, and maycompel the attendance of such person or theproduction of such document by summonsor other process.149. The court may, at any time before Amendment ofpassing a decree, amend the issues or frame issuesadditional issues on such terms as it thinksfit.V /93Cap. 105] CIVIL PROCEDURE CODEParty havingright to beginto state hiscase.Rules as toright to begin.Party havingright to beginto produce hisevidence.Crossexamination.153. Then shall follow re-examination Reby the first side if required, for the purpose examination,of enabling the witness to explain suchanswers given by him on cross-examinationas may have left facts imperfectly stated byhim, and to add such further facts as mayhave been suggested and made admissibleby the cross-examination.Explanation.—During the course of theexamination, cross-examination, and reexamination, the court ought not, as ageneral rule, to interfere, except whennecessary for the purpose of causingquestions to be put in a clear and propershape, of checking improper questions andof making the witness give precise answers.At the end of it, however, if it has beenreasonably well conducted, the court oughtto know fairly the position of the witnesswith regard to the material facts of the case,and it should then put such questions to thewitness as it may consider necessary topossess itself of all the detailed relevant factsto which the witness can speak frompersonal observation, or which bear upon histrustworthiness.150. The party having the right to beginshall state his case, giving the substance ofthe facts which he proposes to establish byhis evidence.Explanation 1.—The plaintiff has the right to beginunless where the defendant admits the factsalleged by the plaintiff, and contends thateither in point of law or on some additionalfacts alleged by the defendant the plaintiff isnot entitled to any part of the relief which heseeks, in which case the defendant has theright to begin.Explanation 2. —The case enunciated mustreasonably accord with the party’s pleading,i.e., plaint or answer, as the case may be.And no party can be allowed to make at thetrial a case materially different from thatwhich he has placed on record, and whichhis opponent is prepared to meet. And thefacts proposed to be established must in thewhole amount to so much of the materialpart of his case as is not admitted in hisopponent’s pleadings.151. After stating his case in person, orby his registered attorney or counsel, thesame party shall produce his evidence,calling his witnesses and by questionseliciting from each of them the relevant andmaterial facts to which such witness canspeak of his own observation.Explanation.—The questions should be simple, andso framed as to obtain from the witnesses, asnearly as may be in a chronological order, anarrative of all the facts relevant to thematter in issue between the parties which hehas witnessed—i.e., which he has in anymanner directly observed or perceived, andno others. -And on any disputed point thequestions should not be such as to lead, orsuggest, the answer; nor such as to induce awitness, other than an expert, to state aconclusion of his reasoning, an inference offact, or a matter of belief, in the place ofdescribing what he actually observed.Also, a general request to a witness to tell what heknows, or to state the facts of the case, is, asa rule, not to be permitted, because it givesan opening for a prepared story.Nothing in this explanation operates to prevent awitness from stating hearsay, or giving anyopinion, where the hearsay or opinion is arelevant fact in the case.152. After the examination-in-chief bythe party who called the witness, the crossexamination of the same witness, ifrequired, shall in like manner be effected bythe opposite side, only that in this caseleading questions may be put.154. (1) Every document or writing Tender ofwhich a party intends to use as evidence documentsin evidenceagainst his opponent must be formallytendered by him in the course of proving hiscase at the time when its contents or purportare first immediately spoken to by a witness.If it is an original document already filed inthe record of some action, or the depositionof a witness made therein, it must previouslybe procured from that record by means of,and under an order from, the court. If it is aportion of the pleadings, or a decree ororder of court made in another action, itshall not generally be removed therefrom,but a certified copy thereof shall be used inevidence instead.(2) It shall not be competent to the court Records ofto admit in evidence the entire body of °|J|etr0a^ lonsproceedings and papers of another action Emitted ;nindiscriminately. Each of the constituent bulk,documents, pleadings, or processes of theformer action, which may be required in thepending action, must be dealt withseparately as above directed.(3) The document or writing being Documentsadmitted in evidence, the court, after admitted to. . . . , . . . . . . , be read aloudmarking it with a distinguishing mark or in court.letter by which it should, when necessary, beever after referred to throughout the trial,V/94CIVIL PROCEDURE CODE [Cap. 105Procedure tobe followedbefore witnessis asked toidentifydocument.shall cause it, or so much of it as the partiesmay desire, to be read aloud.Explanation.—If the opposing party does not, on thedocument being tendered in evidence, objectto its being received, and if the document isnot such as is forbidden by law to bereceived in evidence, the court should admitit.If, however, on the document being tendered theopposing party objects to its being admittedin evidence, then commonly two questionsarise for the court:—Firstly, whether the document is authentic—inother words, is what the partytendering it represents it to b e ; andSecondly, whether, supposing it to be authentic,it constitutes legally admissibleevidence as against the party who issought to be affected by it.The latter question in general is matter ofargument only, but the first must besupported by such testimony as theparty can adduce. If the court is ofopinion that the testimony adducedfor this purpose, developed and testedby cross-examination, makes out aprima facie case of authenticity and isfurther of opinion that the authenticdocument is evidence admissibleagainst the opposing party, then itshould admit the document as before.If, however, the court is satisfied that either ofthose questions must be answered inthe negative, then it should refuse toadmit the document.Whether the document is admitted or not itshould be marked as soon as anywitness makes a statement withregard to i t ; and if not earlier markedon this account, it must, at least, bemarked when the court decides uponadmitting it.155. Before a witness is allowed to, inany way, identify a document, he shouldgenerally be made, by proper questioning,to state the grounds of his knowledge withregard to it.IllustrationIf the witness is about to speak to the act, or factum,of signature he should first be made toexplain concisely the occurrences which ledto his being present on the occasion of thesigning; and if he is about to recognize asignature on the strength of his knowledge ofthe supposed signer’s handwriting, he shouldfirst be made to state the mode in which thisknowledge was acquired.156. The questioning for this purposeshould be effected by the party who isseeking to prove the document; and theopposing party, if he desires to do so,should be allowed to interpose with crossexamination on this point before thedocument is shown to the witness.157. It is the duty of the court, in theevent of a witness professing to be able torecognize or identify writing, always to takecare that his capacity to do so is thus tested,unless the opposite party admits it.158. If on the examination effected forthis purpose it appears to the court that thewitness was not in fact present at the time ofsigning, or is not reasonably competent toidentify the handwriting, then the courtshall not permit him to give his testimonyon the matter of the signature.159. (1) The signature of a person,which purports or which appears by theevidence to have been written by the pen ofanother, is not proved until both the fact ofthe writing and the authority of the writer towrite the name on the document as asignature is proved.(2) Subsection (1) applies to the casewhere the signature is a mark explained bythe name written adjacent thereto.160. In the case of an illiterate person,who cannot read, it must also be provedthat at the time when his name was writtenon, or his mark put to, the document, heunderstood the contents of i t :Provided that where the name of suchilliterate person shall have been written on,or his mark put to, any document for thepurpose merely of attesting the signature ofqnother, it shall not be necessary to provethat he understood the contents of suchdocument, but it shall be sufficient to provethat he was aware of the purpose for whichhis name was so written or his mark so put,and that the person whose signature hepurports to attest was known to him.161. When the document purports onthe face of it to be so old that proof of theactual execution is not required by law, it isnot proved until sufficient evidence has beenCrossexaminationas toknowledge.Court to seewitness thustested.And to decideon hiscompetency.Signature bya mark howproved.Proof in thecase of anilliterateperson.Case ofdocumentswhoseexecution neednot be proved.V/95Cap. 105] CIVIL PROCEDURE CODECopy of absentoriginal howproved.On terminationof beginningparty’s casethe opposingparty to stateand prove hisin likemanner.Reply.Whenrebuttingevidence isadmissible.Court mayquestionwitness at anytime.given to prove both that it comes into courtfrom the proper custody, and that it hascontinued to be in proper custodythroughout the period during which it canbe reasonably accounted for.162. When the document, the admissionof which is objected to, is put forward as thecopy of an absent original, it is not proveduntil both such evidence as is sufficient toprove the correctness of the copy, and alsosuch evidence as would be sufficient toprove the original, had it been tenderedinstead of the copy, has been given.Note.—The question whether a copy document isadmissible in evidence between the parties in the placeof the original is quite distinct from the questionwhether the document (original or copy) is admissibleas evidence relevant to the issue under trial.163. When the party beginning hasstated his case and adduced his evidence inaccordance with the foregoing rules, thenthe opposing party or parties (if there aremore than one, who have distinct cases)shall in person, or by registered attorney orcounsel, state his or their case or cases (andin the latter event in succession), and whenthe case of each opposing party has been sostated each such party shall adduce in orderhis evidence, oral and documentary, and thesame shall be received and dealt withprecisely as in the case of the partybeginning, who shall then be entitled toreply. But where there are several issues, theburden of proving some of which lies on theother party or parties, the party beginningmay at his option either produce hisevidence on those issues or reserve it by wayof answer to the evidence produced by theopposing party or parties ; and in the lattercase the party beginning may produceevidence on those issues after the otherparty or parties has or have produced all hisor their evidence, and such other party orparties may then reply specially on theevidence so produced by the partybeginning, but the party beginning will inthat case be entitled to reply generally onthe whole case.164. The court may at any time, whetherbefore or after the examination of a witnessby the respective parties or during suchexamination, put and interpose suchquestions as it may consider conducive tothe attainment of truth and justice. And theanswers to such questions shall be made’ toappear on the face of the record as havingbeen given to the court.165. The court may also in its discretionrecall any witness, whose testimony hasbeen taken, for further examination orcross-examination, whenever in the courseof the-trial it thinks it necessary for the endsof justice to do so.166. The court may for grave cause, tobe recorded by it at the time, permit adeparture from the course of trial prescribedin the foregoing rules.167. The evidence of the witnesses shallbe given orally, as above prescribed, in opencourt in the presence and under the personaldirection and superintendence of the Judge.168. Witnesses professing to beChristians or Jews, who have discretion tounderstand the nature of an oath, shall beexamined upon oath, unless they state that,according to their religious tenets or onother grounds they object to the taking ofan oath, in which case they shall beexamined on affirmation. Witnesses notprofessing to be Christians or Jews shall beexamined on affirmation. The same ruleshall apply to affidavits. And except whenhereinafter otherwise expressly provided,the oath or affirmation shall beadministered in open court.169. The evidence of each witness shallbe taken down in writing by the Judge, or inhis presence and hearing and under hispersonal direction and superintendence. Theevidence shall be taken down ordinarily inthe form of a narrative.170. The court may of its own motionor on the application of any party takedown or cause to be taken down anyparticular question and answer, or anyobjection to any question, if there appear tothe court any special reason for so doing.171. If any question put to a witness beobjected to, and the court allows the sameto be put, the Judge may in his discretiontake down in writing the question, theanswer, the objection, and the name of theparty making it, together with the decisionof the court thereon.Court mayrecall witness.When maycourt permitdeparture fromabove rules.Evidence ofwitness to begiven orallyin open court.Witness to beexamined onoath oraffirmation.Evidence ofwitness howtaken down.[§ 30, Law 20of 1977.]Any particularquestion andanswer maybe taken down.The objectionto questionwhich isallowed andthe decision ofcourt thereonmay betaken down.V/96CIVIL PROCEDURE CODE [Cap. 105The objectionto questiondisallowed andthe decision ofcourt thereonto be takendown.Court mayrecord remarkson demeanourof witness.Witnesses maybe kept out ofcourt.No witness tobe called ordocument to beproducedunless includedin list ofwitnesses ordocuments.172. If on objection made the courtrefuses to allow the question to be put, theJudge shall, on the request of thequestioner, take down in writing thequestion, the objection, and the name of theparty making it, together with the decisionof the court thereon.173. The court may record such remarksas it thinks material respecting thedemeanour of any witness while underexamination.174. The witnesses on either side or onboth or all sides shall, on motion of any ofthe parties, be kept out of court andof hearing, except the witness immediatelyunder examination; nor shall any witness,who shall remain in court or within hearingafter order made to that effect, be permittedto give evidence, unless in the case of awitness called to prove some fact which hasincidentally become essential in the courseof the trial, and the necessity of which couldnot reasonably have been anticipated. Andevery witness who has been examined shallbe kept separate from, and shall be allowedno communication with, those who stillremain to be examined :Provided that it shall be lawful for thecourt in its discretion to allow any witnessto be examined, if it shall think suchexamination conducive to the attainment oftruth or justice, notwithstanding that suchwitness shall have remained in court orwithin hearing contrary to such orderaforesaid.175. (1) No witness shall be called onbehalf of any party unless such witness shallhave been included in the list of witnessespreviously filed in court by such party asprovided by section 121 :Provided, however, that the court may inits discretion, if special circumstancesappear to it to render such a courseadvisable in the interests of justice, permit awitness to be examined, although suchwitness may not have been included in suchlist aforesaid;Provided also that any party to an actionmay be called as a witness without his namehaving been included in any such list.(2) A document which is required to beincluded in the list of documents filed incourt by a party as provided by section 121and which is not so included shall not,without the leave of the court, be received inevidence at the trial of the action:Provided that nothing in this subsectionshall apply to documents produced for crossexamination of the witnesses of the oppositeparty or handed over to a witness merely torefresh his memory.176. The court may forbid any questionsor inquiries which it regards as indecent orscandalous, although such questions orinquiries may have some bearing on thequestions before the court, unless they relateto facts in issue or to matters necessary tobe known in order to determine whether ornot the fact in issue existed.177. The court shall forbid any questionwhich appears to it to be intended to insultor annoy, or which, though proper in itself,appears to the court needlessly offensive inform.178. (1) If a witness is about to leavethe jurisdiction of the court, or if othersufficient cause is shown to the satisfactionof the court why his evidence should betaken immediately, the court may upon theapplication of either party or of the witness,at any time after the institution of the actionand before trial, take the evidence of suchwitness in manner hereinbefore provided.(2) Where such evidence is not takenforthwith, and in the presence of the parties,such notice as the court thinks sufficient ofthe day fixed for the examination shall begiven to the parties.(3) The evidence so taken may be read atany hearing of the action, provided that thewitness cannot then be produced.179. The court may at any time, forsufficient reason, order that any particularfact or facts may be proved by affidavit, orby depositions taken on commission,instead of by the testimony of witnessesgiven viva voce before it, or that theaffidavit, or deposition taken oncommission, of any witness may be read atthe hearing of the action on such conditionsas the court shall think reasonable :[§31, Law 20 of1977.]Court mayforbid indecentor scandalousquestions.Court shallforbid insultingquestions.Evidence debene esse.Evidence takenon affidavit oroncommission.V /97Cap. 105] CIVIL PROCEDURE CODECourt mayexaminewitness vivavoce notwithstandingaffidavit orcommission.Whatstatements mayaffidavitcontain.Petitionscannot beconverted toaffidavits.Who mayadministeroaths.Judgmentwhenpronounced.Provided that when it appears to thecourt that either party bona fide desires theproduction of a witness before the court forcross-examination viva voce, and that suchwitness can be so produced, an order shallnot be made authorizing the evidence ofsuch witness to be given otherwise than vivavoce.180. In the event of an order havingbeen made for the proof of facts byaffidavit, or by deposition taken oncommission, the court may, nevertheless, atthe instance of either party order theattendance of the declarant or deponent atthe hearing of the action for viva voce crossexamination, if he is in Sri Lanka and canbe produced.181. Affidavits shall be confined to thestatement of such facts as the declarant isable of his own knowledge and observationto testify to, except on interlocutoryapplications in which statement of his beliefmay be admitted, provided that reasonablegrounds for such belief be set forth in theaffidavit.182. A petition stating facts ofobservation and belief is not converted intoan affidavit by the addition of a verifyingclause, an affirmation or oath, to the effectthat the statements in the petition are true.183. In the case of any affidavit underthis Chapter—(a) any court, or Magistrate, or Justiceof the Peace; or(ft) any officer whom the Minister incharge of the subject of Justice mayappoint for the purpose (and whoshall be styled “ Commissioner forOaths ”) may administer the oath tothe declarant.CHAPTER XXJ u d g m e n t a n d D e c r e e184. (1) The court, upon the evidencewhich has been duly taken or upon thefacts admitted in the pleadings or otherwise,and after the parties have been heard eitherin person or by their respective counsel orregistered attorneys (or recognized agents),shall, after consultation with the assessors(if any), pronounce judgment in open court,either at once or on some future day, ofwhich notice shall be given to the parties ortheir registered attorneys at the terminationof the trial.(2) On the day so fixed, if the court isnot prepared to give its judgment, a yetfuture day may be appointed andannounced for the purpose.185. A Judge may pronounce a Judge mayjudgment written by his predecessor, but not pronouncepronounced. w S b ypredecessor.186. The judgment shall be in writing Judgment to beand shall be dated and signed by the Judge inwritin8 andin open court at the time of pronouncing it. and signed inopen court.[§32, Law 20 of1977.]186A. Where a Judge pronounces a Validation injudgment written by his predecessor but not certainpronounced as provided in section 185 , such 0f judgmentsjudgment shall, if such predecessor was a pronounced byjudicial officer within the meaning of Article successors in114 (6) of the Constitution at the time such judgesjudgment was written, not be deemed to be [§2, .3 of i960.]invalid by reason only of the fact that suchpredecessor had no jurisdiction to writesuch judgment.187. The judgment shall contain a Requisites ofconcise statement of the case, the points for judgment,determination, the decision thereon, and thereasons for such decision; and the opinionsof the assessors (if any) shall be prefixed tothe judgment and signed by such assessorsrespectively.188. As soon as may be after the Decree,judgment is pronounced, a formal decreebearing the same date as the judgment shallbe drawn up by the court in the form No. 41in the First Schedule or to the like effect,specifying in precise words the order whichis made by the judgment in regard to therelief granted or other determination of theaction. The decree shall also state by whatparties and in what proportions costs are tobe paid, and in cases in the Primary Courtsshall state the amount of such cost. Thedecree shall be signed by the Judge.V/98CIVIL PROCEDURE CODE [Cap. 105Amendment ofjudgments,decrees andorders.Requisites ofdecree relatingto immovableproperty.[§33, Law 20 of1977.]Requisites ofdecree relatingto movableproperty.At what ratemay interest onmoney bedecreed.[§5, 53 of1980.]189. (1) The court may at any time,either on its own motion or on that of anyof the parties, correct any clerical orarithmetical mistake in any Judgment ororder or any error arising therein from anyaccidental slip or omission, or may makeany amendment which-is necessary to bringa decree into conformity with the judgment.(2) Reasonable notice of any proposedamendment under this section shall in allcases be given to the parties or theirregistered attorneys.190. Where the decree relates toimmovable property the property affectedthereby shall be described therein by theboundaries and in such other manner byreference to surveys or otherwise as maysecure, as far as possible, correctness ofidentification; and the description shall bein such form as to enable such decree to beregistered under the Registration ofDocuments Ordinance.191. When the action is for movableproperty, if the decree be for the delivery ofsuch property, it shall also state the amountof money to be paid as an alternative, ifdelivery cannot be had.192. (1) When the action is for a sumof money due to the plaintiff, the court may,in the decree order interest according to therate agreed on between the parties by theinstrument sued on, or in the absence of anysuch agreement at the rate of twelve percentum per annum to be paid on theprincipal sum adjudged from the date of theaction to the date of the decree, in additionto any interest adjudged on such principalsum for any period prior to the institutionof the action, with further interest at suchrate on the aggregate sum so adjudged, fromthe date of the decree to the date ofpayment, or to such earlier date as the courtthinks fit.(2) When such a decree is silent withrespect to the payment of further interest onsuch aggregate sum as aforesaid from thedate of the decree to the date of payment orother earlier date, the court shall be deemedto have refused such interest, and a separateaction therefor shall not lie.193. When the action is for damages forbreach of contract, if it appear that thedefendant is able to perform the contract,the court, with the consent of the plaintiff,may decree the specific performance of thecontract within a time to be fixed by thecourt, and in such case shall award anamount of damages to be paid as analternative if the contract is not performed.194. In all decrees for the payment ofmoney, except money due on mortgage ofmovable or immovable property, the courtmay order that the amount decreed to bedue shall be paid by instalments, with orwithout interest, and the court may in itsdiscretion impose such terms as it may thinkfit as to giving security for the payments soto be made:Provided always that on failure to pay thefirst or any other instalment, the wholeamount or any balance then due shall onsuch failure become immediately payable;Provided also, that if the party ordered topay by instalments shall appeal against thedecree, and the appeal shall be decidedagainst him, his right to pay by instalmentsshall cease, and the whole amount shall beimmediately payable, unless the Court ofAppeal or the Supreme Court, as the casemay be, give express direction to thecontrary;Provided also, that no appeal shall lieagainst the refusal of the court to make anorder for payment by instalments.195. If the defendant shall have beenallowed to set off any demand against theclaim of the plaintiff, the decree shall statewhat amount is due to the plaintiff andwhat amount (if any) is due to thedefendant, and the mandatory part of thedecree shall be for the recovery of anybalance which shall on that statementappear to be due to either party. The decreeof the court with respect to anythingawarded to the defendant on any matter onwhich the defendant obtains judgment byset-off or in reconvention, shall be to thesame effect, and be subject to the samerules, as if such thing had been claimed bythe defendant in a separate action againstthe plaintiff.When maycourt decreespecificperformance.When maycourt decreepayment byinstalments.Decree whenset-off or claimin reconventionis allowed.V/99Cap. 105] CIVIL PROCEDURE CODEDecree whenclaim in respectof mesneprofits fromdate of actionis allowed.[§6, 53 of1980.]Mesne profitsprior to date ofaction.Interlocutoryorder foraccounts.Administrationby the court.196. When the action is for the recoveryof the possession of immovable property,yielding rent or other profit, the court may,whenever the prayer of the plaint asks fordamages in respect of mesne profits or rent,provide in the decree for the payment ofmoney in lieu of mesne profits or rent inrespect of such property from the date ofthe institution of the action until thedelivery of possession to the party in whosefavour the decree is made, with interestthereon at such rate not exceeding twelveper centum as the court thinks fit.Explanation:— “ Mesne profits ” of property meanthose profits which the person in wrongfulpossession of such property actuallyreceived, or might, with ordinary diligence,have received therefrom.197. When the action is for the recoveryof possession of immovable property andfor mesne profits which have accruedthereon during a period prior to theinstitution of the action, the court mayeither determine the amount and make anorder for the payment thereof additional toand embodied in the decree itself, or maypass a decree for the property and reservethe inquiry into the amount of mesne profitsto be entered upon after the execution of thedecree for the property, as may appear mostconvenient.198. When the action is for an accountof any property and for its dueadministration under the decree of thecourt, the court, before making the finaldecree between the parties, shall order suchaccounts and inquiries to be taken andmade, and give such other directions, as itthinks fit.199. In the administration by the courtof the property of any person who dies afterthis Ordinance comes into force, if suchproperty proves to be insufficient for thepayment in full of his debts and liabilities,the same rules shall be observed as to therespective rights of secured and unsecuredcreditors, and as to debts and liabilitiesprovable, and as to the valuation ofannuities and future and contingentliabilities respectively as may be in force forthe time being with respect to the estates ofpersons adjudged insolvent.And all persons who in any such casewould be entitled to be paid out of suchproperty may come in under the decree forits administration and make such claimsagainst the same as they may respectively beentitled to by virtue of this Ordinance.200. When the action is to enforce aright of pre-emption in respect of aparticular sale of property, and the courtfinds for the plaintiff, if the amount ofpurchase money has not been paid intocourt, the decree shall specify a day on orbefore which it shall be so paid, and shalldeclare that on payment of such purchasemoney, together with the costs (if any)decreed against him, the plaintiff shallobtain possession of the property, but that ifsuch money and costs are not so paid” on orbefore such day or any extension thereofwhich shall have been allowed for goodcause shown, the action shall standdismissed with costs.202*. When the action is for thedissolution of partnership, the court beforemaking its decree may pass an order fixingthe day on which the partnership shall standdissolved, and directing such accounts to betaken and other acts to be done as it thinksfit.203. When the action is for an accountof pecuniary transactions between principaland agent, and in all other actions nothereinbefore provided for, where it isnecessary in order to ascertain the amountof money due to or from any party that anaccount should be taken, the court shallbefore making its decree pass an orderdirecting such account to be taken as itthinks fit.204. When a decree or order made atthe hearing of the action is such as to havethe effect of postponing the further hearingand the final determination of the action, asfor instance a decree for the taking ofaccounts, or an order for the issue of acommission to take evidence, or of a* Section 201 is repealed by Ordinance No. 21 of 1927.V/100Decree inaction for preemption, &c.Interlocutoryorder in actionfor dissolutionof partnership.Suit foraccountbetweenprincipal andagent.Decree ororderpostponinghearing.CIVIL PROCEDURE CODE [Cap. 105Any personentitled tocertified copiesof decree andjudgment.Decree or copyto be primaryevidence ofdecision.Decrees mustbe decisive,and must notdirect non-suit.commission to divide by metes and bounds,it shall specify the time at which the furtherhearing of the action shall be proceededwith.205. Upon being paid such fee as thecourt shall from time to time determine, theRegistrar of the court shall at all .timesfurnish to any person applying for the same,and supplying the necessary stamp, copiesof the proceedings in any action, or anyparty thereof, or upon such application andproduction of such stamp shall examine andcertify to the correctness of any such copiesmade by such person.206. The decree or such certified copythereof shall constitute the sole primaryevidence of the decision or order passed bythe court.207. All decrees passed by the courtshall, subject to appeal, when an appeal isallowed, be final between the parties; andno plaintiff shall hereafter be non-suited.Explanation.—Every right of property, or to money,or to damages, or to relief of any kind whichcan be claimed, set up, or put in issuebetween the parties to an action upon thecause of action for which the action isbrought, whether it be actually so claimed,set up, or put in issue or not in the action,becomes, on the passing of the final decree inthe action, a res adjudicata, which cannotafterwards be made the subject of action forthe same cause between the same parties.209. When disposing of any application -Court alwaysor action under this Ordinance, whether of t0 h.ave P°werregular or of summary procedure, the court reserve costs,may, unless elsewhere in this Ordinanceotherwise directed, give to either party thecosts of such application or action, or mayreserve the consideration of such costs forany future stage of the proceedings; anyorder for the payment of costs only is adecree for money within the provisions ofsection 194 as to payment by instalments.210. The decree or order shall direct by Court shallwhom the costs of each party are to be paid, d‘rect by whomand whether in whole or in what part or paid, , . . . . . costs to beproportion.211. The court shall have full power to Court maygive and apportion costs of every aPPortionapplication and action in any manner itthinks fit, and the fact that the court has nojurisdiction to try the case is no bar to theexercise of such power :Provided that if the court directs that thecosts of any application or action shall notfollow the event, the court shall state itsreasons in writing.212. The court may direct that the costs Set-off ofpayable to one party by another shall be set costsoff against a sum which is admitted or isfound in the action to be due from theformer to the latter.CHAPTER XXIO f C o s t sCosts. 208. Under the denomination of costsare included ‘the whole of the expensesnecessarily incurred by either party onaccount of the action and in enforcing thedecree passed therein, such as the expense ofstamps, of summoning the defendants andwitnesses, and of other processes, or ofprocuring copies of documents, fees andcharges of counsel and registered attorneys,such just and reasonable charges as appearto have been properly incurred in procuringevidence and the attendance of witnesses,and expenses of commissioners either intaking evidence or in local investigations, orin investigations into accounts; and all[§34, Lay/ 20 of other expenses of procuring and adducing19771 necessary evidence.But such direction shall not affect the lienupon the amount decreed of any registeredattorney in respect of the costs payable tohim under the decree.213. The court may give interest on Court may givecosts at any rate not exceeding twelve per interest oncentum per annum, and may direct that 53 ofcosts, with or without interest, be paid out 1980.]of, or charged upon, the subject-matter ofthe action.214. All bills of costs, whether between Costs to beparty and party or between registered taxedattorney and client, shall be taxed by theRegistrar of the court according to the ratesspecified in the Second Schedule; and ifeither party is dissatisfied with this taxation,the matter in dispute shall be referred to thecourt for its decision, and the decision of thecourt in review of taxation of costs shallV /101Cap. 105] CIVIL PROCEDURE CODEAction forcosts byregisteredattorney.Registeredattorney tobear costs oftaxation inwhat case.Classificationof decrees.(except when it is the decision of the Courtof Appeal) be liable to an appeal to theCourt of Appeal.215. No registered attorney shallcommence or maintain any action for therecovery of any fees, charges, ordisbursements at law until the expiration ofone month or more after he shall havedelivered unto the party charged therewith,or left with him at his dwelling house or lastknown place of abode, a bill of such fees,charges and disbursements subscribed bysuch registered attorney. And after suchdelivery or service thereof, either theregistered attorney or party chargedtherewith may obtain an appointment fromthe taxing officer for the taxation thereof;and if either party shall fail to attend, andthe taxing officer is satisfied that such partyhas received due notice of the appointment,the taxation shall proceed in his absence.216. If more than one-sixth of theamount of any bill of costs is disallowed bythe taxing officer, the registered attorneyshall bear the expense of taxation.CHAPTER XXIIO f E x e c u t io n s217. A decree or order of court maycommand the person against whom itoperates—(A) to pay money;(B) to deliver movable property;(Q to yield up possession of immovableproperty;(£>) to grant, convey, or otherwise passfrom himself any right to, orinterest in, any property;(£) to do any act not falling under anyone of the foregoing heads;or it may enjoin that person—(F) not to do a specified act, or toabstain from specified conduct orbehaviour;or it may, without affording any substantiverelief or remedy—(G) declare a right or status.And the method of procedure to befollowed, when necessary, by the personparty to the action in whose favour thedecree or order is made, hereinafter calledthe “ decree-holder” or “judgmentcreditor ”, in order to enforce satisfaction orexecution of the decree in each caserespectively by the person party to theaction against whom the decree is made,hereinafter called “ the judgment-debtor ”, isthat which is next hereinafter specifiedaccording to the above distinguishing heads.iA)■ EXECUTION OF DECREE TO PAY MONEY218. When the decree falls under head(A) and is unsatisfied, the judgment-creditorhas the power to seize, and to sell or realizein money by the hands of the Fiscal, exceptas hereinafter mentioned, all saleableproperty, movable or immovable, belongingto the judgment-debtor, or over which orthe profits of which the judgment-debtorhas a disposing power, which he mayexercise for his own benefit, and whetherthe same be held by or in the name of thejudgment-debtor or by another person intrust for him or on his behalf:Provided that the following shall not beliable to such seizure or sale, namely—(a) the necessary wearing-apparel, beds,and bedding of the judgmentdebtor, or of his wife and children;(b) tools, utensils, and implements oftrade or business, and, where thejudgment-debtor is an agriculturist,his implements of husbandry andsuch cattle and seed grain as may inthe opinion of the court benecessary to enable him to earn hislivelihood as such; and suchquantity of paddy as may, in theopinion of the court, be necessaryfor the purpose of providing for thesupport of himself and his familyuntil the next harvest;Power ofcreditor toseize and selldebtor’sproperty insatisfaction ofdecree forpayment ofmoney.Exceptedproperty.[§35, Law 20 of1977.]V/ 102CIVIL PROCEDURE CODE [Cap. 105[§35, Law 20 of1977.][§2, 24 of1961.][§35, Law 20 of1977.](c) professional instruments and librarynecessary for the carrying on of thejudgment-debtor’s profession orbusiness to the value of onethousand rupees;(d) books of accounts ;(e) mere rights to sue for damages;(/) any right of personal service ;(g) the stipend, the cost of livingallowance and the special livingallowance of a naval, military, airforce, civil or political pensioner ofthe Government;(h) so much of the salary andallowances of a state officer as doesnot in the aggregate exceed fivehundred rupees per month ;(0 the pay and allowances of persons towhom the articles of war apply;(/) the wages of labourers and domesticservants;(k ) an expectancy of succession bysurvivorship or other merelycontingent or possible right ofinterest;appurtenant thereto as the courtmay consider necessary for itsenjoyment;(o) the amount standing to the credit of [§2,24 ofan employee’s individual account inthe Employees’ Provident Fundestablished under the Employees’Provident Fund Act, or in anyother provident fund established forthe benefit of employees in anyemployment.Explanation.—The particulars mentioned in clauses [§35, Law 20 of(g), (h), (i), (/), (m) and (o) are exempt from 1977.]sequestration or sale, whether before or afterthey are actually payable.219. (1) The party entitled to enforce Examinationany decree for the recovery or payment of of judgmentmoney may apply to the court for an order debts owing t0that the debtor (or, in the case of a him.corporation, that any officer thereof) beorally examined before the court on oath oraffirmation, as to whether any and whatdebts are owing to the debtor, and whetherthe debtor has any and what other propertyor means of satisfying the decree; and thecourt may thereon make an order for theattendance and examination on oath oraffirmation of such debtor or of any otherperson whom it thinks necessary, and forthe production by such debtor or person ofany books or documents.[§35, Law 20 of1977.][§35, Law 20 of1977.][§35, Law 20 of1977.](/) a right to future maintenance and allmaintenance, alimony and costsordered in matrimonial suits ormaintenance actions;(m) so much qf the salary or wages andallowances of an employee otherthan a state officer as does not inthe aggregate exceed five hundredrupees per month;(n) any house which is not mortgaged assecurity for the payment of thewhole or part of the sum referred toin such decree and which is theactual residence of the judgmentdebtor at the time of the executionof such decree and has been suchresidence from the time of theinstitution of the action in whichsuch decree has been enteredtogether with such extent of land(2) If a debtor for whose attendance anorder has been made under this section failsto comply with such order, the court may,on its own motion or on the application ofthe party entitled to enforce the decree, issuea warrant for the arrest of such debtor:Provided the court may make it acondition of the issue of such warrant thatthe person applying for it shall deposit suchsum as the court may deem reasonable forthe subsistence of the debtor from the timeof his arrest until he can be brought beforethe court, and for the purpose of defrayingany other expenditure that may be incurredin executing such warrant.220. It shall not be necessary to supportany such application by affidavits of theapplicant’s belief that any debts are owingto the debtor, or that he has any otherproperty or means of satisfying the decree.Applicationneed not besupported byaffidavit.V/103Cap. 105] CIVIL PROCEDURE CODECosts.Execution ofdecree againstlegalrepresentativeof a deceasedperson.[§8, 53 of1980.]Seizure andsale to beeffected underorder of court.Applicationtherefor.221. The costs of any such applicationand of any proceedings arising thereout orincidental thereto shall be in the discretionof the court.222. (1) If the decree is against a partyas the legal representative of a deceasedperson, and is for money to be paid out ofthe property of the deceased, it may beexecuted by the attachment and sale of anysuch property in the hands or under thecontrol of the party against whom thedecree is made.(2) If no such property can be found,and the judgment-debtor fails to satisfy thecourt that he has duly applied such propertyof the deceased as is proved to have comeinto his possession, the decree may beexecuted against the judgment-debtor to theextent Of the property not duly applied byhim, in the same manner as if the decree hadbeen against him personally.(3) An application to execute a decreeagainst the judgment-debtor as provided insubsection (2) shall be made, by petitionsupported by affidavit of the judgmentcreditor setting out the material facts, towhich application the judgment-debtor shallbe made respondent. The court shall afterinquiry, if satisfied that the decree should beexecuted against the judgment-debtorpersonally, grant such application.223. For the purpose of effecting therequired seizure and sale in any case theFiscal must be put in motion by applicationfor execution of decree to the court whichmade the decree sought to be enforced.224. The application for execution ofthe decree shall be in writing, signed by theapplicant or his registered attorney, andshall contain the following particulars :—(a) the number of the action;(b) the names of the parties;(c) the date of the decree ;(d) whether any appeal has beenpreferred from the decree ;(e) whether any, and what, adjustmentof the matter in dispute has beenmade between the partiessubsequently to the decree ;(/) whether any, and what previousapplications have been made forexecution of the decree, and withwhat result, including the dates andamounts of previous levies, if any;(g) the amount of the debt orcompensation, with the interest, ifany, due upon the decree, or otherrelief granted thereby;(h) the amount of costs, if any,awarded;(0 the name of the person against whomthe enforcement of the decree issought;(j) the mode in which the assistance ofthe court is required, whether bythe delivery of property specificallydecreed, by the arrest andimprisonment of the person namedin the application, or by theattachment of his property, orotherwise as the nature of the reliefsought may require.225. (1) Upon the application forexecution of the decree being made, thecourt shall satisfy itself by reference, ifnecessary, to the record of the action inwhich the decree or order sought to beexecuted was passed, that the application issubstantially in conformity with theforegoing directions, and that the applicantis entitled to obtain execution of the decreeor order which is the subject of theapplication. If the court is not satisfied inthese respects it shall refuse to entertain theapplication, unless and until amended in theparticulars in which the court considers itfaulty and defective, and with the view to itsbeing so amended the court shall point outthese particulars to the applicant:Provided that the court may make therequisite amendment then and there, if it isconsented to by the applicant and is such asto admit of being conveniently so affected;andProvided further that every suchamendment shall be attested by thesignature of the Judge making it.Court to satisfyitself as toconformity ofapplication.Whenapplicationshould berefused by thecourt.V/ 104CIVIL PROCEDURE CODE [Cap. 105Writ ofexecution.Duties ofFiscal onreceiving writ.Seizure ofmovableproperty inpossession ofdebtor to bemanual.(2) In the event of the court refusing toentertain the application, the order ofrefusal, stating the date both of theapplication and of the order, and the nameof the applicant, and specifying the groundsof refusal, shall be endorsed on theapplication, and the same shall be filed ofrecord in the action.(3) If the court is satisfied in the respectsabove indicated, it shall direct a writ ofexecution to issue to the Fiscal in the formNo. 43 in the First Schedule.226. (1) Upon receiving the writ, theFiscal or his deputy, or other officer, shallwithin forty-eight hours after delivery tohim of the same, if the debtor shall be aperson residing within five miles of theoffice of the Fiscal or Deputy Fiscal—or ifresiding beyond five miles, within anadditional forty-eight hours for every fivemiles or part thereof—repair to his dwellinghouse or place of residence and thererequire him, if present, to pay the amount ofthe writ.(2) If by reason of the debtor’s absenceno demand for the payment is made, or, inthe event of any such demand, when madenot being complied with, the Fiscal shallforthwith proceed to seize and sell, orotherwise realize in money, such unclaimedproperty of the judgment-debtor as may bepointed out and surrendered to him for thepurpose by the judgment-debtor, or indefault thereof such property of thejudgment-debtor as may be pointed out bythe judgment-creditor, or such property as isspecified in the writ according to the rulesnext hereinafter contained:Provided that when the debtor is out ofSri Lanka it shall not be necessary torequire him to pay the amount of the writbefore the execution is carried into effect.Mode o f Seizure227. If the property sought to be seizedand sold, or otherwise realized insatisfaction of the decree to be executed ismovable property in the possession of thejudgment-debtor, other than the propertymentioned in the first proviso to section218, the seizure shall be manual.The Fiscal, Deputy Fiscal, or other officermay at his discretion permit the owner orpossessor of the property or the writ-holderto take charge of the property until the timeof sale, on giving security to the satisfactionof such officer that he will in the meantimesafely and securely keep the same; or suchofficer may upon the necessary expensestherefor being advanced or secured to himby the debtor or the writ-holder, keep theproperty in his own custody or in thecustody of one of his subordinates, or causethe same to be removed to some fit place ofsecurity.If such security is not given or suchexpenses are not advanced or secured, theFiscal, Deputy Fiscal, or other officer shallmake a special return thereof to the court,and shall not be responsible for the duecustody of the property so seized.The expenses of keeping the property insuch custody or of removing the same whencertified by the Fiscal shall, if not paid bythe debtor, be a first charge on the proceedsof the property seized or sequestered,provided that the court may, if it thinks fit,reduce the amount of expenses so certifiedas aforesaid:Provided that when the property seized issubject to speedy and natural decay, orwhen the expense of keeping it in custodywill exceed its value, the Fiscal may sell it atonce.228. If the property is a negotiableinstrument not deposited in a court, nor inthe custody of a public officer, theinstrument shall be seized and brought intocourt and held subject to the further ordersof the court.229. In the case of—(i) a debt not secured by a negotiableinstrument,(ii) a share in the capital of any publiccompany or corporation,(iii) other movable property not in thepossession of the judgment-debtor,except property deposited in, or inthe custody of, any court, or in thecustody of a public officer,Disposal ol’property seigcduntil sale.Proviso as toperishableproperty.As toattachment ofnegotiableinstrument.Seizure ofdebts, shares,and movableproperty not inpossession ofdebtor and notdeposited incourt to be bywritten noticeof prohibition.V/105Cap. 105] CIVIL PROCEDURE CODEthe sequestration or seizure shall be made to, any such application as aforesaid shallby a written notice signed by the Fiscal, be in the discretion of the court,prohibiting—(а) in the case of the debt, the creditorfrom recovering the debt, and thedebtor from making paymentthereof until the further order of thecourt from which the writ ofexecution authorizing the seizureissues;(б) in the case of the share, the person inwhose name the share may bestanding from transferring the sameor receiving any dividend thereon;(c) in the case of the other movableproperty except as aforesaid, theperson in possession of the samefrom giving it over to thejudgment-debtor.231. Payment made by, or execution Payment bylevied upon, such debtor in manner him to be aprovided in the last preceding section shall against86 **be a valid discharge to him as against the judgmentjudgment-debtor to the amount paid or debtorlevied, although such proceeding may be setaside or the judgment in respect of whichany payment or levy is made may bereversed.232. (1) If the property is deposited in, Seizure ofor in the custody of, any court or public propertyofficer, the seizure shall be made by a notice anyolurt “to such court or officer, requesting that suchproperty and any interest or dividendbecoming payable thereon may be heldsubject to the further orders of the courtfrom which the writ of executionauthorizing the seizure issues:A copy of such order shall be affixed tosome conspicuous part of the court-house,and another copy of the same shall bedelivered or sent by post, in the case of thedebt to the debtor, in the case of the shareto the proper officer of the company orcorporation, and in the case of the othermovable property (except as aforesaid) tothe person in possession of the same.Judgment- 230. (1) A debtor prohibited underdebtor’s debtor ciause (a) of the last preceding section may,summoned, or uPon the Parte application of theexecution may judgment-creditor, be summoned by theissue against court to show cause, on a day fixed in the1 ‘ summons, why he should not pay to thejudgment-creditor the debt due from him tothe judgment-debtor, or so much thereof asmay be sufficient to satisfy the judgment. Ifsuch debtor does not dispute the debt due orclaimed to be due from him, and fails withinsuch time as may be allowed him by thecourt to pay into court the amount duefrom him to the judgment-debtor, or anamount equal to the judgment, or if he doesnot appear upon summons, then the courtmay order execution to issue, and it mayissue accordingly, to levy the amount duefrom such debtor, or so much thereof asmay be sufficient to satisfy the judgment.(2) The costs of any application and ofany proceedings arising from, or incidentalProvided that, if such property is Question ofdeposited in, or is in the custody of, a court, title or priorityany question of title or priority arisingbetween the judgment-creditor and anyother person, not being the judgmentdebtor, claiming to be interested in suchproperty by virtue of any assignment,attachment, or otherwise, shall bedetermined by such court.(2) Upon such notice being received byany court a memorandum thereof shall bemade in the journal of the action in whichor to the credit of any party to which, themoney is deposited, or is in the custody ofthe court.Explanation.—Money in an appropriate bank accountto the credit of an action, or to the credit ofany party to an action, is within the meaningof this section, money deposited in, or in thecustody of, the court in which the action is.233. The notice necessary to effect Noticebyseizure under section 229 and 232 may be R e signed and served by the Fiscal under theauthority of the writ of execution alone.234. (1) If the property is a decree for Seizure of amoney passed in favour of the judgment- money decreedebtor by the court which passed the decree judgmentsought to be executed, the seizure shall be debtor.V /106CIVIL PROCEDURE CODE [C ap .105Seizure of anyother decrees.Alienation bydebtorsubsequent toseizure void asagainst claimsenforceableunder seizure.made by an order of the court directing theproceeds of the former decree to be appliedin satisfaction of the latter decree.(2) If the property is a decree for moneypassed by any other court, the seizure shallbe made by a notice in writing to such courtsigned by the Registrar of the court whichpassed the decree sought to be executed,requesting the former court to stay theexecution of its decree until such notice iscancelled by the court from which it wassent. The court receiving such notice shallstay execution accordingly, unless anduntil—(a) the court which passed the decreesought to be executed cancels thenotice; or(b) the holder of the decree sought to beexecuted applies to the courtreceiving such notice to execute itsown decree.On receiving such application the courtshall proceed to execute the decree andapply the proceeds in satisfaction of thedecree sought to be executed.235. In the case of all other decrees theseizure shall be made by an order of thecourt which passed the decree sought to beexecuted to the holder of the decree soughtto be seized, prohibiting him fromtransferring or charging the same in anyway, and when such decree has been passedin any other court, also by sending to suchcourt a like notice in writing to abstain fromexecuting the decree sought to be seizeduntil such notice is cancelled by the courtfrom which it was sent. Every courtreceiving such notice shall give effect to thesame until it is so cancelled.236. When a seizure of any negotiableinstrument, debt, share, money, decree orany other movable property has beeneffected and made known in mannerhereinbefore provided, any privatealienation of the property seized, whether bysale, gift, mortgage, or otherwise, and anypayment of the debt or dividend or deliveryof the share to the judgment-debtor duringthe continuance of the seizure, shall be voidas against all claims enforceable under theseizure.237. (1) If the property is immovable,the seizure shall be made by a notice signedby the Fiscal prohibiting the judgmentdebtor from transferring or charging theproperty in any way, and all persons fromreceiving the same from him by purchase,gift, or otherwise.(2) The notice shall specify the parties tothe action, the judgment-debtor, the dates ofjudgment and seizure, and the name,situation, and boundaries of the land seized,and shall be proclaimed at some place on oradjacent to such property by beat of tomtom or other customary mode, and a copyof the notice shall be affixed by the Fiscal toa conspicuous part of the property and ofthe court-house and of the Fiscal’s office.But in no case shall the Fiscal enter uponactual possession of the immovable propertyso seized, or receive the rents and profitsthereof, unless expressly directed so to doby oider made under Chapter L.238. When a seizure of immovableproperty is effected under a writ ofexecution and made known as provided bysection 237 and notice of the seizure isregistered before the 1st day of January,1928, in the book formerly kept undersection 237 or is registered on or after the1st day of January, 1928, under theRegistration of Documents Ordinance, anysale, conveyance, mortgage, lease, ordisposition of the property seized, madeafter the seizure and registration of thenotice of seizure and while such registrationremains in force is void as against apurchaser from the Fiscal selling under thewrit of execution and as against all personsderiving title under or through thepurchaser.239. If the amount decreed with costsand all charges and expenses resulting fromthe seizure of any property is paid intocourt, or if satisfaction of the decree isotherwise made’ through the court, or if thedecree is set aside or reversed, an order shallbe issued on the application of any personinterested in the property, for thewithdrawal of the seizure.Seizure ofimmovableproperty to beby writtennotice ofprohibition.Publication ofsuch notice.Effect ofpublication ofseizure andregistration ofnotice ofseizure.When seizuremust beordered to bewithdrawn.V/ 107Cap. 105] CIVIL PROCEDURE CODEList to be madeof propertyseized.Claims toproperty seizedto be reportedby Fiscal andinvestigated bycourt.240. As soon as any property shall beseized by the Fiscal, Deputy Fiscal, or otherofficer, a list of such property shallforthwith be made and signed by himself orthe person seizing the same, and shall begiven to the judgment-debtor and to anyperson claiming to be in possession of theproperty seized, and copies thereof shall bealso deposited in the Fiscal’s office andannexed to the return to the writ.Claims to Property seized241. In the event of any claim beingpreferred to, or objection offered against theseizure or sale of, any immovable ormovable property which may have beenseized in execution of a decree or under anyorder passed before decree, as not liable tobe sold, the Fiscal or Deputy Fiscal shall, assoon as the same is preferred or offered, asthe case may be, report the same to thecourt which passed such decree or order;and the court shall thereupon proceed in asummary manner to investigate such claimor objection with the like power as regardsthe examination of the claimant or objector,and in all other respects, as if he were aparty to the action:Provided always that when any suchclaim or objection is preferred or offered inthe case of any property so seized outsidethe local limits of the jurisdiction of thecourt which passed the decree or orderunder which such seizure is made, suchreport shall he made to, and suchinvestigation shall thereupon be held by, thecourt of the district or division within thelocal limits of which such seizure was made,and the proceedings on such report andinvestigation with the order thereon shall, atthe expiry of the appealable time, if noappeal has been within that time takentherefrom, but if an appeal has been taken,immediately upon the receipt by such’ courtof the judgment or order in appeal, beforwarded by such court to the court whichpassed the decree or order, and shall be andbecome part of the record in the action;Provided, further, that in every such casethe court to which such report is made shallbe nearer to the place of seizure than, and ofco-ordinate jurisdiction with, the courtwhich passed the decree or order.242. The claim or objection shall bemade at the earliest opportunity, and if theproperty to which the claim or objectionapplies shall have been advertised for sale,the sale may (if it appears to the courtnecessary) be postponed for the purpose ofmaking the investigation mentioned insection 241 :Provided that no such investigation shallbe made if it appears to the court that themaking of the claim or objection wasdesignedly and unnecessarily delayed with aview to obstruct the ends of justice.243. The claimant or objector must onsuch investigation adduce evidence to showthat at the date of the seizure he had someinterest in, or was possessed of, the propertyseized.244. If upon the said investigation thecourt is satisfied that, for the reason statedin the claim or objection such property wasnot, when seized, in the possession of thejudgment-debtor, or of some person in trustfor him or in the occupancy of a tenant orother person paying rent to him, or thatbeing in the possession of the judgmentdebtor at such time, it was so in hispossession, not on his own account or as hisown property, but on account of or in trustfor some other person, or partly on his ownaccount and partly on account of someother person, the court shall release theproperty wholly, or to such extent as itthinks fit, from seizure and make such orderas to payment of fees and charges alreadyincurred by the Fiscal as it may deem fit.245. If the court is satisfied that theproperty was, at the time it was seized, inpossession of the judgment-debtor as hisown property, and not on account of anyother person or was in the possession ofsome other person, in trust for him, or inthe occupancy of a tenant or other personpaying rent to him, the court shall disallowthe claim.246. If the court is satisfied that theproperty is subject to a mortgage or lien infavour of some person not in possession,and thinks fit to continue the sequestrationor seizure, it may do so subject to suchmortgage or lien.Claim to bemade atearliestopportunity.Claimant toadduceevidence.Discretion ofcourt to releasethe propertyclaimed.When maycourt disallowthe claim.Court maycontinueseizure subjectto mortgage orlien.V/108CIVIL PROCEDURE CODE [C a p .105Action byparty claimingright.Punishment aswell asdamages maybe awarded forgroundlessclaim.Seizure ofpartnershipproperty fordebt ofpartner, otherpartner mayapply forrelease.Undertaking tobe given byapplicant.247. The party against whom an orderunder section 244, 24S, or 246 is passed mayinstitute an action within fourteen daysfrom the date of such order to establish theright which he claims to the property indispute, or to have the said propertydeclared liable to be sold in execution of thedecree in his favour; subject to the result ofsuch action, if any, the order shall beconclusive.248. Whenever it shall appear to acompetent court, and be so found anddeclared in any judgment pronounced by itin any action instituted by or against anyperson claiming any property pointed out orseized in execution, that such claim isaltogether groundless, and wilfully preferredonly to defeat or delay the execution, everysuch claimant shall, in addition to hisliability to pay costs and damages, be liableto a fine not exceeding fifty rupees, andsuch fine shall be recovered as a fineimposed by a court in a criminal case.249. When a Fiscal has seized propertyof a partnership before or after itsdissolution, upon a writ of execution againstthe interest therein of any partner made byvirtue of ah execution against his individualproperty, any other partner or formerpartner having an interest in the propertymay, at any time before the sale, apply tothe court from which the writ of executionissued, upon an affidavit showing the facts,for an order directing the Fiscal to releasethe property and to deliver it to theapplicant.250. Upon such an application- theapplicant must give an undertaking, with atleast two sureties, approved by the Judge, tothe effect that he will account to thepurchaser upon the sale to be made byvirtue of the execution of the interest of thejudgment-debtor in the property seized, inlike manner as he would be bound toaccount to an assignee of such an interest;and that he will pay to the purchaser thebalance which may be found due upon theaccounting, not exceeding a sum specified inthe undertaking, which must be not lessthan the value of the interest of thejudgment-debtor in the property seized bythe Fiscal as fixed by the Judge.251. Where property of a partnershiphas been released upon an undertaking asprescribed in the last two sections, if theexecution by virtue of which the levy wasmade is set aside or is satisfied without asale of the interest levied upon, theundertaking enures to the benefit of eachjudgment-creditor of the same judgmentdebtor then having an execution in thehands of the Fiscal having authority to levyupon that interest, as if it had been given toobtain a release from a seizure made byvirtue of such an execution.252. Where property of a partnershiphas been so released, the interest of thejudgment-debtor therein may be sold by theFiscal, and the purchaser upon the saleacquires all that interest as if he was anassignee thereof.Of the Sale and Disposition o f the Propertyseized: (1) Of Sales Generally253. If the property seized is coin orcurrency notes the Fiscal shall deal with it inthe manner hereinafter directed in respect ofmoney received by the Fiscal on the sale ofproperty sold at the execution sale.254. When the property seized is adecree of court the judgment-creditor atwhose instance the seizure is made shall bedeemed the assignee thereof underassignment as of the date of the seizure,made by the person against whom he isexecuting the writ of execution, so far asthat person’s interest extends, and he mayrealize the decree in the manner hereinafterprovided for the execution of a decree by anassignee thereof.255. In the case of all other propertyseized by the Fiscal he shall proceed to thesale thereof in the manner following:—I.—In all cases of movable property theFiscal or Deputy Fiscal shall cause notice ofsale thereof to be given by beat of tom-tomor in such other manner as to securepublicity thereto, both at the place of saleand also where the seizure shall have beenmade, and such notice shall not be less thanthree days and not exceeding fourteen daysbefore the day of sale, unless the time beenlarged by any order of court, and shallspecify, as fairly and accurately as under thecircumstances is reasonably practicable—Undertaking,to whosebenefit itenures.Interest ofjudgmentdebtor may besold.Coin orcurrency notesseized howdealt with.How maydecree of court,seized berealized.Procedure incase of otherproperty seizedby Fiscal.Notice of sale:I.—Formovableproperty.V/109Cap. 105] CIVIL PROCEDURE CODEII.—Forimmovableproperty.[§36, Law 20 of1977.]Advertisementwherepropertyexceeds fivethousandrupees invalue.[§37, Law 20 of1977.]Proceedings atthe sale.(a) the property to be sold ;(b) the action in which, and(c) the place, and(d) day, and(e) hour at which the sale is to takeplace;(/) the amount of money for the levy ofwhich the writ issued.II.—In all cases of immovable propertythe like notice of sale shall be given as ishereinbefore required in sales of movableproperty, and the Fiscal, Deputy Fiscal, orother officer shall also cause to be madethree copies of the notice of sale in thelanguage of the court, and, where thelanguage of the court is also Tamil, threetranslations into that language, one of eachof which he shall cause to be posted at thecourt-house whence the execution issued, insome conspicuous part of the town orvillage in which the land is situate, and onsome conspicuous spot on the property forsale, each of which publications shall bemade ten days at the least before such saletakes place.256. Whenever the property seizedunder one writ shall exceed the value of fivethousand rupees, the Fiscal, Deputy Fiscalor other officer shall, in addition to thenotice hereinbefore required, advertise thesale thereof, enumerating briefly the goodsfor sale, the nature and situation of theland, and the time and place of the sale, in alocal daily newspaper or in such othermanner as the court may direct havingregard to the value of the property andother relevant circumstances; and no suchsale shall take place until it shall have beenso advertised once at least twenty days priorto the sale. It shall be lawful to theexecution-creditor or debtor to require thepublication of such sale to be made in anynewspaper to be named by him, and allcosts and charges attending suchadvertisements, particulars of which shall bealways given by the Fiscal with his return,shall be paid in advance by the partyrequiring such publication.258*. Every sale shall be held by anofficer of the Fiscal, or some other personduly authorized by the Fiscal or DeputyFiscal by writing under his hand.When the proceeds do not exceed the sumof seven thousand five hundred rupees, theFiscal or Deputy Fiscal shall recover a feeof three per centum on the proceeds actuallyrecovered on return thereof made to thecourt in respect of every sale and resale ofmovable property, and two per centum onthe proceeds of sale of immovable propertybelonging to the debtor.When the proceeds, whether of movableor immovable property, exceed that sum,the Fiscal or Deputy Fiscal shall recover afee of one hundred and fifty rupees and offive rupees for every thousand rupees of theproceeds over and above the said sum ofseven thousand five hundred rupees.And. in every case after the seizure ofproperty and publication of sale thereof, inwhich the sale shall be postponed or stayedat the request or with the concurrence of theparty suing out the writ, the Fiscal orDeputy Fiscal shall recover half of theabove fees on the estimated value of suchproperty from the party at whose instancethe writ shall be stayed, and in default ofimmediate payment thereof the Fiscal shallcertify the amount of such fees to the courtwhence the execution issued :Provided, however, that such fee shallnever exceed fifty rupees or the actualexpenditure already incurred by the Fiscaltowards carrying out the sale, whicheversum. shall be the larger. The fees recoveredunder this section shall be brought toaccount and appropriated in such manner asthe Secretary to the Treasury shall fromtime to time direct.259. (1) If at any time prior to the saleof immovable property seized in executionthe judgment-debtor can satisfy the courtthat there is reason to believe that theamount of the decree and of any unsatisfiedjudgment then in force against him may beraised by mortgage, or lease, or private saleof such property, or some part thereof, or ofany other immovable property of thejudgment-debtor, the court may on hisapplication postpone the sale of suchproperty for such period as it thinks properto enable him to raise the amount, and shallmake such order as to the payment of feesand charges due to the Fiscal as it maydeem fit.* Section 257 is repealed by Law No. 20 of 1977.Court may incertain casespostpone sale.V /110CIVIL PROCEDURE CODE [C a p .105Deposit bypurchaser.Payment infull.Default inpayment,consequenceof.Freshnotificationon resale.Bid by aco-sharer.(2) In such case the court shall grant acertificate to the judgment-debtor,authorizing him, within a period to bementioned therein, and notwithstandinganything contained in section 238, to makethe proposed mortgage, lease, or sale:Provided that all moneys payable undersuch mortgage, lease, or sale shall be paidinto court and not to the judgment-debtor;Provided also that no mortgage, lease, orsale under this section shall become absoluteuntil it has been confirmed by the court.260. On every sale of immovableproperty under this Chapter the persondeclared to be the purchaser shall payimmediately after such declaration, in everycase where the price does not exceed onehundred rupees, the full amount of, but inevery other case a deposit of twenty-five percentum on the amount of his purchasemoney to the officer conducting the sale,and in default of such deposit the propertyshall forthwith be put up again for sale.261. Where the price exceeds onehundred rupees the balance amount of thepurchase money shall be paid by thepurchaser on or before the thirtieth dayafter the sale of the property, or if thethirtieth day be a public holiday, then onthe first office day after the thirtieth day.262. In default of payment within theperiod mentioned in the last precedingsection, the deposit, after defraying theexpenses of the sale, shall be forfeited to,and shall go in reduction of the claim of, thejudgment-creditor, and the property shall beresold, and the defaulting purchaser shallforfeit all claim to the property and to anypart of the sum for which it maysubsequently be sold.263. Every resale of immovable propertyin default of payment of the purchasemoney within the period allowed for suchpayment shall be made after the issue of afresh notification in the manner and for theperiod hereinbefore prescribed for the sale.264. When the property sold inexecution of a decree is a share of undividedimmovable property, and two or morepersons, of whom one is a co-sharer,respectively advance the same sum at anybidding at such sale, such bidding shall bedeemed to be the bidding of such co-sharer.265. ‘ The Fiscal or other officerconducting any sale of immovable propertyunder this Chapter may, before acceptingany bid at such sale, satisfy himself as to thebona fides of the bidder, and his ability topay down the amount of deposit required;and in the event of his not being so satisfiedmay refuse to accept any such bid, and shallcontinue the sale as if no such bid had beenmade.266. The second sale, taking place inconsequence of such non-payment ofbalance of purchase money, shall be madein the manner hereinbefore prescribed forthe first sale, and if the amount of thepurchase money for which the property issold at such second sale shall fall short ofthe amount for which the first sale wasconcluded, then the first purchaser and hissureties, if any, shall be held liable to paythe Fiscal the amount of this difference, andthe Fiscal on non-payment thereof by suchpurchaser and his sureties within one weekafter demand made by him upon themrespectively in writing, shall certify theamount of the said difference to the courtwhence the execution issued. And the likecourse shall be observed in respect of anysubsequent sale rendered necessary byfailure in payment of the purchase amount.267. If at the sale of immovableproperty the highest bidder on beingdeclared the purchaser shall not forthwithpay down the amount of deposit required,and give good and sufficient security to thesatisfaction of the Fiscal, Deputy Fiscal, orother officer for the payment of the residue,the next highest bidder may be thereupondeclared the purchaser, and required tomake such deposit and security asaforesaid ; and in the same manner the otherbidders in rotation ; and each person failingto make such deposit and to give security asaforesaid may be held liable to pay thedifference between the amount of his offerand the sum finally settled at the sale, andthe Fiscal, on non-payment thereof by suchpersons respectively within one week afterdemand made by him upon them in writing,Fiscal to satisfyhimself as tobona fides ofbidder.Deficiency onresale to bepaid by firstpurchaser onFiscal’scertificate.On highestbidder notmakingdeposit, nexthighest may bedeclaredpurchaser;difference to bepaid by highestbidder onFiscal’scertificate.V / l l lCap. 105] CIVIL PROCEDURE CODEForfeiture ofdeposit.Differencesrealized toaugment thepurchasemoney.The amountcertified byFiscal to berecovered as byexecution ofdecree.Cost of notice,publication, orproclamation.shall certify the amount of the saiddifference in each case to the court whencethe execution issued:Provided, -however, that in case of defaultof the highest bidder, instead of declaringthe next highest bidder purchaser, theofficer holding the sale may forthwith putup the property for sale anew, or adjournthe sale, in which latter case the propertyshall again be advertised as before.268. If the price for which the propertyis finally sold at the second or anysubsequent sale is not’ less than that of thefirst sale, then the money deposited by thepurchaser at the first and other sales whichpreceded the final sale shall be paid to theexecution-creditor in satisfaction pro tantoof the judgment; and in the event of suchjudgment being so satisfied, and any surplusremaining, such surplus shall, afterdeducting any expenses consequent on thesale, be paid to the judgment-debtor.269. The differences between thebiddings of any person failing to make thedeposit and give the security required bysection 267 and the sum finally settled atany such sale and between the amount ofthe final sale and those of previous salesshall, when realized, be paid by the Fiscalinto the Government Agent’s office inaugmentation of the purchase money of thefinal sale.tom-tom or in any other mannerwhatsoever, shall in every instance, whereprovision for the payment thereof is nototherwise specially made, be prepaid by theperson at whose instance or in whoseinterest the same is required.271. No officer having any duty to No officerperform in connection with any sale under conducting salethis Chapter shall either by himself or tobid’another bid for, acquire, or attempt toacquire any interest in any property sold atsuch sale.272. (1) A holder of a decree in Holder ofexecution of which property is sold may, decree may bidwith the previous sanction of and subject to or purchasesuch terms as to credit being given him bythe Fiscal and otherwise as may be imposedby the court, bid for or purchase theproperty.(2) When a decree-holder purchases, the And purchasepurchase money and the amount due on the money may bedecree may, if the court thinks fit, be set off decree againstagainst one another, and the court inexecution of whose decree the sale is mademay enter up satisfaction of the decree inwhole or in part accordingly.273. In all cases the sale of immovable Place of sale ofproperty shall be conducted on the spot, immovableunless the court shall otherwise direct, or propertyunless on application in writing to the Fiscalor his deputy the parties shall consent to itsbeing conducted elsewhere.270. The amount certified by the Fiscalto be payable to him for half fees under theprovisions of section 258 and the amountsof the differences certified by the Fiscal anddirected to be reported to the court bysections 266 and 267 shall, in the case ofsuch half fees at the instance of the Fiscaland in the case of such differencesrespectively at the instance either of theFiscal, or of the judgment-creditor, or of thejudgment-debtor, be recoverable from thepersons declared in those sections to beliable to pay the same, in the same way as ifthe certificate were a decree for moneypassed by the court to which it is returnedagainst those persons; and the cost (to befixed by the court) of any notice,publication, or proclamation required underany of the provisions of this Ordinance tobe given or made by the Fiscal by beat of(2) Of Sales o f Movable Property274. If the property to be sold is a Sale of anegotiable instrument or a share in any ?°g°tiable7 , instrument or apublic company or corporation, the court share in anymay direct the Fiscal, instead of selling it by publicpublic auction, to make the sale of such companyinstrument or share through a broker at themarket rate of the day.275. (1) In the case of other movable Sale of otherproperty, the price shall be paid at the time movableof sale, and in default of payment the propertyproperty shall forthwith be again put up forsale.(2) On payment of the purchase money,the officer holding the sale shall grant areceipt for the same, and the sale shallbecome absolute.V /112CIVIL PROCEDURE CODE [Cap. 105What mayvitiate sale.Delivery topurchaser.Delivery wherethird party is inpossession.Delivery ofunsecured debtor share.Endorsementof negotiableinstrument orsharecertificate.276. No irregularity in publishing orconducting the sale of movable propertyshall vitiate the sale unless substantialdamage has been caused to the personimpeaching the sale thereby.277. When the property sold is anegotiable instrument or other movableproperty of which actual seizure has beenmade, the property shall be delivered to thepurchaser.278. When the property sold is anymovable property to which the judgmentdebtor is entitled, subject to a right ofpossession of some other person, thedelivery thereof to the purchaser shall bemade by giving notice to the person inpossession prohibiting him from deliveringpossession of the property to any personexcept the purchaser.“ A. B. by C. D., Judge of the DistrictCourt o f…………….(or as the case may be),in an action by E. F. against A. B. “(2) Until the transfer of such instrumentor share the court may, by order, appointsome person to receive any interest ordividend due thereon, and to sign a receiptfor the same; and any endorsement made,or document executed, or receipt signed asaforesaid, shall be as valid and effectual forall purposes as if the same had been made,or executed, or signed by the party himself.281. In the case of any movable In case of otherproperty not hereinbefore provided for, the movablecourt may make an order and execute such ^,ay makedocument as may be necessary vesting such vesting order,property in the purchaser, or as he maydirect-; and such property shall vestaccordingly.(3) Of Sales o f Immovable Property279. When the property sold is a debtnot secured by a negotiable instrument, or isa share in any public company orcorporation, the assignment thereof shall bemade by a certificate of sale in favour of thepurchaser signed by the Fiscal, who shallforthwith, by a written notice, prohibit thecreditor from receiving the debt or anyinterest thereon, and the debtor frommaking payment thereof to any personexcept the purchaser, or the person in whosename the share may be standing frommaking any transfer of the share to anyperson except the purchaser, or receivingpayment of any dividend or interest thereon,and the manager, secretary, or other properofficer of the company from permitting anysuch transfer or making any such paymentto any person except the purchaser.280. (1) If the endorsement orconveyance of the party in whose name anegotiable instrument or a share in anypublic company or corporation is standingis required to transfer such instrument orshare, the Judge may endorse theinstrument or the certificate of the share, ormay execute such other document as may benecessary.The endorsement or execution shall be inthe following form or to the like effect:—282. (1) The Fiscal shall report to the Sale notcourt every sale of immovable property absolute untilmade by him or under his direction withinten days after the same shall have been confirmationmade. And no sale of immovable property by court;shall become absolute until thirty days haveelapsed subsequent to the receipt of suchreport, and until such sale has beenconfirmed by the court.(2) The decree-holder, or any person and may be setwhose immovable property has been sold aside forunder this Chapter, or any personestablishing to the satisfaction of the courtan interest in such property, may apply bypetition to the court to set aside the sale onthe ground of a material irregularity inpublishing or conducting i t ; but no saleshall be set aside on the ground ofirregularity unless the applicant proves tothe satisfaction of the court that he hassustained substantial injury by reason ofsuch irregularity, and unless the grounds ofthe irregularity shall have been notified tothe court within thirty days of the receipt ofthe Fiscal’s report.(3) In every such application thepurchaser shall be made respondent to thepetition.283. (1) If no such application as is Ordermentioned in the last preceding section is confirming themade within the thirty days, or if such s e’V /113Cap. 105] CIVIL PROCEDURE CODEOrder settingaside the sale.Whenpurchaser mayapply to setaside sale.Whenpurchaser mayget back hispurchasemoney.Conveyance topurchaser.application is made and the objectiondisallowed, the court shall at any time afterthe expiration of the thirty days, on theapplication of the decree-holder or of thepurchaser, pass an order confirming the saleas regards the parties to the suit and thepurchaser:Provided that no order confirming thesale shall be made if it appear to the courtthat the judgment-debt was satisfied at thetime that the writ of execution issued.(2) If such application is made, and ifthe objection is allowed, the court shall passan order setting aside the sale.284. The purchaser at any such sale mayapply to the court by petition on summaryprocedure to set aside the sale, on theground that the person whose propertypurported to be sold had no saleable interesttherein, and the court may, on suchapplication, make such order as it thinksfit:Provided that both the judgment-debtorand the decree-holder are made respondentsto the petition.285. (1) When a sale of immovableproperty is set aside under sections 282, 283,or 284, when it is found that the judgmentdebtor had no saleable interest in theproperty which purported to be sold, andthe purchaser is for that reason deprived ofit, the purchaser shall be entitled to receiveback his purchase money from any personto whom the purchase money has been paid.(2) An order for the repayment of thesaid purchase money may be made by thecourt on any application under sections 282,283 or 284, provided that the personagainst whom the order is directed is partythereto, and such order may be enforcedagainst such person under the rulesprovided by this Ordinance for theexecution of a decree for money.286. If the court shall have confirmedthe sale and the purchaser shall have paidthe full amount of the purchase moneyaccording to the conditions of sale, andshall have supplied the Fiscal or DeputyFiscal with stamps of the proper amountrequired by law for the conveyance of theland sold to him (which stamps he shall bebound to supply when he pays the purchasemoney in full), and if the sale was noteffected in execution of a decree specificallydirecting the sale, then the Fiscal or DeputyFiscal shall forthwith make out and executea conveyance in duplicate of the propertyaccording to the form No. 56 in the FirstSchedule, or such other form, or expressedin such terms, as the court may deemexpedient, which conveyance shall bebinding and of force, though not executedbefore a notary public.The Fiscal or Deputy Fiscal shall deliverthe original to the purchaser and transmitthe duplicate to the Registrar of Lands forthe district in which the land is situate, inlike manner as now is or shall be required tobe done by notaries in respect of deedsexecuted before them; and the Fiscal orDeputy Fiscal shall be entitled to recoverfor such conveyance—(a) when the amount of purchase shallbe under thirty rupees, a fee of fiftycents;(b) when it shall exceed thirty rupees, afee of one rupee;(c) when it shall exceed one hundredrupees, a fee of one rupee and fiftycents;(d) when it shall exceed two hundredrupees, a fee of two rupees and fiftycents; and(e) when it shall exceed five hundredrupees, a fee of three rupees andseventy-five cents, and no more;and such fee shall be brought to accountand appropriated in such manner as theSecretary to the Treasury shall direct.But if the sale was effected in execution ofa decree specifically directing the sale, thenthe conveyance shall be made in conformitywith the directions of the court contained inthe decree:Provided, however, that to allconveyances made by the Fiscal to completea sale effected in execution of a decree ofcourt, in the event of there being noConveyance tocontainsufficient mapof thepremises.V/114CIVIL PROCEDURE CODE [Cap. 105[§2, 32 of1957.]Court mayorder deliveryof possessionto purchaser.Order how tobe enforced.Mode ofdelivery whereproperty is inoccupancy ofperson entitledto occupy.diagram or map of the premises which arethe subject of the conveyance alreadyappended to a title deed thereof delivered tothe purchaser there shall, if the purchaserso requires but not otherwise, be annexed asufficient map exhibiting, when possible,some permanent physical feature of theground; and the purchaser shall pay inadvance the expense of preparing it inaddition to the fee prescribed for theconveyance. Such diagram or map shall beprepared by a competent surveyor licensedby the Fiscal or Deputy Fiscal for thatpurpose, and such surveyor shall be anofficer of the Fiscal within the meaning ofsection 325, and shall for the purposes ofthe Penal Code be deemed to be a publicservant.287. (1) When the property sold is inthe occupancy of the judgment-debtor or ofsome person on h’s behalf, or of someperson claiming under a title created by thejudgment-debtor subsequently to the seizureof such property, and a conveyance inrespect thereof has been made to thepurchaser under section 286, the court shallon application by the purchaser, orderdelivery to be made by putting thepurchaser or any person whom he mayappoint to receive delivery on his behalf inpossession of the property, and, if need be,by removing any person bound by thedecree who refuses to vacate the same.(2) An order for delivery of possessionmade under this section may be enforced asan order falling under head (C) section 217,the purchaser being considered asjudgment-creditor.288. When the property sold is in theoccupancy of a tenant or other personentitled to occupy the same, and aconveyance in respect thereof has beenmade to the purchaser under section 286,the court shall order delivery thereof to bemade by affixing a notice of the sale havingtaken place, in the language of the court,and, where the language of the court is alsoTamil, in that language, in someconspicuous place on the property, andproclaiming to the occupant by beat of tomtom, or in such other mode as may becustomary, at some convenient place, thatthe interest of the judgment-debtor has beenV /115transferred to the purchaser, and the cost(to be fixed by the court) of suchproclamation shall in every case be prepaidby the purchaser.289. The right and title of the judgmentdebtor or of any person holding under himor deriving title through him to immovableproperty sold by virtue of an execution isnot divested by the sale until theconfirmation of the sale by the court andthe execution of the Fiscal’s conveyance.But if the sale is confirmed by the court andthe conveyance is executed in pursuance ofthe sale, the grantee in the conveyance isdeemed to have been vested with the legalestate from the time of the sale.290. The Fiscal, on the day of the sale,or at any time thereafter until theconfirmation of the sale by the court andthe execution of the Fiscal’s conveyancemay at his discretion, and if provided withthe necessary funds therefor by thepurchaser or by the judgment-creditor, ordebtor, himself or by his agent dulyauthorized in writing enter into possessionof the immovable property sold by virtue ofthe execution, and retain possession of thesame until the confirmation of the sale bythe court and the execution of theconveyance in pursuance thereof.291. The person in possession ofimmovable property sold by virtue of anexecution may, until the confirmation of thesale by the court and the execution of theFiscal’s conveyance, use and enjoy the sameas follows, without being chargeable withcommitting waste:—(1) He may use it and enjoy it in likemanner and for the like purposes asit was used and enjoyed before thesale, doing no permanent injury tothe property.(2) He may make the necessary repairsto a building or other erectionthereupon. But this provision doesnot permit an alteration in the formor structure of the building or othererection.(3) He may use and improve the land inthe ordinary course of husbandry,and may collect, gather, harvest,Right and titleof judgmentdebtor notdivested bysale tillconfirmation,and executionof Fiscal’Sconveyance.Fiscal mayenter propertysold.Person inpossession mayuse and enjoyuntilconfirmationof sale.Cap. 105] CIVIL PROCEDURE CODEand store the crops and producethereof, but shall not be entitled tothem.(4) He may apply any wood or timberon the land to the necessaryreparation of a fence, building, orother erection which was thereuponat the time of the sale.Moneys paid to, and realized by, the Fiscal296. Whenever any person, whether Mode ofacting for himself or as an attorney-at-law payment tofor any other person, has occasion to pay attorneys-atany sum of money into any court to the law and othercredit of any case, he shall deposit such sum Personsof money to the credit of such case in the i97^jLaW 2° °fappropriate bank account.On confirmation andexecution ofconveyance,Fiscal todeliverpossession tograntee.292. On the sale being confirmed by thecourt and the conveyance executed inpursuance of the sale, the Fiscal or personin possession of the immovable propertysold shall forthwith give possession of thesame, together with all the crops andproduce (if any) collected, gathered,harvested, and stored subsequent to the sale,to the grantee in the conveyance; and if thesale is not confirmed, the Fiscal or his agentshall forthwith, if in possession, restore thejudgment-debtor or any person holdingunder him to possession of the immovableproperty together with all the crops andproduce (if any) collected, gathered,harvested, and stored whilst the Fiscal or hisagent was in possession.Judgmentdebtor may berestrained fromwaste.293. If at any time before the executionof the Fiscal’s conveyance the judgmentdebtor, or any other person in possession ofthe property sold, commits, or threatens tocommit, or makes preparations forcommitting waste thereupon, the court fromwhich execution issued may, upon theapplication of the purchaser or his agent orattorney, and proof by affidavit of the facts,grant, without notice, an order restrainingthe wrongdoer from committing waste uponthe property.Punishment for 294. If the person against whom such ancommitting order is granted commits waste in violationwaste’ thereof after the service upon him of theorder, the court, upon proof by affidavit ofthe facts, may grant an order requiring himto show cause at a time and place thereinspecified why he should not be punished fora contempt.And for 295. If upon the return of the order todisobeying show cause it satisfactorily appears that theorder’ person required to show cause has violatedthe former order, the court may punish himin manner provided by law for thepunishment of contempts of court.297. (1) Whenever the Fiscal receives Mode ofor realizes a sum of money in the course of Payment l°the execution of a decree or otherwise, he ofshall issue a receipt for such sum to the 197xjperson making payment, and shall forthwithdeposit such sum of money to the credit ofsuch case in the appropriate bank account.(2) In this and the preceding section“appropriate bank account” means the bankaccount of the court to whose credit orunder whose authority such money is paid,received, or realized.Arrest and Imprisonment298. (1) Where, after the issue of a writ Issue offor the execution of a decree for the warrant forpayment of money, the court is satisfied on in execution 0fr ,, ,. _ , arrest of debtorthe application of the judgment-creditor, decree forafter such inquiry as the court may deem moneynecessary, that the judgment-debtor—(a) is about to abscond or leave thejurisdiction of the court with intentto defraud the judgment-creditor orwith intent to obstruct or delay theexecution of the decree; or(b) is about to leave Sri Lanka undercircumstances affording reasonableprobability that the judgmentcreditor will thereby be obstructedor delayed in the execution of thedecree; or(c) has, on or after the date of theinstitution of the action in whichthe writ of execution was issued,concealed, transferred or removedhis property or any part thereofwith intent to defraud thejudgment-creditor or with intent toobstruct or delay the execution ofthe decree, or has, on or after suchV/116CIVIL PROCEDURE CODE [Cap. 105date, committed with the like intentany act of bad faith in relation tohis property; or(d) has been guilty of any act wherebyany creditor, other than thejudgment-creditor at whose instancethe writ of execution was issued,has been given any undue,unreasonable or fraudulentpreference; ordecree inclusive of interest, if any, up to thedate of the decree but exclusive of anyfurther interest and of costs, is less than onethousand five hundred rupees.302. No warrant under section 298 or Woman notnotice under section 299 shall be issued !iable t0 ?rrestwhere the judgment-debtor is a woman; andno woman shall be arrested or committed tojail in execution of any decree for thepayment of money or of costs.(e) has, at any time since the date of thedecree, had sufficient means to paythe amount of the decree, or anypart of that amount, and hasrefused or neglected to pay suchamount or part thereof; or(/) being a trustee or person acting inany other fiduciary capacity, has,when ordered to pay by a court,made default in the payment of anysum in his possession or under hiscontrol,303. Where a judgment-debtor to whom Warrant toa notice under section 299 has been issued ‘ss“e wbei)efails to appear on the day specified in the apPearonSt°notice, the court may issue a warrant for his notice,arrest.304. Subject to the provisions of Execution ofChapter XXIII, a judgment-debtor for warrant ofwhose arrest a warrant has been issuedunder section 298 or section 303 may bearrested at any hour, and on any day, and inany place, and shall thereupon, as soon aspracticable, be brought before the court.the court may, subject to the otherprovisions of this Chapter, issue a warrantfor the arrest of the judgment-debtor andfor his production in court with a view tohis committal to jail in execution of thedecree.305. Where a judgment-debtor who has Officerbeen arrested on a warrant pays the amount effecting arrestlo r^lc&scof the decree in execution of which he is debtor onarrested, and the costs of the arrest, to the payment ofofficer arresting him, such officer shall at amount ofonce release him from custody. costs of arrest(2) A decree for the payment of costsonly shall, for the purposes of theapplication of the provisions of subsection(1), be deemed to be a decree for thepayment of money.306. Where a judgment-debtor is Discharge ofbrought before the court after arrest on a debtor where• . . . . – amount ofwarrant or appears in court in pursuance of decree anda notice issued under section 299, and costs of arresteither_ paid into court.Issue of noticeon debtor asalternative towarrant.299. The court may, in its discretion,instead of issuing a warrant under section298, issue a notice on the judgment-debtorcalling upon him to show cause, on a dateto be specified in the notice, why he shouldnot be committed to jail in execution of thedecree referred to in that section.Application forwarrant to bemade bypetition andaffidavit.300. Every application under section 298shall be made by petition supported byaffidavit; and it shall not be necessary toname the judgment-debtor as respondent toany such application.No arrest for 301. No warrant under section 298 orlum.u™er notice under section 299 shall be issued inRs. 1,500. . . . . . . . .[§40, Law 20 of any case in which the sum awarded in the1977.](a) pays into court the amount of thedecree and, if he has been broughtbefore the court under a warrant,the costs of the arrest, or(b) gives security for the payment of thesame to the satisfaction of thejudgment-creditor,the court shall release him from arrest ordischarge him from such notice, as the casemay be. If such payment is not made or ifsuch security is not given, the court shallcall upon the judgment-debtor to showcause why he should not be committed tojail.V/117Cap. 105]Debtor whohas no cause toshow to becommitted tojail.Debtor whohas cause toshow to bedischarged orcommitted tojail after’inquiry.Writtenstatement to befiled by debtorwho desires toshow cause.CIVIL PROCEDURE CODE307. Where the judgment-debtor, onbeing called upon to show cause undersection 306, has no cause to show, the courtshall commit him to jail.308. Where the judgment-debtor, onbeing called upon to show cause undersection 306, proves to the satisfaction of theco u rtfa) that any material allegation of fact,made in the affidavit of thejudgment-creditor or given inevidence before the court prior tothe issue of the warrant or notice, inconsequence of which such warrantor notice was issued, was untrue orincorrect; or310. (1) Where the judgment-debtor Debtor to bedesires to show cause why he should not be committed tocommitted to jail, the court may appoint a Js^c’u°rity°forVedate for an inquiry and may, pending such appearanceinquiry, order the judgment-debtor to be Pendingdetained in prison or take sufficient security inqmryfrom him that he will appear in court whencalled upon.(2) A judgment-debtor who is notdetained in prison pending the inquiry maybe arrested on a warrant issued by the courtat any time for the purposes of such inquiryor with a view to his committal to jail.(3) The inquiry referred to in subsection(1) may be adjourned from time to time byorder of the court.(b) that for any other reason thewarrant or notice should not havebeen issued, or was irregularlyissued in the first instance;311. Where a judgment-debtor is Issue ofcommitted to jail, the court shall issue a warrant ofwarrant substantially in the form No. 61 in P°.jnmittal ,0the First Schedule.he shall, if under arrest, be released or, if hehas appeared on notice, be discharged fromsuch notice; but if he fails or is unable tofurnish such proof the court shall commithim to jail:Provided that if, on the date on which thejudgment-debtor is brought or appearsbefore the court, the court is satisfied that awarrant for the arrest of the judgmentdebtor may be issued on any ground otherthan that on which the warrant or noticewas issued in the first instance, the courtmay commit the judgment-debtor to jail.309. Where a judgment-debtor contendsthat any material allegation of fact, made inthe affidavit of the judgment-creditor orgiven in evidence before the court prior tothe issue of the warrant or notice, is untrueor incorrect, he shall file in court a writtenstatement specifying which of the allegationsin such affidavit or in such evidence isimpugned as untrue or incorrect; and wherea judgment-debtor contends that thewarrant or notice should not have beenissued or was irregularly issued, he shall filein court a written statement of the groundson which such contention is based.312. Where a judgment-debtor has been Debtorreleased after arrest on a warrant or dischargeddischarged from a notice under section 306 306orationor section 308, no further proceedings shall 308 not to bebe taken as hereinbefore provided with a rea’Testedview to the committal to jail of thatjudgment-debtor in execution of the decreein respect of which such warrant or noticewas issued.313. No judgment-debtor shall bearrested in execution of a decree unless anduntil the decree-holder pays into court suchsum as the Judge thinks sufficient for thesubsistence of the judgment-debtor from thetime of his arrest until he can be broughtbefore the court, and, where the writ is to beexecuted in another district, such furthersum as the Judge thinks sufficient to coverthe expenses of his transport to the courtissuing the writ.Sufficientinterimsubsistencemoney to bedepositedbefore arrest.314. And when a judgment-debtor is Subsistencecommitted to jail in execution of a decree, ad°^ancethe court shall fix for his subsistence such imprisonmentmonthly allowance as he may be entitled to to be fixed onat rates to be fixed by order of Government commitment,from time to time, as occasion shall require.315. (1) The monthly allowance fixed Allowance toby the court shall be supplied to the Fiscal be pa‘d .by the party on whose application the advanceV /118CIVIL PROCEDURE CODE [Cap. 105Power to varyallowance ororderadditionalpayments.decree has been executed by monthlypayments in advance before the first day ofeach month.(2) The first payment shall be made forsuch portion of the current month asremains unexpired before the judgmentdebtor is committed to jail.315A. (1) Where a judgment-debtorwho has been committed to jail is, with theapproval of the Commissioner of Prisons,either given any special diet on medicaladvice or admitted to any hospital forexamination or treatment, and the monthlyallowance fixed under section 314 for thesubsistence of that judgment-debtor isinsufficient to meet the cost of such specialdiet, examination or treatment, the courtmay by order, on application made bythe Fiscal, and after hearing suchrepresentations as may be made by the partyon whose application the decree has beenexecuted and such other evidence as thecourt may deem necessary—(a) vary the monthly allowance fixedunder section 314, and specify theperiod during which the allowanceso varied shall be payable, or(b) fix such additional sum as may, inthe opinion of the court, benecessary to meet the cost of suchexamination or treatment inhospital and all expenses incidentalthereto or connected therewith, andmay specify in that order the timeand manner of payment of suchadditional sum.(2) Any order made by the court undersubsection (1) may at any time be varied orcancelled by the court by a further order, onapplication made by the Fiscal or by theparty on whose application the decree hasbeen executed, and after such inquiry as thecourt may deem necessary.(3) The provisions of section 315 shallapply to the monthly allowance as variedunder this section, in like manner as thoseprovisions apply to the monthly allowanceoriginally fixed by the court.(4) Any additional sum for the paymentof which an order is made under this sectionshall be supplied to the Fiscal by the partyon whose application the decree has beenexecuted, in the manner and at the timespecified in the order of the court.316. Sums of money disbursed by thedecree-holder under section 315 or section315A shall be deemed to be costs in theaction:Provided that the judgment-debtor shallnot be detained in jail or arrested onaccount of any sum so disbursed;Provided further, that where at the timeof the discharge of the judgment-debtorfrom jail there remains any unexpendedbalance out of the sum so disbursed, suchbalance shall be repaid by the Fiscal to thedecree-holder and shall not be deemed to becosts in the action.317. (1) The judgment-debtor shall bedischarged from jail—(a) on the decree being fully satisfied ; or(b) at the request of the person onwhose application he has beenimprisoned; or(c) on such person omitting to pay theallowance as hereinbefore directed ;or(d) if the judgment-debtor be declaredan insolvent, and an order ininsolvency is made by the DistrictCourt protecting him from arrest;or(e) when the term of his imprisonmentas limited by section 318 is fulfilled :Provided that in the first, second, third,and fourth cases mentioned in thissubsection the judgment-debtor shall not bedischarged without the order of the court.(2) A judgment-debtor discharged underthis section is not thereby discharged fromhis debt, but he cannot be rearrested underthe decree in execution of which he wasimprisoned.Disbursementsby decreeholder to bedeemed costs.When debtorentitled to bedischargedfrom jail.V/119Cap. 105] CIVIL PROCEDURE CODELimit ofimprisonment.Endorsementon the warrant.Application forexecution ofdecree fordelivery ofmovableproperty, howto be made.Form of writ.Fiscal toprocuredeliverythereunder.Procedure ondefault.318. No person shall be imprisoned inexecution of a decree for a longer periodthan six months.319. The Fiscal shall endorse upon thewarrant of arrest the day on and the mannerin which it was executed, and if the latestday specified in the warrant for the returnthereof has been exceeded, the reason of thedelay; or if it was not executed, the reasonwhy it was not executed, and shall returnthe warrant with such endorsement to thecourt.(B)DECREES FOR DELIVERY OF MOVABLEPROPERTY320. If the decree is for any specificmovable or for any share in a specificmovable, application to the court forexecution of the decree by seizure anddelivery may be made by the judgmentcreditor in the manner and according to therules prescribed for execution of decreesunder head {A) so far as the same areapplicable; and if the court on suchapplication is satisfied that the judgmentcreditor is entitled to obtain execution ofthe decree, it shall direct a writ of executionto issue to the Fiscal in the form No. 62 inthe First Schedule.321. (1) Upon receiving the writ theFiscal or his officer shall as soon asreasonably may be repair to the dwellinghouse of place of residence of the judgmentdebtor, and there showing him the writ shalldemand delivery of the movable or, ifpracticable, the share thereof specifiedtherein, and on his failing to comply withhis demand, the Fiscal or his officer shall, ifpossible, seize the said specific movable orshare thereof, and deliver the same to thejudgment-creditor or to the personauthorized by him to receive it.(2) If the judgment-debtor fails tocomply with the Fiscal’s demand, and if theFiscal is unable to obtain for the judgmentcreditor delivery of the specific movable orshare thereof mentioned in the writ, then thecourt upon being satisfied of these factsmay, on application made to it by thejudgment-creditor by petition, to which thejudgment-debtor is made respondent, directa writ of execution by seizure and sale of thejudgment-debtor’s property, or a warrantfor the arrest of the judgment-debtor, orboth, to issue to the Fiscal.322. The amount of money directed to Amount to bebe levied in the writ of execution by seizure levied andand sale issuing under the preceding section execution,shall be the amount of pecuniary loss asnearly as the court can estimate it, which isoccasioned to the judgment-creditor byreason of the judgment-debtor’s default inmaking delivery of the specific movable orshare thereof according to the terms of thedecree, and which the court shall award byway of compensation to the judgmentcreditor by the order directing the writ toissue ; and the execution of this writ, and ofthe warrant of arrest issuing under the samesection, shall be effected according andsubject to the rules prescribed for the writ ofexecution and warrant of arrest issued forthe enforcement of decrees falling underhead (A ).(C)DECREES FOR POSSESSION OF IMMOVABLEPROPERTY323. If the decree or order is for the Application forrecovery of possession of immovable execution of, . , , decree forproperty or any share thereof by the deUvery ofjudgment-creditor, or if it directs the immovablejudgment-debtor to yield or deliver up property, howpossession thereof to the judgment-creditor,application to the court for execution of thedecree may be made by the judgmentcreditor in the manner, and according to therules, prescribed for execution of decreesunder head (A), so far as the same areapplicable; and if the court on suchapplication is satisfied that the judgmentcreditor is entitled to obtain execution ofthe decree, it shall direct a writ of executionto issue to the Fiscal in the form No. 63 in Form ofwrit,the First Schedule.324. (1) Upon receiving the writ the Fiscal how toFiscal or his officer shall as soon as Proceed, , , , thereunder,reasonably may be repair to the ground, andthere deliver over possession of the propertydescribed in the writ to the judgmentcreditor or to some person appointed byhim to receive delivery on his behalf, and ifV /120CIVIL PROCEDURE CODE [Cap. 105Procedure inevent ofresistance toexecution ofwrit or deliveryof property.[§41, Law 20 of1977.]need be by removing any person bound bythe decree who refuses to vacate theproperty:Provided that as to so much of theproperty, if any, as is in the occupancy of atenant or other person entitled to occupythe same as against the judgment-debtor,and not bound by the decree to relinquishsuch occupancy, the Fiscal or his officershall give delivery by affixing a copy of thewrit in some conspicuous place on theproperty and proclaiming to the occupantby beat of tom-tom, or in such other modeas is customary, at some convenient place,the substance of the decree in regard to theproperty; andProvided also that if the occupant can befound, a notice in writing containing thesubstance of such decree shall be servedupon him, and in such case no proclamationneed be made.(2) The cost (to be fixed by the court) ofsuch proclamation shall in every case beprepaid by the judgment-creditor.Resistance to Execution o f ProprietoryDecrees325. (1) Where in the execution of adecree for the possession of movable orimmovable property the Fiscal is resisted orobstructed by the judgment-debtor or anyother person, or where after the officer hasdelivered possession, the judgment-creditoris hindered or ousted by the judgmentdebtor or any other person in takingcomplete and effectual possession thereof,and in the case of immovable property,where the judgment-creditor has been sohindered or ousted within a period of oneyear and one day, the judgment-creditormay at any time within one month from thedate of such resistance or obstruction orhindrance or ouster, complain thereof to thecourt by a petition in which the judgmentdebtor and the person, if any, resisting orobstructing or hindering or ousting shall benamed respondents. The court shallthereupon serve a copy of such petition onthe parties named therein as respondentsand require such respondents to fileobjections, if any, within such time as theymay be directed by court.(2) When a petition under subsection (1)is presented, the court may, upon theapplication of the judgment-creditor madeby motion ex parte, direct the Fiscal topublish a notice announcing that the Fiscalhas been resisted or obstructed in deliveringpossession of such property, or that thejudgment-creditor has been hindered intaking complete and effectual possessionthereof or ousted therefrom, as the case maybe, by the judgment-debtor or other person,and calling upon all persons claiming to bein possession of the whole or any part ofsuch property by virtue of any right orinterest and who object to possession beingdelivered to the judgment-creditor to notifytheir claims to court within fifteen days ofthe publication of the notice.(3) The Fiscal shall make publication byaffixing a copy of the notice in the languageof the court, and, where the language of thecourt is also Tamil, in that language, insome conspicuous place on the property andproclaiming in the customary mode or insuch manner as the court may direct, thecontents of the notice. A copy of such noticeshall be affixed to the court-house and if thecourt so orders shall also be published inany daily newspaper as the court may direct.(4) Any person claiming to be inpossession of the whole of the property orpart thereof as against the judgmentcreditor may file a written statement of hisclaim within fifteen days of the publicationof the notice on such property, setting outhis right or interest entitling him to thepresent possession of the whole property orpart thereof and shall serve a copy of suchstatement on the judgment-creditor. Theinvestigation into such claim shall be takenup along with the inquiry into the petitionin respect of the resistance, obstruction,hindrance or ouster complained of, afterdue notice of the date of such investigationand inquiry has been given to all personsconcerned.326. (1) On the hearing of the matterof the petition and the claim made, if any,the court, if satisfied—(a) that the resistance, obstruction,hindrance or ouster complained ofwas occasioned by the. judgmentdebtor or by some person at hisinstigation or on his behalf;[§9, 53 of1980.]Punishment ofpersonobstructing.[§10, 53 of1980.]V /121Cap. 105] CIVIL PROCEDURE CODE[§41, Law 20 of1977.][§41, Law 20 of1977.]If resistance bemade by bonafide claimant inpossession,court todismiss thepetition.[§41, Law 20 of1977.](b) that the resistance, obstruction,hindrance or ouster complained ofwas occasioned by a person otherthan the judgment-debtor, and thatthe claim of such person to be inpossession of the property, whetheron his own account or on accountof some person other than thejudgment-debtor, is frivolous orvexatious; or(c) that the claim made, if any, has notbeen established,shall direct the judgment-creditor to be putinto or restored to the possession of theproperty and may, in the case specified inparagraph (a), in addition sentence thejudgment-debtor or such other person toimprisonment for a period not exceedingthirty days.(2) Where any claim is established onlyto a share of any property, it shall becompetent to the court in any order madeunder the preceding subsection to direct thatthe judgment-creditor be put into orrestored to possession of the share of theproperty to which no claim has beenestablished.(3) The court may make such order asto the costs of the application, the chargesand expenses incurred in publishing thenotice and the hearing and the reissue ofwrit as the court shall deem meet.327. Where the resistance or obstructionor hindrance or ouster is found by court tohave been occasioned by any person otherthan the judgment-debtor, claiming in goodfaith to be in possession of the whole ofsuch property on his own account or onaccount of some person other than thejudgment-debtor by virtue of any right orinterest, or where the claim notified is foundby the court to have been made by a personclaiming to be in possession of the whole ofsuch property on his own account or onaccount of some person other than thejudgment-debtor, by virtue of any right orinterest, the court shall make orderdismissing the petition.328. Where any person other than the Court shalljudgment-debtor or a person in occupation ‘“vest*gate. . . . . . . , dispute if bonaunder him is dispossessed of any property in f,the expiration of twelve months from the ^™ ent mt0date upon which probate or grant of [§85, Law 20 ofadministration issued to him, or within such ,977-ifurther time as the court may allow, a trueand final account of his executorship oradministration, as the case may be, verifiedon oath or affirmation, with all receipts andvouchers attached, and may at the sametime pay into court any money which mayhave come to his hands in the course of hisadministration to which any minor orminors may be entitled.554. If any executor or administrator Executor orshall fail to pay over to the creditors, heirs, administratorlegatees, or other persons the sums ofmoney to which they are respectively within the yearentitled, within one year after probate or |iable for, . . . , . . interest,administration granted, such executor oradministrator shall be liable to pay interestout of his own funds for all sums which heshall retain in his own hands after thatperiod, unless he can show good andsufficient cause for such detention.554A. When any person shall die When awithout leaving a will and leaving an estate certificate of, 7 . . . heirship mayunder twenty thousand rupees in value, any ^ appljed forheir of the deceased shall be entitled to [§86, Law 20 ofapply to the District Court of the district 1977-1within which he resides, or within which thedeceased resided at the time of his death, orV /156CIVIL PROCEDURE CODE [Cap. 105Mode ofapplication.[§86, Law 20 of1977.]Court ifstatisfied withproof to makeorder nisi.[§86, Law 20 of1977.]At finalhearing onobjection courtshall frameissues.[§86, Law 20 of1977.]When ordernisi shall bemade absoluteand whendischarged.[§86, Law 20 of1977.]within which any property of the deceased’sestate is situate, for a certificate that he is anheir of the deceased.5S4B. The application shall be made onpetition by way of summary proceduresetting out the relevant facts of the absenceof the will, the death of the deceased, thevalue of the estate and the heirs of thedeceased to the best of the petitioner’sknowledge, and the grounds upon which thepetitioner claims to be an heir.The application shall be supported bysufficient evidence by way of affidavit toafford prima facie proof of the materialallegations in the petition, and shall namethe next of kin of the deceased asrespondents.554C. If the court is of opinion that thematerial allegations of the petition areproved, it shall make an order nisi declaringthe petitioner’s heirship, which order shallbe served on the respondents and upon suchother persons as the court shall think fit todirect, and shall come on for final hearingand disposal on a day to be named therein.S54D. If on the day appointed for finalhearing, or on the day to which it may havebeen adjourned, the respondent or anyperson upon whom the order nisi has beendirected to be served, or any person thenappearing to be interested in theadministration of the deceased’s property,satisfies the court that there are grounds ofobjection to the application, such as oughtto be tried on viva voce evidence, then thecourt shall frame the issues which appear toarise between the parties, and shall try thesame forthwith or on a day to be appointedfor the purpose.554E. If at the final hearing or on thedetermination of the issues thus framed, itshall appear to the court that the primafacie proof of the material allegations of thepetition has not been rebutted, then theorder nisi shall be made absolute, and acertificate of heirship shall issue accordinglyto the petitioner. If, on the other hand, itshall then appear to the court that the primafacie proof of any material allegations in thepetition has been rebutted and that thepetitioner has failed to establish his claimthe order nisi shall be discharged, and thepetition dismissed:Provided that it shall be open to any ofthe respondents at such hearing of issues toestablish his right to be an heir of thedeceased and to have a certificate ofheirship issued to him, whether the petitionis dismissed or not.CHAPTER XXXVIIIAI n s o l v e n t T e s t a m e n t a r y E s t a t e s554F. The estate of a deceased personshall be deemed to be insolvent—(i) If upon the basis of a valuation of hisassets and liabilities as at the dateof his death or at any timesubsequent thereto, it appears thatthe assets are or will be insufficientto pay in full the funeral,testamentary and administrationexpenses relating to the estate, andthe claims of creditors; or(ii) if owing to execution proceedingsbeing taken against the deceased orhis estate or the difficulty ofrealizing any of the assets of theestate, or because of disputedclaims, or for any other sufficientreason, the estate should beadministered as an insolvent estatefor the benefit of all partiesinterested in the estate.554G. (1) Where an estate is deemedto be insolvent at the date an application forprobate or letters of administration is made,the petitioner shall, in addition to the otheraverments required to be stated in thepetition for probate or letters, set out thematerial facts upon which adjudication thatthe estate should be deemed to be insolventis claimed, and shall contain detailed listsshowing—(a) the names of all persons who to thebest of the petitioner’s knowledgeand belief have claims against theestate;[§87, Law 20 of1977.]When theestate of adeceasedperson isdeemed to beinsolvent.[§87, Law 20 of1977.]Where estateinsolvent,applicant forprobate, &c.,to take steps tohave it sodeclared.[§87, Law 20 of1977.]V/ 157Cap. 105] CIVIL PROCEDURE CODEWhere estateinsolvent,executor oradministratorto take steps tohave it sodeclared.[§87, Law 20 of1977.]Creditor, &c.,may also applyforadjudication ofestate asinsolvent.[§87, Law 20 of1977.]Order nisideclaring estateinsolvent.[§87, Law 20 of1977.]When ordernisi to beserved.[§87, Law 20 of1977.](£>) the last known place of abode orbusiness of such persons;(c) the sums claimed by each of suchpersons and whether or not thesums claimed are liquidated orunliquidated amounts; and(d) whether or not the sums claimed orany part thereof are admitted by thepetitioner.(2) In the petition so filed, the personswho are required to be named asrespondents to the application for probateor letters, shall be made respondents.5S4H. (1) Where after grant of probateor letters an estate is deemed to beinsolvent, the executor or administratorshall file a petition by way of summaryprocedure for an adjudication that the estateshall be deemed to be insolvent, and suchpetition shall set out the material facts andthe lists as are required to be filed under thelast preceding section.(2) In such petition all persons named inthe original petition for grant of probate orletters shall be made respondents.554J. (1) It shall be competent for acreditor, heir, beneficiary, or other personinterested in the estate, similarly to makeapplication for adjudication that the estateshould be deemed to be insolvent, and theprovisions of section 554G shall, mutatismutandis, apply to such application.(2) The applicant for probate or lettersor the executor or administrator of theestate, shall in addition be made respondentto such application.S54K. Upon the court being satisfiedthat the facts stated in the petition are primafacie established, it shall enter atestamentary insolvency order nisi declaringthe estate to be insolvent in the formNo. 93A in the First Schedule.554L. A copy of the testamentaryinsolvency order nisi shall be served on eachof the respondents named therein and noticeof such order nisi in the form No. 93B in theFirst Schedule shall be advertised at theexpense of the petitioner not later than onemonth prior to the date fixed in such ordernisi for the determination of the matterscontained therein in accordance with theprovisions of section S32.554M. Any person interested in the Personestate shall be entitled to appear on the day interested mayfixed therein and may show cause or ^^Law 20 ofsupport the application, and the court may 1977.]after due inquiry in accordance with theprovisions of Chapter XXIV, either dismissthe petition or make the testamentaryinsolvency order nisi absolute.554N. The testamentary insolvency Order absoluteorder absolute* shall be in the form No. 93C t0 ** .in the First Schedule, and shall be |§87^ w 20ofadvertised in the same manner as the order 1977.]nisi and in such other manner if any, as thecourt shall consider necessary in thecircumstances of the case.554P. As from the date on which thetestamentary insolvency order nisi declaringthe estate insolvent is made, all actions inrespect of admitted claims and all executionproceedings against the estate of thedeceased shall be stayed, subject however, tothe right of any secured creditor who hastaken out execution proceedings, to proceedto realize his security upon such conditionsas the court, having regard to the provisionsof the Insolvency Ordinance, shall order.Actions andexecutionproceedings tobe stayed aftersuch order nisi.[§87, Law 20 of1977.]554Q. Where the executor named in the when courtwill or the widow or widower is unwilling to m^ 0^>|)°mt fitproceed with the due administration of an ^ministerinsolvent estate, or where the executor or estate,administrator to whom probate or letters ^ ^ ’1Law20ofhave been issued fails to administer theestate with reasonable despatch, the courtmay, having regard to the properconservation of the estate and the interest ofall parties before it, appoint any fit personto administer the estate.554R. Where a testamentary insolvency How insolventorder shall have been made, the estate shall estatetobe, . . . , , distributed.be distributed in accordance with the [§87, Law 20 offollowing provisions :— 1977.](a) the funeral, testamentary andadministration expenses shall firstbe paid out of the assets available;V /158CIVIL PROCEDURE CODE [C a p .105Powers andobligations ofexecutors andadministrators.[§87, Law 20 of1977.]Administrationof estates notto be stayeddue to appeal.[§87, Law 20 of1977.][§87, Law 20 of1977.]Sealing offoreignprobates orletters ofadministration.[§87, Law 20 of1977.]Conditions tobe fulfilledbefore sealing.[§87, Law 20 of1977.](ib) subject as aforesaid the provisionsfor the time being in force under thelaw of insolvency with respect tothe estate of a person adjudgedinsolvent shall apply and beobserved in regard to the respectiverights of secured and unsecuredcreditors as to the debts. andliabilities provable, the valuation ofannuities and future and contingentliabilities, and the priorities of debtsand liabilities.554S. An executor or administrator ofan insolvent estate shall have the samepowers and be subject to the sameobligations as the assignee of an insolventappointed under the Insolvency Ordinance.554T. An appeal from a testamentaryinsolvency order nisi or absolute declaringan estate insolvent shall not have the effectof staying the further proceedings inadministration, unless the Court of Appealshall make order to the contrary.CHAPTER XXXVIIIBF o r e i g n P r o b a t e s554U. Where a Court of Probate orother authority in a foreign country haseither before or after the 15th day ofDecember, 1977, granted probate or lettersof administration in respect of the estate ofa deceased person, probate or letters sogranted may, on being produced to, and acopy thereof deposited with, a competentcourt, be sealed with the seal of that courtand thereupon shall be of like force andeffect and have the same operation in SriLanka as if granted by that court.amount to cover the property, ifany, in Sri Lanka to which theletters of administration relate;and may require such evidence, if any, as itthinks fit as to the domicile of the deceasedperson.554W. The court may also if it thinks fit Security foron the application of any creditor require, j}“^ entofbefore sealing, that adequate sepurity be [§ 87, Law 20 ofgiven for the payment of debts due from the 1977.]estate to creditors residing in Sri Lanka.554X. A duplicate of any probate orletters of administration sealed with the sealof the court granting the same, or a copythereof certified as correct by or under theauthority of such court shall have the sameeffect as the original.554Y. The sealing of probate or letters Liabilities ofof administration under this Chapter shall executors andnot affect the liability of an executor oradministrator— [§87, Law 20 of1977.](a) to file within the time appointed bycourt an inventory of the deceasedperson’s property and effectssituated in Sri Lanka with valuationof same as required by section 538;(b) to file, on or before the expiration oftwelve months from the date ofsuch sealing, a true and finalaccount, as regards the deceased’sproperty and effects situated in SriLanka, of his executorship or hisadministration, as the case may be,verified on oath or affirmation,with all receipts or vouchersattached as required by section 553;andDuplicate orcopy ofprobate orletters ofadministration.[§ 87, Law 20of 1977.]554V. The court shall, before sealing theprobate or letters of administration underthis Chapter, be satisfied—(a) that the testamentary duty has beenpaid or secured in respect of somuch, if any, of the estate as isliable to testamentary duty in SriLanka; and(b) in the case of letters ofadministration, that security hasbeen given in a sum sufficient in(c) to be compelled to make a judicialsettlement of his account asexecutor or administrator, withrespect to the deceased’s propertysituated in Sri Lanka, under theprovisions of Chapter LV.554Z. For the purpose of all estates to Resealing courtwhich this Chapter applies— deemed to becourt issuingprobate or(a) all references in this Ordinance to letters ofany court as being the court from ^ministration,which grant of probate or letters of j977 jV /159Cap. 105] CIVIL PROCEDURE CODEBritish CourtsResealingRules deemedto be in force.[§87, Law 20 of1977.]Interpretation[§87, Law 20 of1977.]administration issued shall beconstrued as references to the courtby which probate or letters ofadministration have been sealedunder this Chapter and allreferences to the granting ofprobate or letters of administrationor to an order absolute declaring aperson entitled to such grant shallbe construed as referring to thesealing of probate or letters ofadministration under this Chapter;(b) all references in the StampOrdinance to the grant of probateor letters of administration shall bedeemed to include a reference to thesealing of probate or letters ofadministration under this Chapter,and all references to probate orletters of administration shall bedeemed to include a reference toany probate or letters ofadministration or to any duplicateor certified copy thereof sealedunder this Chapter.554AA. Notwithstanding the repeal ofthe British Courts Probate (Resealing)Ordinance*, the British Courts ResealingRules, 1939, shall be deemed to be and tocontinue in force for the purposes of thisChapter as if the said Ordinance had notbeen repealed, and may be amended, varied,altered or rescinded by rules made underArticle 136 of the Constitution.554BB. In this Chapter—“ competent court ” means—(a) the District Court of Colombo; or(b) the District Court within the locallimits of whose jurisdiction—(i) the estate or any part of the estatein Sri Lanka of the deceasedperson is situate; or(ii) the executor or administrator-orthe attorney of the executor oradministrator of that part ofthe estate of the deceasedperson which is beingadministered outside SriLanka is resident;“ Court of Probate ” means any court orauthority by whatever name’ designated having jurisdiction inmatters of probate; and“ probate ” and “ letters ofadministration ” include anyinstrument having in any foreigncountry the same effect which underthe law of Sri Lanka is given toprobate and letters ofadministration respectively.CHAPTER XXXVIIICG e n e r a l a n d T r a n s it io n a l P r o v is io n sin T e s t a m e n t a r y M a t t e r s554CC. The provisions of the StampOrdinance shall apply to, and in relation to,every application, order or other documentin testamentary proceedings and theexecutor or administrator, as the case maybe, shall be personally liable for thepayment of such stamp duty. The amountso paid by way of stamp duty shall berecoverable by the executor oradministrator as a first charge on the estateof the deceased after the grant of probate orletters of administration.554DD. Where any person has prior tothe 15th day of December, 1977, died in SriLanka leaving an estate and testamentaryproceedings had not been commenced inrespect of such estate before the 15th day ofDecember, 1977, such proceedings may beinstituted under the provisions of thisOrdinance.CHAPTER XXXIXA c t io n s R e l a t in g t o P e r s o n s o fU n s o u n d M in d555. The expression “ person ofunsound mind ” as used in this Ordinanceshall, unless the contrary appears from the* Repealed by the Administration of Justice Law, No. 44 of 1973.V/160[§87, Law 20,of 1977.]Stamp duty tobe first chargeon the estate ofthe deceased.[§87, Law 20 of1977.]Transitionalprovisions.[§87, Law 20 of1977.]Definition of“ person ofunsoundmind.”CIVIL PROCEDURE CODE [Cap. 105District Courtto instituteinquiry.Applicationfor, how tobe made.[§88, Law 20 of1977.]When maypetition bedismissed.Procedure oncourt beingsatisfied thatinquiry oughtto beinstituted.Proceeding insuch case.context, mean every person found by duecourse of law to be of unsound mind andincapable of managing his affairs.556. (1) Whenever any person who ispossessed of property is alleged to be aperson of unsound mind, the District Courtwithin whose jurisdiction such person isresiding may, upon such application as ishereinafter mentioned, institute any inquiryfor the purpose of ascertaining whether suchperson is or is not of unsound mind andincapable of managing his affairs.(2) Application for such inquiry may bemade on petition in the way of summaryprocedure by any relative of the personalleged to be of unsound mind, or by aSuperintendent of Police, or at the instanceof the Attorney-General, or if the propertyof the person alleged to be of unsound mindconsists in whole or in part of land, or ofany interest in land, by the GovernmentAgent of the district in which it is situate.557. When the District Court on suchapplication being made to it is not satisfiedby affidavit or other evidence that suchinquiry as aforesaid ought to be instituted, itshall dismiss the petition.558. When the District Court on anysuch application being made to it is satisfiedby affidavit or other sufficient evidence thatsuch inquiry as aforesaid ought to beinstituted, it shall pass an order to thateffect and then appoint a time and place forholding the inquiry.559. As soon as such order shall havebeen passed, the District Court shall cause acopy of the petition and of the order madethereon to be served upon the personalleged to be of unsound mind. If it shallappear that the person alleged to be ofunsound mind is in such a state thatpersonal service on him would beineffectual, the court may direct suchsubstituted service of the petition and orderas it shall think proper. The court may alsodirect a copy of such petition and order tobe served upon any specified relative of theperson alleged to be of unsound mind.560. The District Court may also at anytime before or pending the inquiry, requirethe person alleged to be of unsound mind toattend at such convenient time and place asit may appoint, for the purpose of beingpersonally examined by the court or by anyperson from whom the court may desire tohave a report of, or testimony as to, themental capacity and condition of suchperson alleged to be of unsound mind. Thecourt may likewise make an orderauthorizing any person or persons thereinnamed to have access to the person allegedto be of unsound mind for the purpose of apersonal examination.561. The District Court, if it think fit,may appoint two or more persons to act asassessors to the court in the said inquiry.562. The issue to be tried on suchinquiry shall be whether the person allegedto be of unsound mind is or is not ofunsound mind and incapable of managinghis affairs.563. The trial of this issue shall beeffected by viva voce examination andcross-examination of witnesses, as nearly asmay be as is hereinbefore directed for thetrial of the matter of an ordinary civilaction; and the inquiry, whether held incourt or in a private house, shall be public.564. The person alleged to be ofunsound mind shall be present at theinquiry and shall take part as a partydefendant therein either by his registeredattorney or counsel or in person, unless hisstate of health, or his behaviour, is such asto render either his being present or hisparticipating in the proceedings unfitting orunseemly.Any relative of the person alleged to be ofunsound mind may also, if the court thinksfit, appear and take part in the inquiry onbehalf of the person alleged to be ofunsound mind.565. Upon the completion of theinquiry, the court shall adjudicate whetherthe person alleged to be of unsound mind isor is not of unsound mind and incapable ofmanaging his affairs. And at the same timethe court may make such order as to thePerson allegedto be ofunsound mindmay berequired toattend.Assessors.Issue.Trial of issueto be public.Person ofunsound mindto be present.Adjudicationon the issue.Costs.V /161Cap. 105] CIVIL PROCEDURE CODEWhen petitionto be dismissedafter inquiry.Manager to beappointed.Guardian ofperson.Allowance tomanager orguardian.Duties ofguardian.payment of the cost of the inquiry by theperson upon whose application it was made,or by the person alleged to be of unsoundmind, if he be adjudged to be of soundmind, or out of his estate, if he be adjudgedof unsound mind and incapable ofmanaging his affairs, or otherwise, as it maythink proper.566. When a person has been adjudgednot to be of unsound mind and notincapable of managing his affairs, the courtshall dismiss the petition.567. When a person has been adjudgedto be of unsound mind and incapable ofmanaging his affairs, the District Courtshall appoint a manager of the estate. Anynear relative of the person of unsound mindor any other suitable person may beappointed manager.568. Whenever a manager of the estateof a person of unsound mind is appointedby the District Court, the court shallappoint a fit person to be guardian of theperson of the person of unsound mind. Themanager may be appointed guardian:Provided always that the heir-at-law ofthe person of unsound mind shall not in anycase be appointed guardian of his person.571. Every manager of the estate of a Powers ofperson of unsound mind appointed as mana8eraforesaid may exercise the same powers inthe management of the estate as might havebeen exercised by the proprietor if not aperson of unsound mind; and may collectand pay all just claims, debts, and liabilitiesdue to or by the estate of the person ofunsound mind. But no such manager shall Restrictions onhave power to sell or mortgage the estate or manager’sany part thereof, or to grant a lease of any powersimmovable property for any periodexceeding five years, without an order of theDistrict Court previously obtained.572. (1) Every person appointed by the Inventory.District Court to be manager of the estate ofa person of unsound mind shall, within atime to be fixed by the court, deliver incourt an inventory of the immovableproperty belonging to the person ofunsound mind, and of all such movableproperty, sums of money, goods, and effectsas he shall receive on account of the estate,together with a statement of all debts due byor to the same. And every such manager Account,shall furnish to the court annually, withinthree months of the close of the year, anaccount of the property in his charge,exhibiting the sums received and disbursedon account of the estate and the balanceremaining in his hands.569. If the person appointed to bemanager of the estate of a person ofunsound mind, or the person appointed tobe guardian of the person of a person ofunsound mind, shall be unwilling todischarge the trust gratuitously, the courtmay fix such allowance or allowances to bepaid out of the estate of the person ofunsound mind as, under the circumstancesof the case, may be thought suitable.570. The person appointed to beguardian of the person of a person ofunsound mind shall have the care of hisperson and maintenance. When a distinctguardian is appointed, the manager shallpay to the guardian such allowance as shallbe fixed by the court, either at the timewhen the guardian is appointed or afterwards, on an application made by suchguardian by petition in the way of summaryprocedure, for the maintenance of theperson of unsound mind and of his family.(2) If any relative of the person ofunsound mind, or the Attorney-General, bypetition to the court, shall impugn theaccuracy of the said inventory andstatement, or of any annual account, thecourt may summon the manager and inquiresummarily into the matter and make suchorder thereon as it shall think proper.573. All sums received by a manager onaccount of any estate in excess of what maybe required for the current expenses of theperson of unsound mind or of the estateshall be paid into the kachcheri on accountof the estate, and shall be dealt withthereafter in such manner as is prescribed bylaw in the case of suitors’ deposits.574. It shall be lawful for any relative of Relative maya person of unsound mind to sue for an sue foraccount from any manager, appointedunder this Ordinance, or from such personafter his removal from office or trust, orExcess overexpenditure, tobe paid intokachcheri.V/ 162CIVIL PROCEDURE CODE [Cap. 105Manager orguardian howto be removed.[§89, Law 20 of1977.]Punishment forneglect orrefusal toaccount.Where notnecessary courtneed notappointmanager.from his personal representative in case ofhis death, in respect of any estate then orformerly under his care or management, orof any sums of money or other propertyreceived by him on account of such estate.575. (1) The District Court, for anysufficient cause, may on the application ofthe guardian or of a relative of the person ofunsound mind, or of the Attorney-General,Superintendent of Police, or (where theproperty of the person of unsound mindconsists in whole or in part of land, or ofany interest in land) of the GovernmentAgent, made by petition in the way ofsummary procedure, remove any managerappointed by the court, and may appointany other fit person in his room, and maycompel the person so removed to make overthe property in his hands to his successor,and to account to such successor for allmoneys received or disbursed by him.(2) The court may also, for anysufficient cause, in like manner remove anyguardian appointed by the court.576. The District Court may on anyapplication made to it by a relative of theperson of unsound mind or a public officerunder section 575 impose a fine notexceeding five hundred rupees on anymanager of the estate of a person ofunsound mind who wilfully neglects orrefuses to deliver his accounts or anyproperty in his hands within the prescribedtime or a time fixed by the court, and mayrealize such fine by attachment and sale ofhis property under the rules in force for theexecution of decrees of court, and may alsocommit him to close custody until he shalldeliver such accounts or property.577. If it appears to the District Court,having regard to the situation and conditionin life of the person of unsound mind andhis family, and the amount and descriptionof his property, to be unnecessary toappoint a manager of the estate ashereinbefore provided, the court may,instead of appointing such manager, orderthat the property if money, or if of anyother description the proceeds thereof, whenrealized in such manner as the court shalldirect, be paid to such persons as the court maythink fit, to be applied for the maintenanceof the person of unsound mind and hisfamily.578. (1) When any person has beenadjudged to be of unsound mind andincapable of managing his affairs, if suchperson or any other person acting on hisbehalf, or having or claiming any interest inrespect of his estate, shall represent bypetition to the District Court, or if the courtshall be informed in any other manner, thatthe unsoundness of mind of such person hasceased, the court may institute an inquiryfor the purpose of ascertaining whether suchperson is or is not still of unsound mind andincapable of managing his affairs.(2) The inquiry shall be conducted in themanner provided in section 560 and the fourfollowing sections of this Ordinance ; and ifit be adjudged that such person has ceasedto be of unsound mind and incapable ofmanaging his affairs, the court shall makean order for his estate to be delivered overto him, and such order shall be final.579. In all cases in which this Chapter isapplicable, the procedure herein providedshall be followed, anything in the MentalDiseases Ordinance to the contrarynotwithstanding.580. Every order made by a DistrictCourt under the provisions of this Chaptershall be subject to an appeal to the Court ofAppeal, and such appeal may be prosecutedby, or at the instance of, the personsuspected or adjudged to be of unsoundmind, or of any relative or friend of his, orof any medical practitioner who shall havecertified or testified to his state of mind;and the Court of Appeal shall takecognizance of such appeal, and deal withthe same as an appeal from an interlocutoryorder of the District Court, and make suchorder thereon as to the said court shall seemfit. And it shall be the duty of the DistrictCourt to conform to and execute suchorder.580A. (1) The provisions contained inthis Chapter, other than section 555 shallapply in the case of mentally deficientpersons.Further inquirywhen person ofunsound mindso found isalleged to haverecovered.Saving ofMentalDiseasesOrdinance.Appeal toCourt ofAppeal.Provisionsapplicable tomentallydeficientpersons.[§14, 53 ofV/ 163 1980.]Cap. 105]Proceedingsexempt fromstamp duty.Certificate ofright to havecharge ofminor’sproperty.[§4, 24 of1969.]CIVIL PROCEDURE CODE(2) For the purposes of this section,“ mentally deficient persons ”, mean personswho are incapable of managing their ownaffairs by reason of being mentally ill,feeble, infirm or defective, though notadjudicated as persons of unsound mind inaccordance with any law for the time beingin force.581. No stamp duty shall, attach or bepayable for any application, process orother document filed in court under theprovisions of this Chapter.583. Any relative or friend of a minor,in respect of whose property such certificatehas not been granted, may apply by petitionin the way of summary procedure to theFamily Court, to appoint a fit person totake charge of the property and person or ofeither property or person of such minor584. If the property is situate in more To be made inthan one district, any such application as district whereaforesaid shall be made to the Family Court ramor residesof the district in which the minor at the timeof the application resides.Application forappointment ofperson to havecharge ofproperty orperson ofminor.CHAPTER XLA c t io n s f o r t h e A p p o in t m e n t o fG u a r d ia n s582. Every person who shall claim aright to have charge of property in trust fora minor, under a will or deed, or by reasonof nearness of kin, or otherwise, may applyto the Family Court for a certificate ofcuratorship ; and no person shall be entitledto institute or defend any action connectedwith the estate of a minor, of which heclaims the charge, until he shall haveobtained such certificate:Provided that when the property is belowthe value of twenty thousand rupees, or forany other sufficient reason, any courthaving jurisdiction may allow any relative ofa minor to institute or defend an action onhis behalf, although a certificate ofcuratorship has not been granted to suchrelative;And provided further that any suchperson so claiming to have charge of anysuch property under the provisions of a will,of which probate shall have been dulygranted, may institute or defend any suchaction without having obtained suchcertificate.Explanation.—A person to whom letters ofadministration of a deceased person’s estatehave been granted under Chapter XXXVIIIof this Ordinance does not thereby obtain aright to have charge, within the meaning ofthis section, of such portion or share of hisdeceased’s estate, if any there be, as descendsto a minor heir.585. (1) If it shall appear that any Charge ofperson claiming a right to have charge of Pr° p e r ty o fthe property of a minor is entitled to such t0 be &ant!^right by virtue of a will or deed, and. iswilling to undertake the trust, the courtshall grant a certificate of curatorship tosuch person.(2) If there is no person so entitled, or ifsuch person is unwilling to undertake thetrust and there is any near relative of theminor who is willing and fit to be entrustedwith the charge of his property, the courtmay grant a certificate to such relative.(3) The court may also, if it think fit Same person(unless a guardian has been appointed by maybethe father), appoint such person as aforesaid ^ a°d”an ofor such relative, or any other relative or person.frien.d of the minor, to be guardian of theperson of the minor.(4) The court may call upon any grama Court may callseva niladhari for a report on the character uPon 8ra™a .and qualification of any relative or friend of ^report on”the minor who may be desirous or willing to qualification,be entrusted with the charge of the propertyor person of such minor, and who resides inthe division.586. If no title to a certificate is When chargeestablished to the satisfaction of the court °fap™pertantedby a person claiming under a will or deed, t^any^3″and if there is no near relative willing and fit person.to be entrusted with the charge of theproperty of the minor, and the court shallthink it necessary for the interest of theminor that provision should be made bythe court for the charge of the property andperson of such minor, the court may grant acertificate to any fit person whom the courtmay appoint for the purpose.V/164CIVIL PROCEDURE CODE [C a p .105Guardian tohave charge ofthe person andmaintenance,to be appointedat the sametime;his allowance.Costs ofinquiries.Inventory.Accounts.Impeachmentof theinventory andaccounts.587. (1) Whenever the court shall granta certificate of curatorship to the estate of aminor who is resident in Sri Lanka to anyperson under the last section, it shall at thesame time appoint a guardian to take chargeof the person and maintenance of the minor.(2) The person to whom a certificate ofcuratorship has been granted may be appointedguardian, provided he would not be the legalheir of the minor, if the minor then died.(3) If the person appointed to be guardianbe unwilling to discharge the trustgratuitously, the court may assign him suchallowance, to be paid out of the estate of theminor, as under the circumstances of thecase it may think suitable. The court mayalso fix such allowance as it may thinkproper for the maintenance and education ofthe minor; and such allowance and theallowance of the guardian (if any) shall bepaid to the guardian by the other person asaforesaid.(4) In any case in which the court issatisfied that it will be for the interest of theminor, it may direct the raising of suchallowance out of the corpus of the estate, bymortgage or sale or such other mode ofrealization as it thinks fit.588. (1) In all inquiries held by theFamily Court under this Chapter, the courtmay make such order as to the payment ofcosts by the person on whose application theinquiry was made, or out of the estate of theminor, or otherwise, as it may think proper.(2) Every curator other than onederiving title under a will or deed, to whoma certificate shall have been granted underthis Chapter, shall, within a time to be fixedby the court, file in court an inventory of theproperty belonging to the minor, and shallalso twice every year, namely, within onemonth from the first day of January and thefirst day of July, respectively, in each year,file an account of the property in his charge,exhibiting the amounts received anddisbursed on account of the estate and thebalance in hand.589. Any relative of the minor or theminor himself by a next friend or theAttorney-General may, by petition and byway of summary procedure, impeach andfalsify the correctness of the said inventoryand periodic accounts, or complain of delayin the filing, of them; and the court may onany such application make such order as itshall think proper.590. It shall be lawful for any relative ofa minor with the leave of the court, or theminor himself by a next friend, at any timeduring the continuance of the minority, tosue for an account from any person to whoma certificate shall have been granted underthe provisions of this Ordinance, or fromany such person after his removal fromoffice or trust, or from his personalrepresentative in case of his death, in respectof any estate then or formerly under his careor management, or of any sums of money orother property received by him on accountof such estate.591. The Family Court, for anysufficient cause shown on petition by way ofsummary procedure preferred by theguardian, or by a relative, or by a nextfriend of the minor, or by the AttorneyGeneral, may recall any certificate grantedunder this chapter and may grant acertificate to any other person; and maycompel the person whose certificate has beenrecalled to make over the property in hishands to his successor, and to account tosuch successor for all moneys received anddisbursed by him. The court may alsosufficient cause in like manner remove anyguardian appointed by the court.592. (1) The Family Court may permitany person to whom a certificate shall havebeen granted under this Ordinance, and anyguardian appointed by the court, to resignhis trust; and may give him a dischargetherefrom on his accounting to his successor,duly appointed, for all moneys received anddisbursed by him, and making over theproperty in his hands.(2) The application to be dischargedfrom the trust shall be made by petition inthe way of summary procedure, in whichpetition a near relative of the minor or theAttorney-General shall be named arespondent; and it shall be competent to thecourt to direct that any other person bemade a respondent.593. Every curator other than onederiving title under a will or deed, to whoma certificate shall have been granted underthis Chapter, if he is not willing to dischargethe trust gratuitously, shall be entitled toreceive such allowance, to be paid out of theminor’s estate, as the Family Court shall byAny relative ofminor may suecurator foraccounts.Recall of thecertificates.Resignationand dischargeof curator ofproperty, orguardian ofperson ofminor.Allowance ofcurator.V /165Cap. 105] CIVIL PROCEDURE CODEMinor’seducation.Trustees,Procedure inmatrimonialactions.Court ofdistrict inwhichpetitionerresides to havejurisdiction.Co-defendant.order, made when the curator is appointedor afterwards on an application made by thecurator by petition in the way of summaryprocedure, think fit to direct.594. Every guardian appointed by theFamily Court under this Chapter, who shallhave charge of any minor, shall be bound toprovide for his education in a suitablemanner. The general superintendence andcontrol of the education of all such minorsshall be vested in the Family Court.CHAPTER XLIA c t io n s f o r A p p o in t m e n t a n dR e m o v a l o f T r u s t e e s595. Applications to the District Courtfor the exercise of its jurisdiction for theappointment or removal of a trustee, andnot asking any further remedy or relief, maybe made by petition in the way of thesummary procedure hereinbeforeprescribed.CHAPTER XLIIM a t r i m o n i a l A c t io n s596. In all actions for divorce a vinculomatrimonii, or for separation a mensa etthoro, or for declaration of nullity ofmarriage, the pleadings shall be by way ofplaint and answer, and such plaint andanswer shall be subject to the rules andpractice by this Ordinance provided withrespect to plaints and answers in ordinarycivil actions, so far as the same can be madeapplicable, and the procedure generally insuch matrimonial cases shall (subject to theprovisions contained in this Chapter) followthe procedure hereinbefore set out withrespect to ordinary civil actions.597. Any husband or wife may present aplaint to the Family Court within the locallimits of the jurisdiction of which he or she,as the case may be, resides, praying that hisor her marriage may be dissolved on anyground for which marriage may, by the lawapplicable in Sri Lanka to his or her case,be dissolved.598. Upon any such plaint presented bya husband, in which the adultery of the wifeis the cause or part of the cause of action,the plaintiff shall make the alleged adulterera co-defendant to the said action, unless heis excused from so doing on one of thefollowing grounds, to be allowed by thecourt upon an application for thepurpose:—(1) that the defendant is leading the lifeof a prostitute, and that the plaintiffknows of no person with whom theadultery has been committed;(2) that the name of the allegedadulterer is unknown to theplaintiff, although he has made dueefforts to discover it;(3) that the alleged adulterer is dead ;and it shall be lawful in any such plaint toinclude a claim for pecuniary damagesagainst such co-defendant.599. The prayer to be excused frommaking the alleged adulterer a co-defendantand the allegations of fact upon which it isfounded, supported by affidavit of fact orother sufficient evidence, shall be embodiedin the plaint.599A. The provisions of sections 598and 599 shall, mutatis mutandis, applywhere in a plaint presented by a wife,adultery of the husband is a cause of action.602. * When the court is satisfied on theevidence that the case of the plaintiff hasbeen proved, the court shall pronounce adecree declaring such marriage to bedissolved in the manner and subject to allthe provisions and limitations in sections 604and 605.603. In any action instituted fordissolution of marriage, if the defendantopposes the relief sought on any groundwhich would have enabled him or her to sueas plaintiff for such dissolution, the courtmay in such action give to the defendant onhis or her application the same relief towhich he or she would have been entitled incase he or she had presented a plaint seekingsuch relief.Affidavit whereco-defendant isexcused.Sections 598and 599 toapply whereadultery of thehusband isalleged.[§91. Law 20 of1977.]Decree to bepasseddeclaringmarriagedissolved.[§93. Law 20 of1977.]Defendantwhen entitledto relief.Sections 600 and 601 are repealed by Law No. 20 of 1977.V/166CIVIL PROCEDURE CODE [Cap. 105Decree to be 604. Every decree for dissolution ofdecree nisi in marriage shall, in the first instance, be ainstance decree nisi not to be made absolute till after[§94, Law 20 of the expiration of not less than three monthsI977-l from the pronouncement thereof, or suchlonger period as the court may prescribe inthe said decree.Decree when tobe madeabsolute.[§95, Law 20 of1977.]Actions ofnullity ofmarriage.Application forseparation orfor divorcewhether afterdecree ofseparation orotherwise.£§97, Law 20 of1977.]605. Whenever a decree nisi has beenmade and no sufficient cause has beenshown why the same should not be madeabsolute as in the last preceding sectionprovided within the time therein limited,such decree nisi shall on the expiration ofsuch time be made absolute :Provided that where such decree nisi isentered ex parte, the period during whichthe same should not be made absolute shallbe computed from the date of service ofsuch decree nisi on the defaulting party.607. * (1) Any husband or wife maypresent a plaint to the Family Court withinthe local limits of the jurisdiction of whichhe or she (as the case may be) resides,praying that his or her marriage may bedeclared null and void.(2) Such decree may be made on anyground which renders the marriage contractbetween the parties void by the lawapplicable to Sri Lanka.608. (1) Application for a separation amensa et thoro on any ground on which bythe law applicable to Sri Lanka suchseparation may be granted, may be made byeither husband or wife by plaint to theFamily Court, within the local limits of thejurisdiction of which he or she, as the casemay be, resides, and the court, on beingsatisfied on due trial of the truth of thestatements made in such plaint, and thatthere is no legal ground why the applicationshould not be granted, may decreeseparation accordingly.(2) Either spouse may—(a) after the expiry of a period of twoyears from the entering of a decreeof separation under subsection (1)by a Family Court, whether enteredbefore or after the 15th day ofDecember, 1977, or(b) notwithstanding that no applicationhas been made under subsection (1)but where there has been aseparation a mensa et thoro for aperiod of seven years,apply to the Family Court by way ofsummary procedure for a decree ofdissolution of marriage, and the court may,upon being satisfied that the spouses havenot resumed cohabitation in any casereferred to in paragraph (a), or upon theproof of the matters stated in an applicationmade under the circumstances referred to inparagraph (b), enter judgment accordingly :Provided that no application under thissubsection shall be entertained by the courtpending the determination of any appealtaken from such decree of separation. Theprovisions of sections 604 and 605 shallapply to such a judgment.609. (1) In every case of such Separatedseparation under this Chapter the wife shall, wife’s Pr°Pertyfrom the date of the sentence and whilst theseparation continues, be considered asunmarried with respect to property of everydescription which she may acquire, or whichmay come to or devolve upon her.(2) Such property may be disposed of byher in all respects as an unmarried woman,and on her decease the same shall, in caseshe dies intestate, devolve as the same wouldhave devolved if she had died unmarried :Provided that if any such wife againcohabits with her husband, all such propertyas she may be entitled to when suchcohabitation takes place shall be held to herseparate use, subject, however, to anyagreement in writing made between herselfand her husband whilst separate.610. In every case of such separation Separatedunder this Chapter the wife shall, whilst so wife’s contractsseparated, be considered as an unmarried nghtsto* Section 606 is repealed by Law No. 20 of 1977.V /167Cap. 105] CIVIL PROCEDURE CODEwoman for the purposes of contract, andwrongs and injuries, and suing and beingsued in any civil proceedings; and herhusband shall not be liable in respect of anycontract, act, or costs entered into, done,omitted, or incurred by her during theseparation:Provided that where, upon any suchseparation alimony has been decreed orordered to be paid to the wife, and the sameis not duly paid by the husband, he shall beliable for necessaries supplied for her use tothe persons who supplied them;Provided also that nothing shall preventthe wife from joining, at any time duringsuch separation, in the exercise of any jointpower given to herself and her husband.When decree 611. (1) Any husband or wife, uponfor separation tjje application of whose wife or husband,may be revised , , . .by the court as ta e c a se may be, a decree of separationwhich made it. has been pronounced, may, at any timethereafter, present a petition to the court bywhich the decree was pronounced, prayingfor a reversal of such decree, on the groundthat it was obtained in his or her absence atthe hearing, and that there was reasonableexcuse for such absence, and also for thealleged desertion, where desertion was theground of such decree.(2) Such petition shall be deemed andshall be dealt with by the court as a plaint ina regular action, and the party in whosefavour the decree of separation sought to bereversed was passed shall be made adefendant therein. And the court may, aftertrial in regular course of procedure, onbeing satisfied of the truth of the allegationsof such petition, reverse the decreeaccordingly, but such reversal shall notprejudice or affect the rights or remedieswhich any other person would have had incase it had not been decreed, in respect ofany debts, contracts, or acts of the wife incurred,entered into, or done between the time ofthe sentence of separation and of thereversal thereof.612. (1) Whenever in any plaint Co-defendantpresented by a husband the alleged adulterer may ^ orderedhas been made a co-defendant, and the toPaycostsadultery has been established, the court mayorder the co-defendant to pay the whole orany part of the costs of the proceedings inaddition to any damages which may beawarded, where such damages have beenclaimed:Provided that the co-defendant shall notbe ordered to pay the plaintiffs costs, norshall any damages be awarded—(a) if the defendant was at the time ofthe adultery living apart from herhusband and leading the life of aprostitute; or(b) if the co-defendant had not at thetime of the adultery reason tobelieve the defendant to be amarried woman.(2) The provisions of the preceding [§98, Law 20 ofsubsection shall, mutatis mutandis, apply 1977iwhere a woman has been made aco-defendant.614.* (1) In any action under this AlimonyChapter, whether it be instituted by a Pendentehusband or a wife, the wife may present a ll,e‘petition for alimony pending the action.Such petition shall be preferred and dealtwith as of summary procedure, and thehusband shall be made respondent therein;and the court, on being satisfied of the truthof the statements therein contained, maymake such order on the husband forpayment to the wife of alimony pending theaction as it may deem just:Provided that alimony pending the actionshall in no case be less than one-fifth of thehusband’s average net income for the threeyears next preceding the date of the order,and shall continue, in case of a decree fordissolution of marriage or of nullity ofmarriage, until the decree is made absoluteor is confirmed, as the case may be.* Section 613 is omitted, having been rendered inoperative by the repeal of section 606.V /168CIVIL PROCEDURE CODE [Cap. 105[§99, Law 20 of (2) A husband may present a petition1977.] for alimony pending the action. Theprovisions of the preceding subsection shallapply, mutatis mutandis, to suchapplication.application of the whole or a portion of theproperty settled, whether for the benefit ofthe husband or the wife, or of the children(if any) of the marriage, or of both childrenand parents, as to the court seems fit:[§99, Law 20 of1977.]Settlementupon decree ofdivorce orseparation.[§100, Law 20of 1977.]Court mayinquire intoante-nuptialand postnuptialsettlements.(3) Where one of the spouses is notpossessed of sufficient income or means todefray the cost of litigation, the court mayat any stage of the action order the spousewho is possessed of sufficient income ormeans to pay to the other spouse such sumon account of costs as it considersreasonable.615. (1) The court may, if it thinks fit,upon pronouncing a decree of divorce orseparation, order for the benefit of eitherspouse or of the children of the marriage orof both, that the other spouse shall do anyone or more of the following:—(a) make such conveyance or settlementas the court thinks reasonable ofsuch property or any part thereof ashe may be entitled to ;(b) pay a gross sum of money;(c) pay annually or monthly such sumsof money as the court thinksreasonable;(d) secure the payment of such sums ofmoney as may be ordered underparagraph (b) or paragraph (c) bythe hypothecation of immovableproperty or by the execution of abond with or without sureties, or bythe purchase of a policy of annuityin an insurance company or otherinstitution approved by court.(2) The court may at any stagedischarge, modify, temporarily suspend andrevive or enhance an order made undersubsection (1).618.* The court, after a decree absolutefor dissolution of marriage or a decree ofnullity of marriage, may inquire into theexistence of ante-nuptial or post-nuptialsettlements made on the parties whosemarriage is the subject of the decree, andmay make such orders, with reference to theProvided that the court shall not makeany order for the benefit of the parents oreither of them at the expense of thechildren.619. In any action for obtaining aseparation, the court may from time to time,before making its decree, make such interimorders, and may make such provision in thedecree as it deems proper with respect to thecustody, maintenance, and education of theminor children, the marriage of whoseparents is the subject of such action, andmay, if it thinks fit, direct proceedings to betaken for placing such children under theprotection of the said court.620. The court after a decree ofseparation may, upon application by way ofsummary procedure for this purpose, makefrom time to time all such orders andprovisions, with respect to the custody,maintenance, and education of the minorchildren, the marriage of whose parents isthe subject of the decree, or for placing suchchildren under the protection of the saidcourt, as might have been made by suchdecree or by interim orders in case theproceedings for obtaining such decree werestill pending.621. In any action for obtaining adissolution of marriage or a decree of nullityof marriage, the court may from time totime, before making its decree absolute orits decree (as the case may be), make suchinterim orders, and may make suchprovision in the decree absolute or decree,as the court deems proper with respect tothe custody, maintenance, and education ofthe minor children, the marriage of whoseparents is the subject of the action, andmay, if it thinks fit, direct proceedings to betaken for placing such children under theprotection of the court.Court maybefore decreefor separationordermaintenance ofminor children.Court mayafter decree ofseparationmake orderrespectingcustody, &c.,of minorchildren.Court maymake interimorder and alsoprovide forcustody, &c.,of minorchildren indecree.Sections 616 and 617 are repealed by Law No. 20 of 1977.V/169Cap. 105] CIVIL PROCEDURE CODECourt mayafter decreeabsolute makeordersrespectingcustody, &c.,of minorchildren.Adjournmentand furtherevidence.Appeal.Enforcement ofalimony andmaintenanceorders.[§102, Law 20of 1977.]When partiesmay marryagain.[§103, Law 20of 1977.]Protection ofthird partiesdealing withwife afterdecree madeand beforereversal.622. The court after a decree absolutefor dissolution of marriage or a decree ofnullity of marriage may, upon applicationby petition on summary procedure for thepurpose, make from time to time all suchorders and provisions, with respect to thecustody, maintenance, and education of theminor children, the marriage of whoseparents was the subject of the decree, or forplacing such children under the protectionof the said court as might have been madeby such decree absolute or decree (as thecase may be), or by such interim orders asaforesaid.623. The court may from time to timeadjourn the hearing of any petition or plaintunder this Chapter, and may of its ownmotion require further evidence thereon if itsees fit so to do.624. All decrees and orders made by thecourt in any action or proceeding under thisChapter shall be enforced and may beappealed from, in the like manner as thedecrees and orders of the court made in theexercise of its original civil jurisdiction areenforced, and may be appealed from underthe laws, rules, and orders for the time beingin force.624A. An order for alimony ormaintenance made under this Chapter maybe enforced either in accordance with theprovisions of this Ordinance or in themanner provided in the MaintenanceOrdinance.625. Upon a decree nisi for divorcebeing made absolute under the provisions ofthis Chapter, or when three months after thepassing of the decree thereunder of nullityof marriage shall have elapsed, without anappeal having being taken therefrom, orupon the confirmation in appeal of anydecree, but not sooner, it shall be lawful forthe respective parties to the marriage tomarry again as if the prior marriage hadbeen dissolved by death.626. (1) Every decree for separation ororder to protect property obtained by a wifeunder this Chapter shall, until reversed ordischarged, be deemed valid, so far asnecessary for the protection of any persondealing with the wife.(2) No reversal, discharge, or variationof such decree or order shall affect anyrights or remedies which any person wouldotherwise have had in respect of anycontracts or acts of the wife entered into ordone between the dates of such decree ororder and of the reversal, discharge, orvariation thereof.(3) All persons who, in reliance on anysuch decree or order, make any payment to,or permit any transfer to be made, or act tobe done by the wife who shall have obtainedsuch decree or order, shall (notwithstandingthe same may then have been reversed,discharged, or varied, or notwithstandingthe separation of the wife from her husbandmay have ceased or may at some time sincethe making of the decree or order have beendiscontinued) be protected and indemnifiedas if at the time of such payment, transfer,or other act, such decree or order were validand still subsisting without variation, andthe separation had not ceased or beendiscontinued, unless at the time of thepayment, transfer, or other act such personshad notice of the reversal, discharge, orvariation of the decree or order or of thecessation or discontinuance of theseparation.627. Save as expressly otherwiseprovided in the Kandyan Marriage andDivorce Act and the Muslim Marriage andDivorce Act, nothing in this Chaptercontained shall be taken to apply to anymarriage between persons professing Islamor to any marriage affected by theprovisions of the Kandyan Marriage andDivorce Act.CHAPTER XLIIII n t e r p l e a d e r A c t io n s628. When two or more persons claimadversely to one another payment of thesame sum of money or delivery of the sameproperty from another person, whose onlyinterest therein is that of a merestakeholder, and who is ready to render it tothe right owner, such stakeholder mayi n s t i t u t e an action of interpleader against allthe c l a i m a n t s , for the purpose of obtaining adecision as to the party to whom theSaving of theapplication ofthis Chapter asto Muslim andKandyanmarriages.[§104, Law 20of 1977.]Interpleaderactions.V/170CIVIL PROCEDURE CODE [Cap. 105Form of plaint.Propertyclaimed to bedeposited incourt.Procedure atthe hearing.payment should be made or the propertydelivered, and of obtaining indemnity forhimself:Provided that if any action is pending inwhich the rights of all parties can properlybe decided, the stakeholder shall notinstitute an action of interpleader.629. In every action of interpleader theplaint must, in addition to the otherstatements necesssary for plaints, state—(a) that the plaintiff has no interest inthe thing claimed otherwise than asa mere stakeholder;(b) the claims made by the defendantsseverally; and(c) that there is no collusion between theplaintiff and any of the defendants;and such plaint shall also be supported byan affidavit of the plaintiff verifying thestatements contained therein.630. When the thing claimed is capableof being paid into court or placed in thecustody of the court, the plaintiff must sopay or place it before he can be entitled toany order in the action.631. At the hearing the court may—(a) declare that the plaintiff isdischarged from all liability to thedefendants in respect of the thingclaimed, award him his costs, anddismiss him from the action;or if it thinks that justice or convenience sorequire—(b) retain all parties until the finaldisposal of the action;and if it finds that the admissions of theparties or other evidence enable it to do so,may—(c) adjudicate upon the title to the thingclaimed;or else it may—(d) direct the defendants to interpleadone another by filing statementsand entering into evidence for thepurpose of bringing their respectiveclaims before the court.632. Nothing in this Chapter shall betaken to enable agents to sue their principals,or tenants to sue their landlords, for thepurpose of compelling them to interpleadwith any person other than persons makingclaim through such principals or landlords.Illustrations(a) A deposits a box of jewels with B as his agent.C alleges that the jewels were wrongfullyobtained from him by A, and claims themfrom B. B cannot institute an interpleaderaction against A and C(b) A deposits a box of jewels with B as his agent.He then writes to C for the purpose ofmaking the jewels a security for a debt duefrom himself to C. A afterwards alleges thatC’s debt is satisfied, and C alleges thecontrary. Both claim the jewels from B. Bmay institute an interpleader action againstA and C.633. When the action is properlyinstituted, the court may provide theplaintiffs costs by giving him a charge onthe thing claimed, or in some other effectualway.634. If any of the defendants in aninterpleader is actually suing the stakeholderin respect of the subject of such action, thecourt in which the action against thestakeholder is pending shall, on being dulyinformed by the court which passed thedecree in the interpleader action in favour ofthe stakeholder, that such decree has beenpassed, stay the proceedings as against him,and his costs in the action so stayed may beprovided for in such action; but if and sofar as they are not provided for in thataction, they may be added to his costsincurred in the interpleader action.CHAPTER XLIVA c t io n s w h i c h f a il f o r w a n t o fJ u r is d i c t i o n635. When an action fails for want ofjurisdiction in the court to entertain anddetermine the matter of the action on itsmerits, it shall, nevertheless, be competentto the court to make such order on theparties for the payment of costs as to it shallseem just; and every such order for thepayment of costs is a decree for moneywithin Chapter XX.Who may notbe sued ininterpleader.Of theplaintiffs coststherein.Procedurewherestakeholder issued bydefendant.Power to makeorder for costsnotwithstanding wantof jurisdiction.V/ 171Cap. 105] CIVIL PROCEDURE CODEWhen want ofjurisdictioncaused byexclusivejurisdiction ofany court ortribunal,averment ofjurisdiction inplaint istraversed.[§105, Lawi20of 1977.]Order ofdismissal notreversed onappeal,conclusive asto jurisdictionof other court.[§105, Law 20of 1977.]Andconversely.[§105, Law 20of 1977.]Arrest beforejudgment.[§106, Law 20of 1977.]636. When the want of jurisdiction iscaused by reason of the exclusivejurisdiction of any court or tribunal, theaverment in the plaint made in pursuance ofsection 4S shall be considered as traversed,whether the defendant in his answer is silentin reference to it or not; and it shall be theduty of the court to dismiss the action onthis preliminary issue in bar at the earlieststage of the action whereat, by theadmission of the parties or other evidence, itappears to the court that such court ortribunal has exclusive jurisdiction.637. The order of court so dismissingthe action shall adjudicate upon the factswhich found the jurisdiction of such courtor tribunal and if not appealed against, orif, in the event of an appeal, it is notreversed, this order shall be conclusiveevidence of jurisdiction on the same claimbeing made before such court or tribunal.security to meet the same, and that he doesverily believe that the defendant is about toquit Sri Lanka, and, if he shall at the sametime further establish to the satisfaction ofthe Judge by affidavit or (if the Judge shallso require) by viva voce testimony such factsthat the Judge infers from them that thedefendant is about to quit Sri Lanka, andwill do so unless he be forthwithapprehended, such Judge may order awarrant (form No. 100, First Schedule) toarrest the body of the defendant and tobring him before the court unless he shallgive bail in, or make deposit of, such anamount as the said Judge shall considerreasonable and adequate, which amount thesaid Judge at the time of making the saidorder shall set out on the face thereof; andthe said warrant may be executed withinone calendar month from the date thereof,including the day of such date, and notafterwards, in any district of Sri Lanka:638. Also the decision of any court ortribunal declining jurisdiction shall beconclusive evidence against such jurisdictionin an action upon the same claim brought inany other court.PART VPROVISIONAL REMEDIESProvided that if the plaintiff shall be inpossession of any security in part, he or theperson making the application on his behalfshall, on pain of punishment as forcontempt of- court, set forth the sameparticularly in his application and theamount thereof, which amount shall bededucted from the amount of security to berequired from the defendant.CHAPTER XLVII*O f A r r e s t a n d S e q u e s t r a t io n b e f o r eJ u d g m e n t650.* If a plaintiff or one of severalplaintiffs in any action, either at thecommencement thereof or at anysubsequent period before judgment, shall,by way of motion on petition, supported byhis own affidavit and viva voce examination(should the Judge consider such examinationdesirable), subject, however, to theexceptions hereinafter contained, satisfy theJudge that he has a sufficient cause ofaction against the defendant, either inrespect of a money claim of or exceedingone thousand five hundred rupees orbecause he has sustained damage to thatamount, and that he has no adequate651. The defendant being arrested on Arrestedsuch a warrant shall at once be brought up Pers°n *before the court by which it was issued in gj^^baii,011custody of the Fiscal, unless he shall givereasonable security (form No. 101, FirstSchedule) to the Fiscal to appear andanswer the plaintiffs claim and to abide byand perform the judgment of the court, orto surrender himself or be surrendered to becharged in execution for the same; in whichcase the Fiscal shall be authorized todischarge him. If he is brought before thecourt under the warrant, or if he appears indischarge of the bail taken by the Fiscal, hemust give bail (form No. 102, FirstSchedule) to abide by and perform thejudgment of the court, and pay any sum orsums which may be awarded against him orto surrender himself or be surrendered by* Chapter XLV—Section 639, is repealed by Ordinance No. 9 of 1917;Sections 640 to 644 (both inclusive), are repealed by Ordinance No. 21 of 1927;Chapter XLVI—Sections 645 to 648 (both inclusive),—is repealed by Act No. 7 of 1949;Section 649 is repealed by Ordinance No. 21 of 1927.V /172CIVIL PROCEDURE CODE [Cap. 105otherwisecommitted toprison.Arrestedperson maydeposit moneywith Fiscalinstead ofgiving bail.Ofsequestrationbeforejudgment.[§107, Law 20of 1977.]his sureties, to be charged in execution forthe same; or if he is unable or unwilling togive such bail, he shall be committed toprison (form No. 103, First Schedule) untilhe does so, or until the determination of theaction; and in the event of the decree beingpassed against him, then until the executionof the decree subject to the provisions ofChapter XXII in regard to imprisonment inexecution of a decree for money; andProvided also that no person shall in anycase be imprisoned under this section for alonger period than three months beforedecree.652. The defendant may, instead ofgiving bail, as is hereinbefore directed,deposit with the Fiscal or in court the summentioned in the warrant, and thereupon heshall be discharged from custody, and aminute of the same shall be made on thewarrant; and the sum so deposited shall beapplied in satisfaction of the judgmentshould the same eventually pass against thedefendant, and the surplus, if any, shall berefunded to the defendant.653. If a plaintiff in any action, either atthe commencement thereof or at anysubsequent period before judgment, shall,by way of motion on petition supported byhis own affidavit and viva voce examination(if the Judge should consider suchexamination necessary) satisfy the Judgethat he has a sufficient cause of actionagainst the defendant, either in respect of amoney claim of or exceeding one thousandfive hundred rupees or because he hassustained damage to that amount, and thathe has no adequate security to meet thesame, and that he does verily believe thatthe defendant is fraudulently alienating hisproperty to avoid payment of the said debtor damage; and if he shall at the same timefurther establish to the satisfaction of theJudge by affidavit or (if the Judge should sorequire) by viva voce testimony such factsthat the Judge infers from them that thedefendant is fraudulently alienating hisproperty with intent to avoid payment ofthe said debt or damage, or that he has withsuch intent quitted Sri Lanka leavingtherein property belonging to him, suchJudge may order a mandate (form No. 104,First Schedule) to issue to the Fiscal,directing him to seize and sequester thehouses, lands, goods, money, securities formoney and debts, wheresoever or in whosecustody soever the same may be within hisdistrict, to such value as the court shallthink reasonable and adequate and shallspecify in the mandate, and to detain orsecure the same to abide the further ordersof the court.Explanation.—Sequestration of immovable propertyhas the effect of sequestering all rents andprofits which proceed thereout, pending thesequestration.654. Before making the order for awarrant of arrest or mandate ofsequestration, the Judge shall require theplaintiff to enter into a bond (form No. 105,First Schedule), with or without sureties, inthe discretion of the Judge, to the effect thatthe plaintiff will pay all costs that may beawarded and all damages which may besustained by reason of such arrest orsequestration, by the defendant or by anyother person in whose possession suchproperty shall have been so sequestered;and it shall be competent to the court toaward such damages and costs of suit eitherto the defendant or to those in whosepossession such property shall have been sosequestered.655. In substitution for the affidavit ofthe plaintiff required by sections 650 and653—(a) when the action is brought by theAttorney-General, then any officerof the State; and(b) when the action is brought by acorporation, board, public body, orcompany, then any principal officerof such corporation, board, publicbody, or company; and(c) when the plaintiff is absent from SriLanka, then his attorney dulyauthorized to bring and conduct theaction; and(id) when the plaintiff, or if there aremore plaintiffs than one when suchof the plaintiffs as are in Sri Lanka,or when such attorney of theplaintiff as is just above-mentionedPlaintiff to givesecurity beforesuch warrantof arrest orsequestration isissued.Who maymake affidavitin Jieu ofplaintiff.V/ 173Cap. 105] CIVIL PROCEDURE CODEPunishment forwilful falsestatement.Manner ofsequestration.Manner ofinvestigatingany claim topropertysequestered.Costs anddamages wheresequestrationwrongful.is or are unable from want ofpersonal knowledge or from bodilyor mental infirmity to make therequired affidavit, then anyrecognized agent of the plaintiff,may be allowed by the court to make anaffidavit in these matters instead of theplaintiff:Provided that in each of the foregoingcases the person who makes the affidavitinstead of the plaintiff must be- a personhaving personal knowledge of the facts ofthe cause of action, and must in his affidavitswear or affirm that he deposes from hisown personal knowledge of the mattertherein contained, and shall be liable to beexamined as to the subject-matter thereof atthe discretion of the Judge, as the plaintiffwould have been if the affidavit had beenmade by him.656. Any person wilfully making anyfalse statement by affidavit or otherwise inthe course of any of the proceedingsaforesaid may be punished as for acontempt of court, besides his liability to betried and punished under the Penal Codefor the offence of giving false evidencewhere such statement is on oath oraffirmation.657. The sequestration ordered inpursuance of section 653 shall be made inthe manner hereinbefore provided forsequestration or seizure of propertypreliminary to sale thereof in execution of adecree for money.658. If any claim be preferred to theproperty sequestered before judgment, suchclaim shall be investigated in the mannerhereinbefore provided for the investigationof claims to property seized in execution ofa decree for money.659. If upon any such investigation thecourt is satisfied that the propertysequestered was not the property of thedefendant, it shall pass an order releasingsuch property from seizure, and shall decreethe plaintiff to pay such costs and damagesby reason of such sequestration, as the courtshall deem meet. If otherwise, the courtshall disallow the claim, and make suchorder as to costs as it shall deem meet.660. Sequestration before judgment Effect ofshall not affect the rights, existing prior to sequestrationthe sequestration, of persons not parties to °” pnor n8hts’the action, nor bar any person holding adecree against the defendant from applyingfor the sale of the property undersequestration in execution of such decree.661. Where property is under Subsequentsequestration by virtue of the provisions of seizure ofthis Chapter, and a decree is given in favour underof the plaintiff, it shall not be necessary to unnecessary,again seize the property as preliminary tosale or delivery in execution of such decree.CHAPTER XLVIIIO f I n j u n c t io n s662. Every application for an injunction Whenfor any of the purposes mentioned in section “ junction may54 of the Judicature Act, except in cases [§i?™3^fwhere an injunction is prayed for in a plaint 1980 jin any action, shall be by petition, and shallbe accompanied by an affidavit of theapplicant or some other person havingknowledge of the facts, containing astatement of the facts on which theapplication is based.663. An injunction granted by the court Disobedienceon any such application may in case of “ injunction^disobedience be enforced by the punishmentof the offender as for a contempt of court.how punished.opposite party.664. The court shall in all cases, except Application towhen it appears that the object of grantingthe injunction would be defeated by thedelay, before granting an injunction causethe petition of application for the sametogether with the accompanying affidavit tobe served on the opposite party; and wherethe application is made after the defendanthas answered, the injunction shall in no casebe granted before such service. But the courtmay in its discretion enjoin the defendantuntil the hearing and decision of theapplication.665. An injunction directed to a Effect oncorporation or board or other public body ^rporation,or company is binding not only on thecorporation, board, public body, orcompany itself, but also on all members orofficers of the corporation, board, publicbody, or company whose personal action itseeks to restrain.V /174CIVIL PROCEDURE CODE. [C ap .105How set asideor varied.When courtmay awardcompensationto respondent.Order for saleof perishableproperty.Order fordetention,preservation,or inspectionof property.666. An order for an injunction madeunder this Chapter may be discharged, orvaried, or set aside by the court, onapplication made thereto on petition by wayof summary procedure by any partydissatisfied with such order.667. If it appears to the court that theinjunction was applied for on insufficientgrounds, or if, after the issue of aninjunction which it has granted, the action isdismissed or judgment is given against theapplicant by default or otherwise, and itappears to the court that there was noprobable ground for applying for theinjunction, the court may, on theapplication of the party against whom theinjunction issued, award against the partyobtaining the same in its decree such sum asit deems a reasonable compensation for theexpense or injury caused to such party bythe issue of the injunction. An award underthis section shall bar any action forcompensation in respect of the issue of theinjunction.CHAPTER XLIXO f I n t e r i m O r d e r s668. Any court may, on the applicationof any party to an action, order the sale byany person named in such order, and insuch manner and on such terms as it thinksfit, of any movable property being thesubject of such action, which is subject tospeedy and natural decay. The partycarrying out the sale shall, within such timeas the court shall limit, and after deductingthereout such expenses as the court allowshim, deposit the proceeds of the sale incourt to the credit of the action.669. The court may, on the applicationof any party to an action, and on such termsas it thinks fit—(a) make an order for the detention,preservation, or inspection andsurvey of any property being thesubject of such action;(b) for all or any of the purposesaforesaid authorize any person toenter upon or into any land orbuilding in the possession of anyother party to such action; and(c) for all or any of the purposesaforesaid authorize any samples tobe taken or any observation to bemade, or experiment to be tried,which may seem necessary orexpedient for the purpose ofobtaining full information orevidence.670. Every application under either of thetwo preceding sections shall be made bypetition in the way of summary procedure;and every party who is sought to be affectedby the order must be named a respondent inthe petition. Any such application may bemade by a plaintiff after service ofsummons, or by a defendant after he hasappeared in the action.CHAPTER LO f t h e A p p o in t m e n t o f R e c e iv e r s671. Whenever it appears to the court tobe necessary for the restoration,preservation, or better custody ormanagement of any property, movable orimmovable, the subject of an action, orunder sequestration, the court may on theapplication of any party who shall establisha prima facie right to or interest in suchproperty, by order—(a) appoint a receiver of such property,and, if need be,(ft) remove the person, in whosepossession or custody the propertymay be, from the possession orcustody thereof;(cf commit such property to the custodyor management of such receiver;and(d) grant to such receiver such fee orcommission on the rents and profitsof the property by way ofremuneration as the court thinks fit,and all such powers as to bringingand defending actions and for therealization, management,protection, preservation, andimprovement of the property, thecollection of the rents and profitsth ereo f, the ap p licatio n andApplication •herein to bemade by wayof summaryprocedure.When courtmay appoint areceiver.And give himpowers oversubject ofaction orsequestration.V/175Cap. 105] CIVIL PROCEDURE CODENotice ofapplication.Receivers togive securityand passaccounts.Power of courtto remove, orrequire freshsecurity.Powersconferable bythe court notto exceed thoseof partiesthemselves.disposal of such rents and profits, and the PART VIexecution of instruments in writing, as theowner himself has, or such of those powers OF SPECIAL PROCEEDINGSas the court thinks fit.CHAPTER LI672. Notice of an application for theappointment of a receiver under thisChapter must be served on the adverseparty, unless he has left Sri Lanka withoutleaving a recognized agent, or unless he hasfailed to appear in the action and the timelimited for his appearance has expired ; or ifhe has left a recognized agent, such noticemay be given to such agent.Of Reference to Arbitration676. (1) If all the parties to an action Matter indesire that any matter in difference between difference in anthem in the action be referred to arbitration, consen^o/ bythey may at any time before judgment is parties bepronounced apply, in person or by their referred torespective registered attorneys, specially arbltrat,onathorized in writing in this behalf, to thecourt for an order of reference.673. Every receiver so appointed asaforesaid shall—(a) give such security (if any) as thecourt thinks fit duly to account forwhat he shall receive in respect ofthe property;(b) pass his accounts at such periodsand in such forms as the courtdirects;(c) pay the balance due from himtherein as the court directs; and(d) be responsible for any lossoccasioned to the property by hiswilful default or gross negligence.674. The court may at any time, onsufficient cause shown therefor, remove areceiver or require him to give freshsecurity.675. Nothing in sections 671 and 673authorizes or empowers the court to removefrom the possession or custody of propertyunder sequestration any person whom theparties to the action or some or one of themhave or has not a present right so toremove.(2) Every such application shall be in Mode ofwriting and shall state the particular matters submission,sought to be referred, and the written•authority of the registered attorney to makeit shall refer to it, and shall be filed in courtat the time when the application is made,and shall be distinct from any power tocompromise or to refer to arbitration whichmay appear in the proxy constituting theregistered attorney’s general authority torepresent his client in the action.(3) The arbitrator shall be nominated by Appointmentthe parties in such manner as may be agreed ofarbitrator,upon between them.(4) If the parties cannot agree with When courtrespect to such nomination or if the person m^ tn°™natewhom they nominate refuses to accept thearbitration, and the parties desire that thenomination shall be made by the court, thecourt shall nominate the arbitrator.677. (1) The court shall, by order, refer The matter into the arbitrator the matter in difference ^ ^ “Qtobewhich he is required to determine, and shall arbitrator byfix such time as it thinks reasonable for the order of court,delivery of the award and specify such timein the order.(2) When once a matter is referred toarbitration, the court shall not deal with itin the same action, except as hereinafterprovided.678. (1) If the reference be to two or Appointmentmore arbitrators, provision shall be made in °f umpire,the order for a difference of opinion amongthe arbitrators—V /176CIVIL PROCEDURE CODE [Cap. 105In event ofdeath, &c.,court mayappoint newarbitrator; orsupersedearbitration.When courtmay appointumpire.Powers ofumpireappointed afterreference.Court to issueprocess.(a) by the appointment of an umpire; or(b) by declaring that the decision shallbe with the majority if the majorpart of the arbitrators agree; or(c) by empowering the arbitrators toappoint an umpire; or(d) otherwise, as may be agreed betweenthe parties; or if they cannot agree,as the court determines.(2) If an umpire is appointed, the courtshall fix such time as it thinks reasonablefor the delivery of his award in case he isrequired to act.679. If the arbitrator, or, where thereare more arbitrators than one, any of thearbitrators, or the umpire, dies, or refuses,or neglects, or becomes incapable to act, orleaves Sri Lanka under circumstancesshowing that he will probably not return atan early date, the court may in its discretioneither appoint a new arbitrator or umpire inthe place of the person so dying, or refusing,or neglecting, or becoming incapable to act,or leaving Sri Lanka, or make an ordersuperseding the arbitration, and in such caseshall proceed with the action.680. Where the arbitrators areempowered by the order of reference toappoint an umpire and fail to do so, any ofthe parties may serve the arbitrators with awritten notice to appoint an umpire; and ifwithin seven days after such notice has beenserved, or such further time as the courtmay in each case allow, no umpire beappointed, the court, upon the applicationof the party who has served such notice asaforesaid, may appoint an umpire.681. Every arbitrator or umpireappointed under the foregoing sections shallhave the like powers as if his name had beeninserted in the order of reference.682. (1) The court shall issue the sameprocesses to the parties and witnesses whomthe arbitrators or umpire desire to examineas the court may issue in actions tried beforeit.(2) Persons not attending inaccordance with such process, or makingany other default, or refusing to give theirevidence, or being guilty of any contempt toan arbitrator or umpire during theinvestigation of the matters referred, shallbe subject to the like disadvantages,penalties, and punishments, by order of thecourt on the representation of sucharbitrator or umpire, as they would incurfor the like offences in actions tried beforethe court.683. If from the want of the necessaryevidence or information, or from any othercause, the arbitrators cannot complete theaward within the period specified in theorder, the court may, if it thinks fit, eithergrant a further time, and from time to timeenlarge the period for the delivery of theaward, or make an order superseding thearbitration, and in such case shall proceedwith the action.684. When an umpire has beenappointed, he may enter on the reference inthe place of the arbitrators—(a) if they have allowed the appointedtime to expire without making anaward; or(b) when they have delivered to thecourt or to the umpire a notice inwriting stating that they cannotagree.685. When an award in an action hasbeen made, the persons who made it shallsign it and cause it to be filed in court,together with any depositions anddocuments which have been taken andproved before them ; and notice of the filingshall be given to the parties.686. Upon any reference by an order ofcourt the arbitrators or umpire may, withthe consent of the court, state the award asto the whole or any part thereof in the formof a special case, for the opinion of thecourt; and after the filing of such specialcase upon notice to the parties, the courtshall upon an appointed day hear argumentand deliver its opinion thereon; and suchopinion shall be added to and form part ofthe award.Power ofarbitrators totake evidence.Extension oftime for award.When umpiremay enter onthe reference inlieu ofarbitrators.Award to befiled in court.Award may bein form ofspecial case.V/177Cap. 105] CIVIL PROCEDURE CODEApplication toset aside orcorrect theaward.When courtmay correctaward.Court maymake order asto costs.When courtmay remitaward for reconsideration.When anaward is void.When may anaward be setaside.687. Within fifteen days from the dateof receipt of notice of the filing of the awardany party to the arbitration may by petitionapply to the court to set aside the award, orto modify or to correct the award, or toremit the award to the arbitrators forreconsideration, on grounds mentioned inthe following sections.688. The court may, by order, modify orcorrect an award—(a) where it appears that a part of theaward is upon a matter not referredto arbitration, provided such partcan be separated from the otherpart and does not affect thedecision on the matter referred ; or(b) where the award is imperfect inform, or contains any obvious errorwhich can be amended withoutaffecting such decision.689. The court may also make suchorders as it thinks fit respecting the costs ofthe arbitration, if any question arisesrespecting such costs and the awardcontains no sufficient provision concerningthem.690. The court may remit the award onany matter referred to arbitration to thereconsideration of the same arbitrators orumpire, upon such terms as it thinks fit—(a) where the award has leftundetermined any of the mattersreferred to arbitration, or when itdetermines any matter not referredto arbitration;(b) where the award is so indefinite as tobe incapable of execution;(c) where an objection to the legality ofthe award is apparent upon the faceof it.691. (1) An award remitted undersection 690 becomes void on the refusal ofthe arbitrators or umpire to reconsider it.(2) No award shall be set aside excepton one of the following grounds, namely:—(a) corruption or misconduct of thearbitrator or umpire;(b) either party having been guilty offraudulent concealment of anymatter which he ought to havedisclosed, or of wilfully misleadingor deceiving the arbitrator orumpire;(c) the award having been made afterthe issue of an order by the courtsuperseding the arbitration andrestoring the action;and no award shall be valid unless madewithin the period allowed by the court.692. (1) If the court sees no cause toremit the award or any of the mattersreferred to arbitration for reconsideration inmanner aforesaid, and if no application hasbeen made to set aside the award, or if it hasbeen made and the court has refused suchapplication, then the court shall, after thetime for making such application hasexpired, on a day of which notice shall begiven to the parties, proceed to givejudgment according to the award ; or if theaward has been submitted to it in the formof a special case, according to its ownopinion on such case.(2) Upon the judgment so given a decreeshall be framed, and shall be enforced inmanner provided in this Ordinance for theexecution of decrees.(3) No appeal shall lie from such decreeexcept in so far as the decree is in excess of,or not in accordance with, the award.693. (1) When any persons agree inwriting that any difference between themshall be referred to the arbitration of anyperson named in the agreement, or to beappointed by any court having jurisdictionin the matter to which the agreement relates,the parties thereto, or any of them, mayapply that the agreement be filed in suchcourt.(2) The application shall be by petitionin the way of summary procedure ashereinbefore provided, in which the partiesto the agreement other than the petitioneror petitioners shall be named respondents.When award isnot valid.Judgment to beaccording tothe award.And decree tobe framedthereon.Agreement torefer anydifference toarbitrationmay be filed incourt.Applicationtherefor.V /178CIVIL PROCEDURE CODE [Cap. 105Court to orderreferencethereon.Provisions ofthis Chapter toapply to suchreference.Award madeon a referenceindependentlyof court maybe filed incourt.Applicationtherefor.Filing andenforcement ofsuch award.Agreedstatement ofcase fordecision ofcourt.694. On such application being made, ifno sufficient cause be shown to thecontrary, the court may cause the agreementto be filed, and shall make an order ofreference thereon; and may also nominatethe arbitrator when he is not named thereinand the parties cannot agree as to thenomination.695. The foregoing provisions of thisChapter, so far as they are consistent withany agreement so filed, shall be applicableto all proceedings under an order ofreference made by the court under the lastpreceding section, and to the award ofarbitration and to the enforcement of thedecree founded thereupon.696. When any matter has been referredto arbitration without the intervention of aCourt of Justice, and an award has beenmade thereon, any person interested in theaward may within six months of the makingof the award apply to the court havingjurisdiction over the matter to which theaward relates, that the award be filed incourt.697. The application shall be by petitionin the way of summary procedure ashereinbefore provided, in which the partiesto the arbitration other than the petitioneror petitioners shall be named respondents.698. If on the hearing of suchapplication no ground such as is mentionedor referred to in sections 690 or 691, beshown against the award, the court shallorder it to be filed, and such award shallthen take effect as an award made under theprovisions of this Chapter.CHAPTER LIIO f P r o c e e d in g s o n A g r e e m e n t o fP a r t ie s699. (1) Parties claiming to beinterested in the decision of any question offact or law may enter into an agreement inwriting, stating such question in the form ofa case for the opinion of the court, andproviding that upon the finding of the courtwith respect to such question—(a) sum of money fixed by the parties,or to be determined by the court,shall be paid by one of the partiesto the other of them; or(b) some property, movable orimmovable, specified in theagreement, shall be delivered by oneof the parties to the other of them;or(c) one or more of the parties shall do,or refrain from doing, some otherparticular act specified in theagreement.(2) Every case stated under this sectionshall be divided into consecutivelynumbered paragraphs, and shall conciselystate such facts and documents as may benecessary to enable the court to decide thequestion raised thereby.700. If the agreement is for the deliveryof any property, or for the doing, or therefraining from doing, any particular act,the estimated value of the property to bedelivered, or to which the act specified hasreference, shall be stated in the agreement.701. The agreement, if framed inaccordance with the rules hereinbeforecontained, may for the determination of thequestion or questions thereby raised bebrought before the court which would havejurisdiction to entertain an action, theamount or value of the subject-matter ofwhich is the same as the amount or value ofthe subject-matter of the agreement. Andfor this purpose it shall be presented to thecourt as an exhibit to a petition preferred byone or more of the parties to the agreementin the way of summary procedure, to whichpetition the other parties to the agreementshall be named repondent, and in whichpetition it shall be alleged that theagreement was duly executed by all theparties, and that the controversy is real, andthat the agreement is submitted bona fidefor the purpose of determining the rights ofthe parties ; such petition shall be verified byaffidavit, and the prayer of the petition shallconform to the stipulations of the agreementwithin section 699.When value of •property is tobe statedtherein.To what courtagreement maybe presented.V/ 179Cap. 105] CIVIL PROCEDURE CODEJudgment and 702. If at the hearing of this petition ondecree thereon, consideration of the evidence before it thecourt is satisfied that the allegations of thepetition are established, and is further ofopinion that the subject of the agreement isfit to be decided, then it shall proceed topronounce judgment between the partiesupon the facts and questions stated in theagreement, and upon the judgment so givena decree shall be framed and passed, andshall be enforced in the manner provided inthis Ordinance for the execution of decrees.CHAPTER LIIIO f S u m m a r y P r o c e d u r e o n L iq u idC l a im s703. All actions where the claim is for adebt or liquidated demand in money arisingupon a bill of exchange, promissory note, orcheque, or instrument or contract in writingfor a liquidated amount of money, or on aguarantee where the claim against theprincipal is in respect of such debt orliquidated demand, bill, note, or cheque,may, in case the plaintiff desires to proceedunder this Chapter, be instituted bypresenting a plaint in the form prescribed bythis Ordinance, but the summons shall be inthe form No. 19 in the First Schedule, or insuch other form as the Supreme Court mayfrom time to time prescribe.704. (1) In any case in which the plaintand summons are in such formsrespectively, the defendant shall not appearor defend the action unless he obtains leavefrom the court as hereinafter mentioned soto appear and defend ; and in default of hisobtaining such leave or of appearance anddefence in pursuance thereof, the plaintiffshall be entitled to a decree for any sum notexceeding the sum mentioned in thesummons, together with interest to the dateof the payment, and such costs as the courtmay allow at the time of making the decree.(2) The defendant shall not be required,as a condition of his being allowed toappear and defend, to pay into court thesum mentioned in the summons, or to givesecurity therefor, unless the court thinks hisdefence not to be prima facie sustainable, orfeels reasonable doubt as to its good faith.705. (1) The plaintiff who so sues and Instrument toobtains such summons as aforesaid must on ^ producedpresenting the plaint produce to the court J S l T t othe instrument on which he sues, and he be made,must make affidavit that the sum which heclaims is justly due to him from thedefendant thereon.(2) If the instrument appears to thecourt to be properly stamped, and not to beopen to suspicion by reason of anyalteration or erasure or other matter on theface of it, and not to be barred byprescription, the court may in its discretionmake an order for the service on thedefendant of the summons abovementioned.(3) The day to be inserted in the notice Summons toas the day for the defendant’s appearance be of shortshall be as early a day as can be aae’conveniently named, regard being had to thedistance of the defendant’s residence fromthe court.706. ■ The court shall, upon application When leave toby the defendant, give leave to appear and defend may beto defend the action upon the defendantpaying into court the sum mentioned in thesummons, or upon affidavits satisfactory tothe court which disclose a defence or suchfacts as would make it incumbent on theholder to prove consideration, or such otherfacts as the court may deem sufficient tosupport the application and on such termsas to security, framing, and recording issues,or otherwise, as the court thinks fit.707. After decree the court may, under When courtspecial circumstances, set aside the decree,and if necessary stay or set aside execution,and may give leave to appear to thesummons and to defend the action, if itseem reasonable to the court so to do, andon such terms as the court thinks fit.708. In any proceeding under this Court mayChapter the court may order the instrument °”|er deposit, . . . . o f instrument,on which the action is founded to beforthwith deposited with an officer of thecourt, and may further order that allproceedings shall be stayed until theplaintiff gives security for the costs thereof.709. The holder of every dishonoured Recovery ofbill of exchange or promissory note shallhave the same remedies for the recovery of notingAction bysummaryprocedure onliquid claims.Defendant notto appear ordefend exceptwith leave.Without suchleave decree atonce withspeedyexecution.V/180CIVIL PROCEDURE CODE [Cap. 105Saving clause.Special trialroll to be kept.Proceedings todiscoverpropertywithheld, &c.the expenses incurred in noting the same fornon-acceptance, or non-payment, orotherwise, by reason of such dishonour, ashe has under this Chapter for the recoveryof the amount of such bill or note.710. Except as provided in this Chapter,the procedure in actions under this Chaptershall be the same as the procedure in actionsinstituted under Chapter VII.711. In every court in which cases maybe instituted under this Chapter, a specialtrial roll shall be kept of such cases in whichissue has been joined. And it shall becompetent for the Judge of such court toorder such cases to be set down for hearingon such days, and on the day fixed for thehearing of any such case to direct the sameto be called on for trial, in such order as tohim shall appear best calculated to promotethe ends of justice, any rule or practiceo f s u c h c o u r t t o t h e c o n t r a r ynotwithstanding:Provided that the parties to such caseshall have received reasonable notice of theday of hearing.PART VIIOF THE AIDING AND CONTROLLINGOF EXECUTORS ANDADMINISTRATORS, AND THEJUDICIAL SETTLEMENT OF THEIRACCOUNTSCHAPTER LIVO f A i d i n g , S u p e r v is i n g , a n dC o n t r o l l in g E x e c u t o r s a n dA d m i n i s t r a t o r s712. (1) An executor or administratormay present to the court from which grantof probate or administration issued to him apetition entitled as of the action in whichsuch grant issued, setting forth uponknowledge, or information and belief, anyfacts tending to show that money or othermovable property which ought to bedelivered to the petitioner, or which oughtto be included in his inventory andvaluation, is in the possession, under thecontrol, or within the knowledge orinformation of a person who withholds thesame from him, or who refuses to impartany knowledge or information he may haveconcerning the same, or to disclose anyother fact which will in any way aid thepetitioner in making discovery of suchproperty, so that it cannot be inventoriedand valued; and praying an inquiryrespecting it, and that the personcomplained of may be cited to attend theinquiry and to be examined accordingly.(2) The petition may be accompanied byaffidavits or other evidence tending tosupport the allegations thereof.(3) If the court is satisfied upon thematerials so presented that there arereasonable grounds for inquiry, it shall issuea citation accordingly, which may be madereturnable forthwith, or at such future timeas the court shall direct.713. (1) There shall be annexed to, orendorsed on, the citation an order signed bythe Judge, requiring the person cited toattend personally at the time and placetherein specified.(2) The citation and order must bepersonally served, and the service shall beineffectual unless it is accompanied withpayment or tender of the sum required bylaw to be paid or tendered to a witnesssubpoenaed to attend a trial in a civil court.(3) Failure to attend as required by thecitation and order may be punished as acontempt of court.714. (1) Upon the attendance of aperson in obedience to such citation andorder, he shall be examined fully and atlarge, on oath or affirmation, respecting anymoney or other property of the testator orintestate, or of which the testator orintestate was in possession at the time of orwithin two years preceding his death.(2) A refusal to be sworn or to answerany question allowed by the court ispunishable in the same manner as a likerefusal by a witness in a civil case.(3) In case the person cited puts in anaffidavit that he is the owner of any of thesaid property, or is entitled to the possessionthereof by virtue of any lien thereon orOrder toaccompanycitation.Service ofcitation.Failure to obeycitation.Examinationof person cited.Refusal toanswer.V /181Cap. 105] CIVIL PROCEDURE CODEFurtherevidence.Unless theperson citedgives security,decreeawardingpossession tothe petitioner.special property therein, the proceedings asto such property so claimed shall bedismissed.715. In the absence of the affidavit lastmentioned, either party may on any suchinquiry produce further evidence in likemanner and with like effect as upon a trial.716. Where it appears to the court, fromthe examination and other testimony, if any,that there is reason to suspect that money orother property of the testator or intestate iswithheld or concealed by the person cited,the court shall, unless the person cited givessecurity by a bond entered into with thepetitioner as obligee, with such sureties andin such penalty as the court approves, for thepayment of the money or delivery of theproperty, or in default of such delivery forthe payment to the obligee of the full valuethereof, and in either case of all damageswhich may be awarded against the obligorfor withholding the same whenever it shallbe determined in an action brought by theobligee that it belongs to the estate of thetestator or intestate, make a decree recitingthe grounds thereof, and requiring theperson cited to deliver possession of themoney or other property, specifying the sumor describing the property, to the petitioner.But in the event of such security beinggiven, and after payment within a time to befixed therefor of any costs which thecourt may award to the petitioner, theproceedings shall be dismissed.718. (1) A creditor, or any person Executor, &c.,interested in the estate, may present to the howcompelledcourt in the action in which grant of probate -° ret’,m. . . . ° r inventory andor administration issued, proof by affidavit accounts.that an executor or administrator has failedto file in court the inventory and valuation,and account (or a sufficient inventory andvaluation, or sufficient accounts) requiredby law within the time prescribed therefor.(2) Thereupon, or of its own motion, ifthe court is satisfied that the executor oradministrator is in default, it shall make anorder requiring the delinquent to file theinventory and valuation or accounts, or afurther inventory and valuation or furtheraccounts, as the case may be ; or in defaultthereof to show cause at a time and placetherein specified why he should not beattached.• (3) Upon the return of the order, if thedelinquent has not filed a sufficientinventory and valuation or sufficientaccounts, the court shall issue a warrant ofattachment against him, and shall deal withhim as for a contempt of court.719. A person committed to jail under How executorthe provisions of the last preceding section °/a^ r™”ls~bemay be discharged by the court upon his discharged *paying and delivering under oath all the frommoney and other property of the testator or commitment,intestate, and all papers relating to theestate under his control,, to the Judge, orperson authorized by the Judge to receivethe same.Disobedienceto decree,contempt.717. (1) Where the decree requires theperson cited to deliver money, disobediencethereto may be punished as contempt ofcourt.Warrant to (2) Where it requires him to deliverseize property, possession of other property, a warrant shallissue on the application of the petitionerdirected to the Fiscal, and commanding himto search for and seize the property, if it isfound in the possession of the person cited,or his agent, or any person deriving titlefrom him since the presentation of thepetition to deliver the same to the petitioner,and to return the warrant within sixty days.720. In either of the following cases a Petition bypetition, entitled as of the action in which creditor or* legatee togrant of probate or administration issued, compeim a y be presented to the court which issued payment.the same, praying for a decree directing anexecutor or administrator to pay thepetitioner’s claim, and that he be cited toshow cause why such decree should not bemade—(a) by a creditor, for the payment of adebt, or of its just proportionalpart, at any time after twelvemonths have expired since grant ofprobate or administration;(3) The issue of such a warrant does notaffect the power of the court to enforce thedecree, or any part thereof, by punishing adisobedience thereto.(b) by a person entitled to a legacy, orany other pecuniary provisionunder a will, or a distributive share,for the payment or satisfactionV /182CIVIL PROCEDURE CODE [Cap. 105Citation toissue.Hearing anddecree.Appeal.Executor mayfile intermediateaccount at anytime.Court maycompelexecutor to fileintermediateaccount at anytime.Procedurewhere executoror administratorhas failed tofile an accountunder section553.[§108, Law 20of 1977.]thereof, or of its just proportionalpart, at any time after twelvemonths have expired since suchgrant.721. On the presentation of suchpetition the court shall issue a citationaccordingly, and upon the return thereofshall make such decree in the premises asjustice requires. But in any case where theexecutor or administrator files an affidavitsetting forth facts which show that it isdoubtful whether the petitioner’s claim isvalid and legal, and denying its validity orlegality absolutely, or upon information andbelief, or where the court is not satisfiedthat there is money or other movableproperty of the estate applicable to thepayment or satisfaction of the petitioner’sclaim, and which may be so applied withoutinjuriously affecting the rights of othersentitled to priority or equality of paymentor satisfaction, the decree shall dismiss thepetition, but such dismissal shall notprejudice the right of the petitioner to anaction or accounting.722. Every order or decree made underthe provisions of this Chapter shall besubject to an appeal to the Court of Appeal.CHAPTER LVO f t h e A c c o u n t in g a n d S e t t l e m e n t o ft h e E s t a t e723. An executor or administrator mayat any time voluntarily file in the court fromwhich grant of probate or administrationissued to him an intermediate account, andthe vouchers in support of the same.724. The court may in any case at anytime, and either upon the application of acreditor or party interested or of its ownmotion, make an order requiring anexecutor or administrator to render anintermediate account.724A. (1) Any person interested in theestate may present to the court proof byaffidavit that an executor or administratorhas failed to file in court such account as isprescribed by section 553.(2) The court shall thereupon, or of itsown motion, if satisfied that the executor oradministrator is in default, make orderwhich shall be served on the delinquent,requiring him to file such final account on adate to be specified therein; and in defaultthereof to show cause why he should not beattached.(3) Upon the day fixed in such order, ifthe delinquent has not filed a sufficient finalaccount, the court may issue a warrant ofattachment against him and deal with himas for contempt of court.(4) A delinquent committed to jail undersubsection (3) shall be discharged by thecourt upon his filing a sufficient finalaccount.(5) Every account so filed by theaccounting party shall be in accordance withthe specimen form No. 118A in the FirstSchedule with such variations ascircumstances may require and shall set outdistinctly—(a) the assets and liabilities of thedeceased valued as in theinventory;(b) receipts and disbursements andtransactions of property made bythe accounting party up to the dateto which his account is made up ;(c) the assets and liabilities as at the dateto which the account is made up,and all schedules thereto which wouldfacilitate the taking of accounts.(6) To each account filed shall beappended an affidavit of the accountingparty to the effect that the account contains,according to the best of his knowledge andbelief, a full and true statement of all assetsand liabilities and of all his receipts anddisbursements on account of the estate ofthe deceased and of all money and otherproperty belonging to the estate which havecome to his hands, or have been received byany other person by his order or authorityfor his use; and that he does not know ofV /183Cap. 105] CIVIL PROCEDURE CODECourt to granta discharge tothe executor oradministratorwhere estatehas been dulyadministeredanddistributed.[§108, Law 20of 1977.]any error or omission in the account to theprejudice of any creditor of, or personinterested in, the estate.(7) The court may reject an accountwhich does not comply with the provisionsof this section and require the executor oradministrator to file a sufficient accountwithin a specified period.724B. (1) Where an executor oradministrator files with his final account areceipt and discharge in the form No. 119Ain the First Schedule (subject to suchvariations as circumstances may require)signed by the devisees, legatees, trustees,heirs, creditors or other persons entitled toor having an interest in the estate of thedeceased, establishing that the entire estatehas been duly administered and distributed,the court may grant him a discharge andenter an order that the estate has been fullyadministered.(2) In any case where a receipt anddischarge, or a sufficient receipt anddischarge, is not filed with the final accountthe court may, on sufficient cause shown,grant further time to the executor oradministrator to enable such a sufficientreceipt and discharge to be filed.(3) Where any such receipt anddischarge has not been filed within the timeallowed, or where any receipt and dischargehas been refused, the court may direct that acopy of the final account be served upon theparty failing or refusing to grant suchreceipt and discharge and requiring suchperson to appear in court on a day to bespecified therein, to show cause, if any, whythe final account should not be accepted ascorrect.(4) Where such a person does notappear or upon appearance on the day sofixed he shows no cause against theacceptance of the final account the courtshall grant a discharge to the executor oradministrator and enter an order that theestate has been fully administered.(5) Where such person contests thecorrectness or sufficiency of the accountfiled the court shall fix a date for astatement of objections to be filed by suchcontestant and the executor oradministrator shall, either on the date sofixed or prior thereto, file in court allreceipts and vouchers in support andverification of the final account.(6) The court shall inquire into suchobjections and shall make such order as thejustice of the case may require and on theexecutor or administrator complying withsuch order discharge the executor oradministrator and enter order declaring thatthe estate has been fully administered.(7) Where, however, the objections areof such a nature that, in the opinion of thecourt, for the adjudication of the disputesraised therein all other parties interested inthe estate shall have notice thereof, thecourt shall direct judicial settlement of the■account in the manner provided in thesucceeding sections.725. In any of the following cases, andeither upon the application of a partymentioned in the next section or of its ownmotion, the court may from time to timecompel a judicial settlement of the accountof an executor or administrator:—(a) where one year has expired sincegrant to him of probate oradministration;(b) where such grant has been revoked,or for any other reason his powershave ceased;(c) where he has sold or otherwisedisposed of any immovableproperty of the testator, ordevisable interest therein, or therents, profits, or proceeds thereof,pursuant to a power in the will,where one year has elapsed sincethe grant of probate to him.726. (1) The application for a judicialsettlement in the last section mentionedshall be by petition, entitled as of the actionin which grant of probate or administrationissued, and may be presented by a creditor,or by any person interested in the estate orfund, including a child bom after themaking of a will; or by any person in behalfof an infant so interested ; or by a surety inJudicialsettlement ofaccount.Who mayapply foraccounting.V/184Citation.Order toaccount.Supplementalcitation.Person citedmay bring inother parties.Proceedings.CIVIL PROCEDURE CODE [Cap. 105the official bond of the person required toaccount, or the legal representative of suchsurety.consolidation shall not affect any power ofthe court which might be exercised in eitherspecial proceeding.(2) Upon the presentation thereof,citation shall issue accordingly; but in acase specified in paragraph (a) of the lastpreceding section the court may, if- thepetition is presented within less thaneigthteen months after the issue of probateor administration, entertain or refuse toentertain it in its discretion.727. (1) Upon the return of suchcitation, if the executor or administratorfails either to appear, or to show good causeto the contrary, or to present, in a propercase, a petition as prescribed in section 729,an order shall be made directing him toaccount within such a time and in such amanner as the court prescribes, and toattend before the court from time to timefor that purpose. And the executor oradministrator shall be bound by such orderwithout service thereof, and if he disobeys itthe court may issue a warrant of attachmentagainst him, and the grant of probate oradministration issued to him may berevoked.729. At any time after the expiration of Executor, &c.,one year since grant of probate or may petition. . . . for judicialadministration to an executor or settlement ofadministrator, he may present to the court his account,which issued the same a petition, entitled asof the action in which such grant issued tohim, praying that his account may bejudicially settled, and that the creditors orpersons claiming to be creditors, husband orwife, heirs, next of kin, and legatees (if any)of the testator or intestate, or, if any ofthose persons has died, his executor oradministrator (if any), may be cited toattend the settlement. If one or more coexecutors or co-administrators presents sucha petition for a settlement of his separateaccount, it must pray that his co-executorsor co-administrators be also cited. And Citation,upon the presentation of any such petition acitation shall issue accordingly.730. (1) Upon the return of such Hearing,citation the court must take the account andhear the allegations and proofs of theparties respecting the same.(2) If it appears that there is a surplus,distributable to creditors or personsinterested, the court may at any time issue asupplemental citation, directed to suchpersons as must be cited upon the petitionof an executor or administrator for ajudicial settlement of his account, requiringthem to attend the accounting.(2) Any party may contest the accountwith respect to a matter affecting his interestin the settlement and distribution of theestate; and any party may contest anintermediate account rendered under section724 in case the same has not beenconsolidated under section 728.728. (1) Upon the return of anycitation issued under any of the foregoingsections of this Chapter, the executor oradministrator may, if one year has expiredsince grant of probate or administrationissued to him, present a petition as in thenext section prescribed.(2) A citation issued upon such apetition need not be directed to thepetitioner in the special proceeding pendingagainst the executor or administrator; butthe hearing of the special proceeding shallbe adjourned until the return of the citationso issued, whereupon the two specialproceedings shall be consolidated. Such731. Any creditor or person interested in Creditor notthe estate, although not cited, is entitled to cited mayappear upon the hearing, and thus make appear’himself a party to the special proceeding.732. Any executor or administrator Executor, &c.,whose grant has been revoked or who is whose grantdesirous of resigning his office may, in the revokednmaysame action, present to the court a petition petition,praying that his account may be judiciallysettled, and that his successor (if any) andthe other persons specified in section 729may be cited to attend the settlement. Theproceedings thereon shall be regulatedaccording to the provisions of the last threesections.V/185Cap. 105] CIVIL PROCEDURE CODEAffidavit to beannexed toaccounts.Vouchers to beproduced.733. To each account filed under thisChapter shall be appended an affidavit ofthe accounting party, to the effect that theaccount contains, according to the best ofhis knowledge and belief, a full and truestatement of all his receipts anddisbursements on account of the estate ofthe testator or intestate, and of all moneyand other property belonging to the estatewhich has come to his hands, or which hasbeen received by any other person by hisorder or authority for his use; and that hedoes not know of any error or omission inthe acount to the prejudice of any creditorof, or person interested in, the estate.734. Upon every accounting by anexecutor or administrator, the accountingparty must produce and file a voucher forevery payment, except in one of thefollowing cases:—735. The court may at any time make an Accountingorder requiring the accounting party to P ^yt0 bemake and file his account, or to attend and exanuned’be examined on oath or affirmationtouching his receipts and disbursements, ortouching any other matter relating to hisadministration, or any act done by himunder colour of his grant or after the deathof the testator or intestate, and before theissue of such grant or touching any movableproperty of the testator or intestate ownedor held by him at the time of his death.736. (1) Upon a judicial settlement of Court tothe account of an executor or administrator, determinehe may prove any debt owing to him by his claunstestator or intestate:Provided that a concise statement of suchdebt with an intimation of the petitioner’sintention so to prove the same has beeninserted in the petition.(1) He may be allowed, without avoucher, any proper item ofexpenditure, not exceeding twentyrupees, if it is supported by his ownuncontradicted oath or affirmation,stating positively the fact ofpayment and specifying where andto whom the payment was made:Provided that all the items soallowed against an estate, upon allthe accountings of all the executorsor administrators, shall not exceedtwo hundred rupees.(2) If he proves, by his own or another’ssworn testimony, that he did nottake a voucher when he made thepayment, or that the voucher thentaken by him has been lost ordestroyed, he may be allowed anyitem of which he satisfactorilyproves the payment by thetestimony of the person to whom hemade it, or, if that person is dead orcannot be found, by any competentevidence other than his own or hiswife’s oath or affirmation.(2) Where a contest arises between theaccounting party and any of the otherparties respecting any property alleged tobelong to the estate, but to which theaccounting party lays claim, or respecting adebt alleged to be due by the accountingparty to the testator or intestate, or by thetestator or intestate to the accounting party,the contest must be tried and determined inthe same special proceeding and in the samemanner as any issue arising on a civil trial.737. From the death of the testator or Prescription,intestate until the first judicial settlementof an account by the executor oradministrator, the running of the Ordinancerelating to the prescription of actionsagainst a debt due from the deceased to theaccounting party, or any other cause ofaction in favour of the latter against thedeceased, is suspended, unless theaccounting party was appointed upon therevocation of a former grant to anotherperson; in which case the running of theOrdinance is so suspended from the grant tohim until the first judicial settlement of hisaccount. After the first judicial settlement ofthe account of an executor or administrator,the Ordinance begins again to run against adebt due to him from the deceased, or anyother cause of action in his favour againstthe deceased.But no such item shall be allowed unlessthe court is satisfied that the charge iscorrect and just.738. Upon a judicial settlement of the Court mayaccount of an executor or administrator, the aUow *°r,, . , property lost,court may allow the accounting party for &cV/186CIVIL PROCEDURE CODE [Cap. 105Effect ofjudicialsettlement.Decree forpayment anddistribution.property of the testator or intestate perishedor lost without the fault of the accountingparty.739. A judicial settlement under thisChapter, either by the decree of the DistrictCourt or upon an appeal therefrom, isconclusive evidence against all parties.whowere duly cited or appeared, and all personsderiving title from any of them at any time,of the following facts, and no others:—(а) that the items allowed to theaccounting party for money paid tocreditors, legatees, heirs, and nextof kin, for necessary expenses, andfor his services are correct;(б) that the accounting party has beencharged with all the interest formoney received by him andembraced in the account, for whichhe was legally accountable;(c) that the money charged to theaccounting party, as collected, is allthat was collectible at the time ofthe settlement on the debts stated inthe account;(d) that .the allowances made to theaccounting party for the decrease,and the charges against him for theincrease, in the value of propertywere correctly made.740. (1) When an account is judiciallysettled under the provisions of this Chapter,and any part of the estate remains and isready to be distributed to the creditors,legatees, heirs, next of kin, husband, or wifeof the testator or intestate, or their assigns,the decree must direct the payment anddistribution thereof to the persons soentitled, according to their respective rights.(2) If any person who is a necessaryparty for that purpose has not been cited, orhas not appeared, a supplemental citationmust be issued as prescribed in section 727.(3) Where the validity of a debt, claim,or distributive share is not disputed, or hasbeen established, the decree must determineto whom it is payable, the sum to be paid,and all other questions concerning the same.And such decree shall be conclusive withrespect to the matters enumerated in thissection upon each party to the specialproceedings who was duly cited orappeared, and upon every person derivingtitle from such party.741. (1) In either of the following casesthe decree may direct the delivery of unsoldproperty, movable or immovable, or theassignment of an uncollected demand, orany other movable property, to a party orparties entitled to payment or distribution inlieu of the money value of the property:—(a) where all the parties interested, whohave appeared, manifest theirconsent thereto by a writing filed incourt;(b) where it appears that a sale thereof,for the purpose of payment ofdistribution would cause a loss tothe parties entitled thereto.(2) The value must be ascertained, if theconsent does not fix it, by an appraisementunder oath made by one or more personsappointed by the court for the purpose.742. Where an admitted debt of thetestator or intestate is not yet due, and thecreditor will not accept present paymentwith a rebate of interest, or where an actionis pending between the executor oradministrator and a person claiming to be acreditor of the deceased, the decree mustdirect that a sum sufficient to satisfy theclaim, or the proportion to which it isentitled, together with the probable amountof the interest and costs, be retained in thehands of the accounting party, or paid intocourt for the purpose of being applied to thepayment of the claim when it is due,recovered, or settled; and that so muchthereof as is not needed for that purpose beafterwards distributed according to law.743. Where a legacy or distributiveshare is payable to a person of unsoundmind or a minor, the decree may, in thediscretion of the court, direct it to be paid tothe manager or curator, as the case may be,of the estate of such person of unsoundmind or minor, and where a sum of lessthan one hundred rupees is so payable to aWhen specificproperty maybe delivered.When moneymay beretained.Share ofperson ofunsound mindor minor.V /187Cap. 105] CIVIL PROCEDURE CODEAppeal.Compulsory,judicialsettlement ofaccounts incases ofpersons ofunsound mind,mentallydeficientpersons andminors.[§ 16, 53 of1980.]minor, the decree may direct that the samebe applied to the maintenance or educationof the minor. And such manager or curatorshall apply and account for any sumreceived by him under this Chapter inmanner in Chapters XXXIX and XLrespectively provided with regard to sumscoming to his hands as such manager orcurator.deceased person of unsound mind ormentally deficient person, or underparagraph (a) by the guardian of the person,and under paragraph (b) by the manager ofthe estate, of a person of unsound mind andmentally deficient person or by any publicofficer mentioned in section 556;In cases falling under paragraphs (c), (d),(e), and (/)—744. Every order or decree made underthe provisions of this Chapter shall be subjectto an appeal to the Court of Appeal.CHAPTER LVIOf Accounting in Cases of Persons ofUnsound Mind and of Minors745. A petition praying for the judicialsettlement of the account of—(а) the manager of the estate of a personof unsound mind or mentallydeficient person;(б) the guardian of the person of aperson of unsound mind ormentally deficient person;(c) the curator of the estate of a minor;(d) the guardian of the person of aminor;(e) the next friend of a minor plaintiff;(/) the guardian for the action of aminor defendant;.by the minor after he has attained majority,or by the executor or administrator of adeceased minor, or under paragraph (c) bythe guardian of the person, and underparagraph (d) by the curator of the estate ofa minor;And in any case by the successor of anysuch manager, curator, guardian, nextfriend, or guardian for the action. But in•cases falling under paragraphs (b), (d), (e),and (/) proof must be adduced to thestatisfaction of the court that the person sorequired to account has received money orproperty of the minor for which he is liableto account and has not accounted.746. A petition praying for the judicial Voluntarysettlement of his account and a discharge Js“^tjg^entoffrom his duties and liabilities may be accounts i„presented in like manner by any of the case of personspersons described under paragraphs (a), (b ), °funsound(c), (d), 0), and (/) of the last precedingsection, in any case where a petition for ajudicial settlement of his account may bepresented by any other person as prescribedin the last section. The petition must praythat every person who might have sopresented, a petition may be cited to attendthe settlement.and that such persons may be cited toattend the settlement thereof, may in everycase where such person is required by law tofile accounts, be presented to the courthaving jurisdiction, in the manner in the lastpreceding Chapter provided, by any of thefollowing persons respectively, namely :—In cases falling under paragraphs (a) and(b) by the person of unsound mind ormentally deficient person, after he has beenfound by adjudication to have ceased to beof unsound mind or mentally deficient, orby any relative or friend of the person ofunsound mind or mentally deficient person,or by the executor or administrator of a747. (1) Upon the presentation of any Procedure,petition as mentioned in the last twosections, the court shall issue a citationaccordingly.(2) Sections 724 to 740 both inclusiveshall be taken to apply as far as practicable,mutatis mutandis, to all proceedings underthis Chapter. And the accounting partymust annex to every account produced andfiled by him an affidavit verifying theaccount.748. Every order or decree made under Appeal,the provisions of this Chapter shall besubject to an appeal to the Court of Appeal.V/188CIVIL PROCEDURE CODE [Cap. 105Requisites ofpetitionsrelating topersons ofunsound mind,mentallydeficientpersons,minors, ortrustees.[§17,53 of1980.]Citations.Security bonds.Security frommanagers andcurators.[§18, 53 of1980.]CHAPTER LVIIG e n e r a l C l a u s e s749. Every petition by which anapplication is made to a District Court forthe exercise of its powers over or in respectof persons of unsound mind, mentallydeficient persons, minors or trustees, as thecase may be, shall state expressly that thepetitioner does not know of any personinterested in the subject of the petition or inthe person sought to be affected by theorder prayed for in the petition, who islikely to entertain any objection thereto,other than those who are named asrespondents in the petition.750. . But the court shall have powernevertheless to direct that the order nisi beserved on any person or persons other thana respondent, whom it may consider entitledto have notice of the application.751. All security bonds made under orin pursuance of the provisions of ChaptersXXXIX, and XL, XLI shall, unlessotherwise expressly or by implicationdirected, be expressed to be made with theRegistrar of the court for the time being,and in the case of bonds so made, uponeach occurrence of a change of Registrar thenew Registrar shall be deemed to take theplace of, and to be substituted for, theRegistrar whom he succeeds, as party obligeeto the contract on the bond, and shallbecome such party as fully and completelyin all respects as if he were originally madesuch party on the occasion of the making ofthe bond.752. The District Court shall have thelike power to make the person appointedmanager of the estate of a person ofunsound mind, or mentally deficient person,or the person appointed curator of a minor’sestate, give security for the dueadministration of the estate as it has in thecase of administrators of deceased persons’estates.PART VIIIOF APPEALSCHAPTER LVIIIO f A p p e a l s a n d R e v is io n s753. The Court of Appeal may call forand examine the record of any case, whetheralready tried or pending trial, in any court,for the purpose of satisfying itself as to thelegality or propriety of any judgment ororder passed therein, or as to the regularityof the proceedings of such court, and mayupon revision of the case so brought beforeit pass any judgment or make any orderwhich it might have made had the casebeen brought before it in due course ofappeal instead of by way of revision.754. (1) Any person who shall bedissatisfied with any judgment pronouncedby any original court in any civil action,proceeding or matter to which he is a partymay prefer an appeal to the Court ofAppeal against such judgment for any errorin fact or in law.(2) Any person who shall be dissatisfiedwith any order made by any original courtin the course of any civil action, proceeding,or matter to which he is or seeks to be aparty, may prefer an appeal to the Court ofAppeal against such order for the correctionof any error in fact or in law, with the leaveof the Court of Appeal first had andobtained.(3) Every appeal to the Court of Appealfrom any judgment or decree of any originalcourt, shall be lodged by giving notice ofappeal to the original court within such timeand in the form and manner hereinafterprovided.(4) The notice of appeal shall bepresented to the court of first instance forthis purpose, by the party appellant or hisregistered attorney within a period offourteen days from the date when the decreeor order appealed against was pronounced,exclusive of the day of that date itself and ofthe day when the petition is presented andof public holidays, and the court to whichthe notice is so presented shall receive it andPowers ofrevision byCourt ofAppeal.Mode ofpreferringappeal.[§109, Law 20of 1977.]V/189Cap. 105] CIVIL PROCEDURE CODENotice ofappeal.[§109, Law 20of 1977.]deal with it as hereinafter provided. If suchconditions are not fulfilled, the court shallrefuse to receive it.(S) Notwithstanding anything to thecontrary in this Ordinance, for the purposesof this Chapter—“judgment” means any judgment ororder having the effect of a finaljudgment made by any civil court;and“ order” means the final expression ofany decision in any civil action,proceeding or matter which is not ajudgment.755. (1) Every notice of appeal shall bedistinctly written on good and suitablepaper and shall be signed by the appellantor his registered attorney and shall be dulystamped. Such notice shall also contain thefollowing particulars:—(a) the name of the court from whichthe appeal is preferred ;(b) the number of the action;(c) the names and addresses of theparties to the action;(d) the names of the appellant andrespondent;(e) the nature of the relief claimed :Provided that where the appeal is lodgedby the Attorney-General, no such stampsshall be necessary.(2) The notice of appeal shall beaccompanied by—(a) except as provided herein, securityfor the respondent’s costs of appealin such amount and nature as isprescribed in the rules madeby the Supreme Court, oracknowledgment or waiver ofsecurity signed by the respondent orhis registered attorney; and(b) proof of service, on the respondentor on his registered attorney, of acopy of the notice of appeal, in theform of a written acknowledgmentof the receipt of such notice or theregistered postal receipt in proof ofsuch service.(3) Every appellant shall within sixtydays from the date of the judgment ordecree appealed against present to theoriginal court a petition of appeal settingout the circumstances out of which theappeal arises and the grounds of objectionto the judgment or decree appealed against,and containing the particulars required bysection 758, which shall be signed by theappellant or his registered attorney. Suchpetition of appeal shall be exempt fromstamp duty.- (4) Upon the petition of appeal beingfiled, the court shall forward the petition ofappeal together with all the papers andproceedings in the case relevant to thejudgment or decree appealed against asspeedily as possible, to the Court of Appeal,retaining however an office copy of thejudgment or decree appealed against for thepurposes of execution, if necessary. Suchproceedings shall be accompanied by acertificate from the Registrar of the courtstating the dates of the institution anddecision of the case, in whose favour it wasdecided and the dates on which the noticeand the petition of appeal were filed.756. (1) On receipt of the petition ofappeal, the Registrar of the Court of Appealshall forthwith number the petition andshall enter such number in the Register ofAppeals and notify the parties concerned byregistered post.(2) Every application for leave to appealagainst an order of court made in the courseof any civil action, proceeding or matter,shall be made by petition duly stamped,addressed to the Court of Appeal andsigned by the party aggrieved or hisregistered attorney and shall be supportedby affidavit and shall contain the particularsrequired by section 758. The appellant shallwith such petition tender as many copies asmay be required for service on therespondents.Procedure inrespect ofappeal andapplication forleave to appeal.[§109, Law 20of 1977.]V /190CIVIL PROCEDURE CODE [Cap. 105(3) Upon an application for leave toappeal being filed, the Registrar of theCourt of Appeal shall number suchapplication and shall, as speedily aspossible, submit such application to a Judgein Chambers.(4) The application for leave to appealshall be presented to the Court of Appealfor this purpose by the party appellant orhis registered attorney within a period offourteen days from the date when the orderappealed against was pronounced exclusiveof the day of that date itself and of the daywhen the application is presented and ofpublic holidays and the Court of Appealshall receive it and deal with it as hereinafterprovided and if such conditions are notfulfilled, the Court of Appeal shall reject it.(7) Upon leave to appeal being granted,the Registrar of the Court of Appeal shallimmediately inform the original court, and,unless the Court of Appeal has otherwisedirected, all proceedings in the originalcourt shall be stayed and the said court shallas speedily as possible forward to the Courtof Appeal all the papers and proceedings inthe case relevant to the matter in issue.757. (1) The security to be required Security to befrom a party appellant shall be by bond i>y bond and(form No. 129, First Schedule) with one or Wlt surety’more good and sufficient surety or sureties,or shall be by way of mortgage ofimmovable property or deposit andhypothecation by bond of a sum of moneysufficient to cover the cost of the appeal andto no greater amount.(5) A Judge to whom an application forleave to appeal has been submitted may—(2) Security shall be dispensedwhere the appellant is—with [§110, Law 20of 197 T)(a) forthwith fix a date for the hearingof the application and order noticethereof to be issued on therespondent or respondents, or(f>) require the application to besupported in open court by thepetitioner or attomey-at-law on hisbehalf on a day to be fixed by suchJudge; and the court having heardthe petitioner or his attorney-at-lawmay reject such application or fix aday for the hearing of theapplication and order notice thereofto be issued on the respondent orrespondents:Provided that when an application is(a) the Attorney-General;(b) the spouse in a matrimonial actionin whose favour an order foralimony pendente life has beenmade;(c) an insolvent in respect of insolvencyproceedings;(d) exempted from depositing securityby any other written law.758. (1) The petition of appeal shall be Form ofdistinctly written upon good and suitable aPPealpaper, and shall contain the following of 1977]particulars:—rejected under this subsection, the courtshall record the reasons for such rejection. (a) the name of the court in which thecase is pending;(6) Where notice is ordered to issue, theRegistrar of the Court of Appeal shallaccordingly issue notice on each respondent(b) the names of the parties to theaction;or his registered attorney by registered postand shall also annex to it a copy of thepetition of appeal furnished by the(c) the names of the appellant and of therespondent;appellant. On the date specified in thenotice, or on such other date as the court M> the address to the Court of Appeal;shall then fix, the court shall hear theapplication for leave to appeal and grant orrefuse leave to appeal.(e) a plain and concise statement of thegrounds of objection to thejudgment, decree, or order appealedV /191Cap. 105] CIVIL PROCEDURE CODEIn decidingappeal, courtnot confined togrounds setforth byappellant.Where petitionto be rejected.[§ 112, Law 20of 1977.]When one ofseveralplaintiffs ordefendantsmay appealagainst wholedecree.Death orchange ofstatus of partyto appeal.[§113, Law 20of 1977.]against—such statement to be setforth in duly numberedparagraphs;(/) a demand of the form of reliefclaimed.(2) The court in deciding any appealshall not be confined to the grounds setforth by the appellant, but it shall not restits decision on any ground not set forth bythe appellant, unless the respondent has hadsufficient opportunity of being heard onthat ground.759. (1) If the petition of appeal is notdrawn up in the manner in the lastpreceding section prescribed, it may berejected, or be returned to the appellant forthe purpose of being amended, within a timeto be fixed by the court; or be amendedthen and there. When the court rejectsunder this section any petition of appeal, itshall record the reasons of such rejection.And when any petition of appeal isamended under this section, the Judge, orsuch officer as he shall appoint in thatbehalf, shall attest the amendment by hissignature.(2) In the case of any mistake, omissionor defect on the part of any appellant incomplying with the provisions of theforegoing sections, the Court of Appealmay, if it should be of opinion that therespondent has not been materiallyprejudiced, grant relief on such terms as itmay deem just.760. Where there are more plaintiffs ormore defendants than one in an action, andthe decree appealed against proceeds on anyground common to all the plaintiffs or to allthe defendants, any one of the plaintiffs orof the defendants may appeal against thewhole decree, and thereupon the Court ofAppeal may reverse or modify the decree infavour of all the plaintiffs or defendants, asthe case may be.760A. Where at any time after thelodging of an appeal in any civil action,proceeding or matter, the record becomesdefective by reason of the death or changeof status of a party to the appeal, the Courtof Appeal may in the manner provided inthe rules made by the Supreme Court for thatpurpose, determine who, in the opinion ofthe court, is the proper person to besubstituted or entered on the record in placeof, or in addition to, the party who has diedor undergone a change of status, and thename ,of such person shall thereupon bedeemed to be substituted or entered ofrecord as aforesaid.CHAPTER LIXOf the Execution of Decrees underAppeal761. No application for execution of anappealable decree shall be instituted orentertained until after the expiry of the timeallowed for appealing therefrom:Provided, however, that where an appealis preferred against such a decree, thejudgment-creditor may forthwith apply forexecution of such decree under theprovisions of section 763.763*. (1) In the case of an applicationbeing made by the judgment-creditor forexecution of a decree which is appealedagainst, the judgment-debtor shall be maderespondent.if, on any such application, an order ismade for the execution of a decree againstwhich an appeal is pending, the court whichpassed the decree shall, on sufficient causebeing shown by the appellant, requiresecurity to be given for the restitution of anyproperty which may be taken in executionof the decree, or for the payment of thevalue of such property, and for the dueperformance of the decree or order of theCourt of Appeal.And when an order has been passed forthe sale of immovable property in executionof a decree for money, and an appeal ispending against such decree, the sale shall,on the application of the judgment-debtor,be stayed until the appeal is disposed of, onsuch terms as to giving security or otherwiseas the court which passed the decree thinksfit.* Section 762 is repealed by Law No. 20 of 1977.V/192Application forexecution ofdecree not tobe entertainedtill expiry ofappealabletime.[§114, Law 20of 1977.]Application forexecution ofdecree pendingappeal must beon notice todebtor; andexecution willonly be grantedon security.CIVIL PROCEDURE CODE [Cap. 105[§19. 53 of1980.]Exception infavour of theState.Appealnotwithstanding lapseof time.Petitiontherefor,(2) The Court may order execution tobe stayed upon such terms and conditions asit may deem fit, where—(а) the judgment-debtor satisfies thecourt that substantial loss mayresult to the judgment-debtor unlessan order for stay of execution ismade, and(б) security is given by the judgmentdebtor for the due performance ofsuch decree or order as mayultimately be binding upon him.764. No such security in appeal shall berequired from the State or (whenGovernment has undertaken the defence ofthe action) from any public officer sued in.respect of an act alleged to be done by himin his official capacity.CHAPTER LXO f A p p e a l N o t w i t h s t a n d i n g L a p s e o fT im e765. It shall be competent to the Courtof Appeal to admit and entertain a petitionof appeal from a decree of any originalcourt, although the provisions of sections754 and 756 have not been observed :Provided that the Court of Appeal issatisfied that the petitioner was preventedby causes not within his control fromcomplying with those provisions; andProvided also that it appears to the Courtof Appeal that the petitioner has a goodground of appeal, and that nothing hasoccurred since the date when the decree ororder which is appealed from was passed torender it inequitable to the judgmentcreditor that the decree or order appealedfrom should be disturbed.766. In every such petition of appealas is the subject of the last sectionthe judgment-creditor shall be namedrespondent, and the petition shall beaccompanied by a certified copy of thedecree or order appealed from, and of thejudgment on which it is based, as well as bysuch affidavits of facts and other materialsas may constitute prima facie evidence thatthe conditions precedent to the petition ofappeal being entertained, which areprescribed in the last section, are fulfilled.Also, every such petition shall be presented to be presentedimmediately to the Court of Appeal in its ‘mmediately toappellate jurisdiction, and m addition to the Appeal,prayer for relief in respect to the subject ofappeal it shall contain a prayer that theappeal may be admitted notwithstanding thelapse of time.767. On any such petition being Order of Courtforwarded to the Court of Appeal the °,[eAeppnealquestion whether or not it ought to be ereon’admitted shall be a preliminary question tobe determined forthwith on summaryprocedure, according to the provisions ofalternative (b), section 377. If upon thehearing of this question the Court of Appealis satisfied that the conditions prescribed insection 765 are fulfilled, it may order thepetition of appeal to be admitted upon such’conditions as to costs, security, or otherwiseas to the court may seem just, and in theevent of its doing so the Registrar shall,where the court of first instance is the Courtof Appeal, proceed as in section 768provided ; but where such court is a DistrictCourt, Family Court or Primary Court, theCourt of Appeal shall issue a mandate tosuch court, directing it to forward to theCourt of Appeal the record of theproceedings of the action in which thedecree or order appealed from was passed;if, however, on the contrary, the court is notsatisfied that the said conditions arefulfilled, it shall dismiss the petition andmake such order as to costs as may seem tothe court just.-CHAPTER LXIH e a r i n g o f t h e A p p e a l768. When the petition of appeal has Hearing ofbeen preferred to the Court of Appeal in the “Pi*31-manner in section 755 prescribed or in the 1977 ^event of the petition of appeal beingpresented immediately to the Court ofAppeal, and when the order for theadmission has been made, the Registrar ofthe Court of Appeal shall enter it in the rollof pending appeals, and the matter of theappeal shall come up for hearing before thecourt without further notice to the partiesconcerned, in accordance with the directionV/193Cap. 105] CIVIL PROCEDURE CODEAppellant andrespondent tobe heard.[§117, Law 20of 1977.]Power of courtto adjournhearing.[§118, Law 20of 1977.]given to such Registrar by the President ofthe Court or any other Judge of the Courtof Appeal authorized by him in that behalf:Provided however that the precedingprovisions of this section shall not in anyevent derogate from the right, power orauthority of any division of the Court ofAppeal or any Judge thereof to make anyorder in regard to any case or matter listedfor hearing, order or disposal before suchcourt or Judge;Provided further that a list of the appealspending before the court in their order onthe roll, or of a sufficient number of them,be daily kept suspended upon the noticeboard of the court, and that no appeal shallcome on for hearing until it has been in thatlist in the case of appeals from DistrictCourts or Family Courts for fourteen days,or in the case of appeals from PrimaryCourts for seven days ;appeal was duly served upon him orhis registered attorney as hereinbeforeprovided, or if it appears to the court atsuch hearing that any person who was aparty to the action in the court againstwhose decree the appeal is made, but whohas not been made a party to the appeal, isinterested in the result of the appeal, thecourt may issue the requisite notice ofappeal for service.771. When an appeal is heard ex parte Rights ofin the absence of the respondent, and respondent tojudgment is given against him, he may applyto the Court of Appeal to rehear theappeal; and if he satisfies the court that thenotice of appeal was not duly served, or thathe was prevented by sufficient cause fromattending when the appeal was called on forhearing, the court may rehear the appeal onsuch terms as to costs or otherwise as thecourt thinks fit to impose upon him.Provided also that the court may of itsown motion or on the application of a partyconcerned and with reasonable notice to theparties accelerate or postpone the hearing ofan appeal, upon any such terms as to theprosecution or the costs of the appeal, orotherwise as it may think fit.769. (1) When the appeal comes on forhearing, the appellant shall be heard insupport of the appeal. The court shall then,if it does not at once dismiss the appeal oraffirm the decree appealed from, hear therespondent against the appeal, and in suchcase the appellant shall be entitled to reply.(2) If the appellant does not appeareither in person or by an attorney-at-law tosupport his appeal, the court shall considerthe appeal and make such order thereon asit thinks fit:Provided that, on sufficient cause shown,it shall be lawful for the Court of Appeal toreinstate upon such terms as the court shallthink fit any appeal that has been dismissedunder this subsection.770. If, at the hearing of the appeal, therespondent is not present and the court isnot satisfied upon the material in the recordor upon other evidence that the notice of772. (1) Any respondent, though he Rights ofmay not have appealed against any part of respondent atthe decree, may, upon the hearing, not only eanngsupport the decree on any of the groundsdecided against him in the court below, buttake any objection to the decree which hecould have taken by way of appeal,provided he has given to the appellant or hisregistered attorney seven days’ notice inwriting of such objection.(2) Such objection shall be in the formprescribed in paragraph (e) of section 758.773. Upon hearing the appeal, it shall be Power of courtcompetent to the Court of Appeal to affirm, t0 dimiss thereverse, correct or modify any judgment, varyorsetdecree, or order, according to law, or to aside thepass such judgment, decree or order therein decree or directv , ’ . . new trial, &c.between and as regards the parties, or to [§n9jLaw20give such direction to the court below, or to of 1977.]order a new trial or a further hearing uponsuch terms as the Court of Appeal shallthink fit, or, if need be, to receive andadmit new evidence additional to, orsupplementary of, the evidence alreadytaken in the court of first instance, touchingthe matters at issue in any original cause,suit or action, as justice may require or toorder a new or further trial on the ground ofdiscovery of fresh evidence subsequent tothe trial.V /194CIVIL PROCEDURE CODE [Cap. 105Judgment of 774. (1) On the termination of thethe court. hearing of the appeal, the Court of Appealshall either at once or on some future day,which shall either then be appointed for thepurpose, or of which notice shallsubsequently be given to the parties or theircounsel, protiounce judgment in opencourt; and each Judge may, if he desires it,pronounce a separate judgment.[§120, Law 20 (2) The judgment which shall be givenof 1977.] or taken down in writing, shall be signedand dated by the Judges, and shall state—(a) the points for determination;(b) the decision of the Judges thereon;(2) The decree shall also state by whatparties, and in what proportions, the costsof the action are to be paid.(3) The decree shall be sealed with theseal of the court.decree to besealed;(4) As soon as the decree is sealed all theproceedings in the case sent up to the Courtof Appeal (together with the petition ofappeal and order thereon, if any, a copy ofthe judgment or judgments pronounced onappeal, and the decree of the Court ofAppeal) shall be forthwith returned to thecourt of first instance; which shall conformto and execute such decree in all particulars.after sealing ofdecreeproceedings tobe returned tocourt of firstinstance.Decree of theCourt ofAppeal,(c) the reasons which have led to thedecision;(id) the relief, if any, to which theappellant is entitled on the appealin consequence of the decision.776*. (1) The decree of the Court ofAppeal shall be passed in accordance withthe judgments of the Judges of which thebench hearing the appeal is composed, ifthey are unanimous in regard to it, but, ifotherwise, in accordance with the judgmentsof the majority of them. It shall bear datethe day on which the judgment waspronounced, and shall contain the followingparticulars:—777. When a party entitled to anybenefit (by way of restitution or otherwise)under a decree passed in an appeal underthis Chapter desires to obtain execution ofthe same, he shall apply to the court whichpassed the decree against which the appealwas preferred; and such court shall proceedto execute the decree passed in appeal,according to the rules hereinbeforeprescribed for the execution of decrees in anaction.Execution ofthe decreepassed inappeal.PART IXOF SUMMARY PROCEDURE INRESPECT OF CONTEMPTS OF COURTCHAPTER LXVthow framed; (a) the heading “ In the Court ofAppeal ” ;(* ) the court number and title of theappeal;(C) the names of the parties;(d) the names of the appellant and ofthe respondents cited;(e) the parties present and heard ;V) a clear specification of the ordermade and relief granted or otherdetermination of the appeal.792$. In all courts the summary Summaryprocedure to be followed for the exercise of procure inthe special jurisdiction to take cognizance of ^ ete°mptand to punish summarily offences ofcontempt of court, and offences declared bythis Ordinance to be punishable ascontempts of court, shall be that which isprescribed in the sections next immediatelyfollowing.793. The court shall issue a summons to Summons tothe accused person in the form No. 132 in accused,the First Schedule or to the like effect,which summons shall state shortly thenature of the alleged offence and theinformation or grounds upon which thesummons is issued, and shall require the* Section 775 is repealed by Law No. 20 of 1977.t Chapter LXII—Section 778 is repealed by Law No. 20 of 1977.t Chapters LXIII and LXIV—Sections 779 to 791 (both inclusive)—are repealed by Ordinance No. 31 of 1909.V/ 195Cap. 105] CIVIL PROCEDURE CODEWhen maycourt issuewarrantsimultaneouslywith summons.Judge torecord minuteof factsobserved byhim.On day ofhearing courtmay askaccused if headmits truth ofcharge.accused person to appear before the courton a day named in the summons to answerthe charge.794. It shall be competent to the courtsimultaneously with issuing such summons,or at any time after such summons has beenissued, if it has reason to believe that theattendance of the accused person at the timeappointed in the summons to answer the. charge cannot otherwise be secured, to issuea warrant for his arrest in the form No. 133in the First Schedule or to the like effect,which warrant shall recite the issuing of thesummons, and the day appointed therein forthe hearing of the charge, and shallcommand that the accused person afterarrest be kept in custody until that day, andbe then brought before the court to answerthe charge in the summons:Provided that the person arrested shall atany time after arrest be enlarged uponsufficient security, to an amount endorsedon the warrant by the court, either of theaccused person’s own bond or that ofanother person, for his appearance in courton the day named in the summons, beingfurnished to the officer in whose custodyhe is.795. When the information upon whichthe charge is based is furnished to the court,either wholly or in part, by the personalobservation of the Judge of the accusedperson’s behaviour and language in hispresence, the Judge shall at the time recorda minute of the facts so observed by him,which shall be admissible as evidence at thehearing of the charge, and in such case nosuch summons as in section 793 ismentioned shall be necessary, but theaccused person may be forthwith committedto jail or admitted to bail as in the lastpreceding section provided, and all furthersteps shall be taken in manner hereinprovided, as though such summons orsummons and warrant as aforesaid had beenissued.7 9 6 . On the day appointed by the courtfor the hearing of the charge, or on anysubsequent day to which the hearing mayhave been adjourned in consequence of theprevious non-attendance of the accusedperson, the court shall commence thehearing by asking the accused personwhether or not he admits the truth of thecharge; and if he does not admit the truthof the charge, the court shall proceed totake evidence (if any) which may benecessary in addition to the court minuteunder section 795 to establish the charge;and also to take the accused person’sstatement and any evidence which he mayoffer in answer to the charge.797. (1 ) If the accused person admits Form of thethe charge, or if after taking the evidence on conviction andboth sides and considering the court minuteand hearing the accused person’sexplanation the court finds the accusedperson guilty of the charge, it shall makeout a conviction in the form No. 134 in theFirst Schedule or to the like effect, whichshall recite the materials on which theconviction is founded, and adjudicate uponthe material facts of the accused person’sbehaviour and language, with so much ofthe surrounding circumstances as causethese to constitute the offences of contemptof court. And the sentence passed by thecourt shall be recorded on this conviction.(2) If the court finds the accused person when maynot guilty of the charge laid, it shall dismiss court dismissthe charge, and shall make and record an charge’order to that effect.798. An appeal shall lie to the Court of Appeal toAppeal from every order, sentence, orconviction made by any court in the exerciseof its special jurisdiction to take cognizanceof, and to punish by way of summaryprocedure the offence of contempt of court,and of offences by this Ordinance madepunishable as contempt of court; and theprocedure on any such appeal shall followthe procedure laid down in the Code ofCriminal Procedure Act regulating appealsfrom orders made in the ordinary criminaljurisdiction of Magistrates’ Courts.Court ofAppeal.799. Every sentence of fine or Procedure forim p ris o n m e n t passed by a court in exercise carrying outof its special jurisdiction to take cognizance llu ^ in c a s e ofof, and to punish by way of summary conviction forprocedure the offence of, contempt of court, contempt,and offences by this Ordinance madepunishable as contempt of court, shall becarried into effect in the same mannerand according to the same procedureas is provided in the Code ofV /196Sentences to beimposed underthis Chapter.[§20,53 of1980.]Privilege fromarrest ofJudges, parties,registeredattorneys andcounsel.When may civilcourt sendcases forinvestigation toMagistrate.CIVIL PROCEDURE CODE [Cap. 105Criminal Procedure Act for carrying intoeffect sentences of fine or imprisonmentpassed by any court in the exercise of itsordinary criminal jurisdiction.relevant to the charge, and may bind overany person to appear and give evidencebefore such Magistrate.800. The provisions of Article 105 (3) ofthe Constitution and sections 18 and 55 ofthe Judicature Act shall apply to thesentence of fine or imprisonment, as thecase may be, that may be imposed onconviction for contempt under this Chapterby the various courts.(2) The Magistrate shall receive suchcharge and proceed with it according to law.836. At any time after a warrant of Warrant ofarrest has been issued under this Ordinance arrest„mfy, cancelled onthe court may cancel it on the ground of the ground ofserious illness of the person against whom illness of party:the warrant was issued.PART X837. (1) When a judgment-debtor has JudgmentCHAPTER LXVII* been arrested under this Ordinance, the debtor undercourt may release him, if in its opimon he is released onM i s c e l l a n e o u s not in a fit state of health to undergo ground ofimprisonment. iUness-834f. No Judge, Magistrate, or otherjudicial officer shall be liable to arrest undercivil process while going to, presiding in, orreturning from his court. And where anymatter is pending before a court havingjurisdiction therein, or believing in goodfaith that it has such jurisdiction, the partiesthereto and their registered attorneys andcounsel shall be exempt from arrest undercivil process while going to or attendingsuch court for the purpose of such matter,and while returning from such court.835. (1) When in a case pending beforeany court there appears to the courtsufficient ground for sending forinvestigation to a Magistrate a charge ofany such offence as is described in sections190, 193, 196, 197, 202, 203, 204, 205, 206,207, 452, 459, 462, 463, 464, or 466 of thePenal Code, which may be made in thecourse of any other action or proceeding orwith respect to any document offered inevidence in the case, the court may cause theperson accused to be detained till the risingof the court, and may then or sooner sendhim in custody to the Magistrate or takesufficient bail for his appearance before theMagistrate. The court shall send to theMagistrate the evidence and documents(2) When a judgment-debtor has beencommitted to jail, he may be releasedtherefrom—(a) by the Commissioner of Prisons orby any two Visitors of the jail, onthe ground of his suffering fromany infectious or contagiousdisease; or(b) by the committing court or anycourt having jurisdiction in theplace at which such jail may besituate, on the ground of hissuffering from any serious illness.838. A judgment-debtor released under Releasedthe last preceding section may be rearrested, Judgment-, , . . . . debtor may bebut the period of his imprisonment shall not rearrested.in the aggregate exceed six months.8 3 9 . Nothing in this Ordinance shall be inherentdeemed to limit or otherwise affect the powers of. , , „ , court saveinherent power of the court to make suchorders as may be necessary for the ends ofjustice or to prevent abuse of the process ofthe court.•Chapter LXVI—Sections 801 to 833 (both inclusive)—is repealed by Law No. 20 of 1977.t Section 833A is repealed by Act No. 5 of 1964.V /197Cap. 105] CIVIL PROCEDURE CODE[Section 10.][Section 10.][Section 18.]FIRST SCHEDULENo. 1FORM OF NOTICE OF MOTION FOR TRANSFER OF AN ACTION OR MATTERIn the Court of Appeal of the Republic of Sri Lanka(Title o f action, &c., showing in what court it is pending.)Take notice that the accompanying affidavit will be read and a motion made before the Court of Appeal atColombo (or as the case may be) on th e …………………………. day o f …………………………… 19 . . . . , a t ……………………….o’clock of the forenoon, or so soon thereafter as counsel may be heard, on the part of the defendant (or as the casemay be) that this action (or prosecution, or matter) may be withdrawn from (name the court or place in which theaction, &c., is pending) and may be transferred to (name the court or place to which transfer is desired) ; and thatthe plaintiff (or as before) may be ordered to pay to the applicant his costs of, and occasioned by, this application.T his …………………………. day o f ………………………….. ,1 9 ………(Signed)(Name and address o f registered attorney or party giving notice.)To (name and address o f registered attorney or party to be served).(Annex to this notice copy o f the affidavit on which motion is to be made.)No. 2FORM OF AFFIDAVIT IN SUPPORT OF MOTION FOR TRANSFER(For formal parts see No. 75.)1. —(State proceedings in court o f institution.)2. —( Where the motion is fo r transfer to a court o f inferior jurisdiction.) The plaintiffs claim is for (state natureand particulars o f claim as furnished to defendant, and show that the action is within the jurisdiction o f the courtto which transfer is desired).3. —(In the like case.) The plaintiff has no visible means of paying my costs should judgment not be given for thesaid plaintiff.4. —(Show means o f knowledge.)5 . —( Where the motion is fo r transfer to a court o f superior jurisdiction.) I am advised, and verily believe, thatupon the trial of the said action several difficult questions of law are likely to arise, and amongst others thefollowing: (here state the questions likely to arise, and verify the facts raising them).6 . —(State special reasons, if any, fo r transfer.)7. —(Show means o f knowledge.)g.—(Where defendant moves.) I have a good defence to this action upon the merits, and this application is notmade for the purpose of embarrassing or delaying the plaintiff, but bona fide and for the purpose of obtaining aproper trial of the said action.No. 3FORM OF NOTICE TO A PERSON WHO THE COURT CONSIDERS SHOULD BE JOINED AS A CO-PLAINTIFF(Title.)T o …………………………. . o f………………………….Whereas the above-named (plaintiff) has instituted the above-named action against the above-named(defendant) fo r………………………….And whereas it appears to this court necessary that you should be added as a plaintiff in the said action, in orderto enable this court effectually and completely to adjudicate thereon:Take notice that you should on or before th e …………………………. day o f ………………………….. ,1 9 ……… . signify tothis court whether you consent to be so added.T his…………………………. day o f ……………………………..19 ………….(Signed)………………………….. District Judge.V/198CIVIL PROCEDURE CODE [Cap. 105No. 4FORM OF AUTHORITY FOR TH E APPEARANCE OF ONE OR MORE OF SEVERAL PLAINTIFFS OR DEFENDANTS ON [Section 23.]BEHALF OF THE OTHER OR OTHERS OF THEM(Title.)I , ………………………….. . o f ………………………….. (or, We………………………………. o f…………………………… ), plaintiff (ordefendant, or plaintiffs, or defendants) in the above-named action, do hereby appoint……………………………………. of…………………………. (an d ……………………………. o f . ………………………. ), who is (are) also (plaintiff or defendant) in thesaid action, to appear, plead, and act for me (us) therein.Witness my (our) hand (hands) th is …………………………. day o f ……………………………. 19………(Signed)………………………….Address………………………….No. 5FORM OF GENERAL POWER OF ATTORNEY [Section 25.]I……………. . …………… o f……….true and lawful attorney for me and in my name and on my behalf to appear, sue, or answer, and to receive allprocess in any action, appeal, or other judicial proceeding whatsoever in any court, and generally to act in all suchproceedings in any way in which I might, if present, be permitted or called on to act.Witness my hand t h i s …………………………. day o f………………………….. ,1 9 ………(Signed)AddressNo. 6FORM OF APPOINTMENT OF A REGISTERED ATTORNEY BY THE ATTORNEY-GENERAL [Section 27.]I, the undersigned, …………………………….., Attorney-General of the Republic of Sri Lanka, do hereby authorizeand appoint. ……………………….. . gentleman, one of the Attomeys-at-Law of the Supreme Court of the Republic ofSri Lanka, to appear for me before the District Court o f………………………….. in a certain action to be instituted inthe said court in my name at the instance of the state against o n e ………………………………. (or in a certain actioninstituted in the said Court by o n e ……………………… against me as representing the state), wherein (state what theaction is) to (sue or defend, as the case may be) and to represent the state therein, and generally to do and performall such acts, matters, and things as may be necessary to be done and performed in and about the premises, and, ifneed be, to appeal from any judgment or order of the said District Court in the said action; hereby promising toratify and confirm whatsoever the said attomey-at-law may lawfully do herein.Given under my hand a t …………………………. t h i s ………………………….. day o f ……………………………,1 9 ………The address for service of the said attorney-at-law is a t ………………………….SignatureNo. 7FORM OF APPOINTMENT OF A REGISTERED ATTORNEY [Section 27.]Know all men by these presents that I, A. B., o f…………………………… (or we, A. B., o f ………………………………andC.D., o f………………………… ), have nominated, constituted, and appointed, and do hereby nominate, constitute,and appoint…………………………. , attorney-at-law, to b e …………………………..registered attorney and f o r ………………….and i n …………………………. name and behalf before t h e ………………………….. to appear and therein to (sue or defend,as the case may be, showing what the action is).V /199Cap. 105] CIVIL PROCEDURE CODE[Section 27.][Section 28.]And to receive and to take all moneys that may be paid to him by the s a id ………………………… in the said action,and to move for and obtain in his name any order or orders from the said couri for any payments of any sum orsums of money that may be deposited therein in respect o f …………………………. . and to give all necessary receipts,releases, and discharges therefor. And if need be, to refer the case to the award and decision of arbitrators and toname an arbitrator f o r ……………………………. and for that purpose to sign any motion, submission, or bond; or, ifnecessary, to allow and consent to a judgment being entered against………………………….. as t o ……………………………said attomey-at-law shall appear fit and proper; and against any judgment, order, sentence, or decreeinterlocutory or final of the said …………………………..Court to appeal; and every bond or recognizance whatsoevernecessary in the course of proceedings for the prosecution of such appeal for and i n …………………………. name anda s …………………………. act to sign, and upon any judgment or order of the said………………………….. Court to proceedto execution against the person and property of the s a id ………………………….A n d …………………………. do further authorize and em pow er………………………….. said attorney-at-law, to take anduse all lawful ways and means, and to do and perform all such acts, matters and things as may be necessary in andabout the premises w hich………………………… . . being personally present might or could lawfully do, and, ifnecessary, one or more attorney or attorneys-at-law or counsel, to appoint, and again at pleasure suchappointment to revoke. A nd…………………………. further promise and agree to release all kinds of irregularities, andto ratify, confirm, and allow all and whatsoever the said attomey-at-law or his substitute or substitutes, or the saidcounsel, shall do herein.W itness………………………….. hand a t …………………………… th is …………………………… day o f…………………………… . Onethousand nine hundred a n d …………………………..The address for service of the said attomey-at-law is a t .. …………………….SignatureNo. 8FORM OF REVOCATION OF SUCH APPOINTMENT(Title.)Know all men by these presents that I, A.B., o f……………………………. (or we, A.B., o f…………………………….. . andC.D., o f………………………….. ), having received the leave of the above-named court in that behalf, do (and each ofus doth) hereby revoke and cancel the paper writing filed in the above-named action, and dated (&c.), whereby I(we) have nominated and appointed…………………………… o f…………………………… , to be my (our) registered attorney(registered attorneys) in the said action; and that the said ………………………….. has (have) from this date ceased tobe my (our) registered attorney (registered attorneys) in the’said action; and the said paper writing shall behenceforth of no force or effect.T h e …………………………. day o f …………………………….19 ……………..(Signed as the Proxy.)No. 9FORM OF NOTICE TO APPOINT A NEW REGISTERED ATTORNEY IN PLACE OF ONE CEASING TO ACT(Title.)To Y. Z„ the defendant (or plaintiff) above named.Take notice that you are hereby required to appoint another registered attorney in place of A. B., your formerregistered attorney of record, who (died, or was removed or suspended, o r ) became incapable to act by reason of(state reason, as the case may be) on or about t h e ………………………….. day o f …………………………… , 19 . . . . .; andcause notice of such new appointment to be given to the undersigned at the under-written address.T h e …………………………. day o f ……………………………,1 9 ………..(Signed)………………… Party (or Registered Attorney)Address…………………………………V/200CIVIL PROCEDURE CODE [Cap. 105No. 10FORM OF NOTICE OF SUBSTITUTION OF NEW REGISTERED ATTORNEY IN PLACE OF ONE CEASING TO ACT(Title.)To (party or registered attorney issuing the last preceding notice).Take notice that the undersigned has been substituted (or where the party himself gives the notice, that I, thesaid Y. Z., have substituted name and address o f hew registered attorney) in the place of A. B„ formerly registered. attorney of record for (defendant or plaintiff) in the above-named action.T h e …………………………. day o f………………………… .. 19 . . . .(Signed)…………………………. . Party (or Registered Attorney)Address………………………….No. 11FORM OF APPOINTMENT OF AGENT TO ACCEPT SERVICE OF SUMMONS AND OTHER PROCESS(GENERAL AND SPECIAL)( Where the appointment is special, head with title o f the action.)I……………………….. . o f……………………… do hereby constitute and appoint…………………………. o f …………………………..my agent to receive on my behalf the service of all summonses and other processes in (any action, appeal, or othercivil proceeding whatsoever in any court, or where the appointment is special, substitute in the above-namedaction).Witness my hand th is …………………………. day o f ……………………………,19 ………The address for service of the said …………………………. is a t ……………………………(Signed)—–AddressNo. 11AAPPLICATION FOR REGISTRATION OF ADDRESS FOR SERVICE OF PROCESSTo the Registrar of Lands o f………………………….I (name in fu ll and address)………………………………..apply under section 30A of the Civil Procedure Code forregistration in or in continuation of the folio (or folios) specified in B below of the address specified in A below asthe address for service of process in any action upon the mortgage registered in the folio or folios specified in Bbelow. Particulars of the instrument under which I derive title are given in C below.AADDRESS FOR SERVICE(Name o f registered attorney or person to whom process is to be sent.)(Full postal address in Sri Lanka)e.g., H. John Perera,No. 18, Maliban Street,Pettah, Colombo.BFOLIO (or FOLIOS) IN WHICH THE ADDRESS IS TO BE REGISTEREDVolume:Folio: . .Volume:Folio: . .V/201[Section 28.][Section 30.][Section 30A][§3, Law 12 of1973.]Cap. 105] CIVIL PROCEDURE CODE[Sections 40-46.]CPARTICULARS OF INSTRUMENT UNDER WHICH APPLICANT DERIVES TITLE(1) Number and date of deed : ………………………….(2) Name of attesting notary: ………………………….(3) Volume and folio where the deed is registered.:2 . I further declare that my address for service previously registered; with you o n …………………………………. involume…………………….. folio ………………………….. is hereby cancelled.3. The registration fee of Rs…………………………… is enclosed in stamps.(Signature of applicant.)* No. 14FORMAL PARTS OF THE PLAINTIn the District Court of Colombo (or Primary Court, as the case may be).A. B., o f………………………….. {names, descriptions, and addresses o f all the plaintiffs, and if they or any o f themsue in any representative capacity, state the capacity—e.g., “ as executor of C. D. ” or “ administrator ofthe estate of E. F. ” — or if the plaintiff is a minor or person o f unsound mind appearing by his nextfriend or manager, say “ a minor, by C. D., o f…………. .. his next friend ”) ………………….. Plaintiff.AgainstT. Z , o f…………………………….. (names, descriptions, and addresses o f all the defendants as above, stating thecapacity, if any, as above in which any o f them are sued)………………………………………. Defendant.T h e …………………………. day o f………………………….. , 19 . . .The plaint of the above-named plaintiff (or plaintiffs) (and if the case is so add : appearing by G. H., hisregistered attorney) states as follows:(Here set forth the cause o f action, and if there are more than one, thus:)First: For a first cause of action—1. That, &c., &c., according to forms following.Second: And for a second cause of action—1. That, &c., &c.,Wherefore the plaintiff (or plaintiffs) prays for judgment against the defendant (or defendants) for the sum of………………………… rupees, together with interest thereon at the rate o f …………………………….per centum per annumfrom th e …………………………… day o f ………………………………19 . . . .(or when the action is fo r the recovery o f sumswhich became payable at different times or at varying rates o f interest, with interest at the rate o f ………………………..per centum per annum o n …………………………. rupees from th e ……………………………day o f………………………….. 19 . . .and at the rate o f …………………………. o n …………………………… rupees from t h e …………… …………. day o f ………………………………..19 . . . . , until payment in full; or if the action is brought to recover specific goods, and the plaintiffprays for a return of the said goods or their value, a n d …………………………..rupees as damages for their detention;or if the action is brought to recover lands or houses or the like, and the plaintiff prays judgment for the saidpremises and for possession thereof, a n d ……………………………. rupees as damages, or………………………… rupees permonth as mesne profits, as the case may be) ; together with the costs of this action; and for such further or otherrelief as to the court shall seem meet.Signature ………………………..(Ofplaintiff’s registered attorney where he appears by one; if otherwise, plaintiff must sign, and anofficer authorized by the court in that behalf must verify the signature.) ■Forms No. 12 and 13 are omitted consequent on the repeal of sections 31 and 32 by Law No. 20 of 1977.V/202CIVIL PROCEDURE CODE [Cap. 105No. ISFORMAL PARTS OF THE ANSWER AND REPLICATION(Title and number o f action, names, descriptions and addresses ofparties, as in the plaint.)T h e …………………………. day o f……………………………. 19——The answer of the above-named defendant (or defendants, and if the case is so add: appearing by G. H„ hisregistered attorney) states as follows :—(Here set forth the defence or defences and claim in reconvention, if any, separately stating and numberingthem ; and where defendant prays fo r a declaration o f title to land, conclude) And the defendant prays forjudgment for the said premises.Signature………………………….. (as in Plaint.)(For Replication, follow this form as near as may be.)No. 16FORM OF SUMMONS(Title.)To the above-named defendant (or defendants).Whereas the above-named plaintiff has instituted an action against you in this court for (state particulars o fclaim), you are hereby required to file in court your answer, if any, to the plaint herewith annexed on or before the………………………….. day o f…………………………… 1 9 ……….. and you are hereby required to take notice that in defaultof your filing answer on or before the said date the action will be proceeded with and heard ex parte.You are further required, if you do not appear by a registered attorney, to file a memorandum stating anaddress at which all legal notices may be served.By order of court,Registrar.Note. —If you desire to receive notice of the date on which the above action will be called in open court, in orderto fix the date of trial, you are required by section 80 to furnish to the Registrar of this Court a registered addressand tender stamps to the requisite value to cover postage by registered post.This day o f……………… 19Sgd : Registrar.No. 16AMEMORANDUM OF REGISTERED ADDRESSIn the District Court/ Primary Court o f………………………….Case N o .On th is ……………….. ………..day o f ……………………………19 . . . .I , …………………………. , being the defendant in the above action hereby furnish my postal address for service of thenotice under section 80 of this Code and all other legal documents required to be served on me under this Code.I undertake to inform the Registrar of any change of address.I also tender stamps to the value of Rs……………………………. to cover cost of service of the notice under section 80on me by registered post.Signature: ………………………….Defendant.Address:Signature: …………….Defendant.[Sections 75and 79.][Section55(1).][§125, Law 20of 1977.][Section 55(2).][§125, Law 20of 1977.]V/-203Cap. 105] CIVIL PROCEDURE CODE[Sections 55.and 364.][Sections 69,70 and 71.][§125, Law 20of 1977.][Section 703.]No. 17FORM OF PRECEPT TO FISCAL TO SERVE SUMMONS(Title.)To the Fiscal of th e ………………………….Court o f…………………………..Serve forthwith the summons in the above-named action, which, with duplicates, is herewith transmitted to you,upon each of the persons to whom it is directed, and leave with or tender to each such person a duplicatesummons and one of the copies of (or concise statements presented with) the plaint, which accompany thesummons. And certify to this court on or before t h e ………………………….. day o f …………………………….. 19 . . . . , inwhat manner you have executed this precept, returning the summons attached to your certificate as an exhibit.By order of court,(Signed) …………………………., Registrar.The day o f . ., 19..No. 18FORM OF SUMMONS FOR SERVICE OUT OF SRI LANJCA(Title.)To the above-named defendant (or defendants).Whereas the above-named plaintiff has instituted an action against you in this court for (state particulars o fclaim) you are hereby required to file in court your answer, if any, to the plaint herewith annexed on or before the…………………………..day o f ……………………………19 …………. and you are hereby required to take notice that in defaultof your filing answer on or before the said date, the action will be proceeded with and heard ex parte.You are further required, if you do not appear by a registered attorney, to file a memorandum stating anaddress at which, all legal notices may be served.By order of court,Registrar.Note. —If you desire to receive notice of the date on which the above action will be called in open court, in orderto fix the date of trial, you are required by section 80 to furnish to the Registrar of this Court a registered addressand tender stamps to the requisite value to cover postage by registered post.Sgd: ………………….Registrar.This day of 1 9 . . . .No. 19SUMMONS IN AN ACTION OF SUMMARY PROCEDURE ON A LIQUID CLAIM(Title.)To the above-named defendant (or defendants).Whereas the above-named plaintiff has instituted an action against you in this court under Chapter LIII of theCivil Procedure Code, f o r …………………………..rupees principal and interest (o r……………………………rupees, balanceof principal and interest) due to him as payee (or indorsee) of a bill of exchange (or as the case may b e: state theinstrument on which the claim is made), of which a copy is hereto annexed:You are hereby summoned to obtain leave from the court w ithin …………………………….. days from the servicehereof, inclusive of the day of such service, to appear and defend the action, and within such time to cause anappearance to be entered for you. In default whereof the plaintiff will be entitled at any time after expiration ofV/204CIVIL PROCEDURE CODE [C a p .105such ………………………….. days to obtain a decree for any sum not exceeding…………………………… rupees (name thesum claimed), together with interest thereon at the rate specified in the said (instrument) to the date of payment infull, and the sum o f…………………………. rupees for costs.Leave to appear may be obtained on an application to the court supported by affidavit showing that there is adefence to the action on the merits, or that it is reasonable that you should be allowed to appear in the action.(Here copy the instrument sued oft, and where it is a negotiable instrument and carries endorsements, with theendorsements.)By order of court.(Signed)…………………………. . Registrar.The day of , 19No. 20FORMS OF CONCISE STATEMENTS TO BE PRESENTED WITH PLAINTThe claim of the plaintiff (and where the plaintiff sues in a representative capacity, ad d: suing as administratorof the estate and effects of A. B„ deceased, or as the case may be) i s ……………………………. rupees for money lent(and interest, or as the case may be, showing the nature o f the claim). ( Where defendant is sued in a representativecapacity, state it, as) The defendant, C. D„ is sued as the administrator of the estate and effects of X. Y„ deceased(and the defendants E. F. and G. H., as his co-heirs-at-law, or as the case may be).(Add, where the claim is fo r a debt or liquidated demand) A n d ………………………….. rupees for costs : and if theamount claimed be paid to the plaintiff or his registered attorney w ithin ……………………………….. days (or if thesummons is to be served out o f the jurisdiction, insert the time fo r appearance limited in the order) from theservice hereof, further proceedings will be stayed.Add, when necessary—And for an injunction.And for mesne profits.And for an account of rent, or arrears of rent.And for breach of covenant for repairs (or as the case may be).The following may be used in appropriate cases:Partnership.The plaintiffs claim is to have an account taken of the partnership dealings between the plaintiff and defendant(under articles of partnership dated t h e ………………………….. day o f . . . …………………… ), and to have the affairs ofthe partnership wound up.By Mortgagee.The plaintiffs claim is to have an account taken of what is due to him for prinicipal, interest, and costs on amortgage dated th e ……………………………day o f……………………………. , made between (parties), or by deposit of titledeeds, and that the property mortgaged may be realized by sale.By Mortgagor.The plaintiffs claim is to have an account taken of what, if anything, is due on a mortgage dated…………………….and made between (parties), and to redeem the property comprised therein.Raising Portions.The plaintiffs claim is that the sum o f …………………………..rupees, which by a deed of settlement dated……………..was provided for the portions of the younger children o f ……………………………may be raised.Execution o f Trust.The plaintiffs claim is to have the trusts of an indenture d a te d …………………………… and made between (parties),carried into execution.[Section 49.]V/205Cap. 105] CIVIL PROCEDURE CODE[Sections 94 etseq.][Section 99.][Section 101.]Cancellation or Rectification.The plaintiffs claim is to have a deed datedrectified.,, and made between (parties), set aside orSpecific Performance.The plaintiffs claim is for specific performance of an agreement dated…………………………. day offor the sale by the plaintiff to the defendant of certain hereditaments a t ………………………….*No. 25FORM OF INTERROGATORIES(Title.)Interrogatories on behalf of the above-named plaintiff (or as the case may be) for the examination of theabove-named defendant (or as the case may be):1. —Did not, Ac.2. —Has not, &c.The defendant A. B. is required .to answer the interrogatories numbered………………………….The defendant C. D. is required to answer the interrogatories numbered………………………….(Signed)………………………….. Registered Attorneyfor Plaintiff.No. 26FORM OF ANSWER TO INTERROGATORIES(Title.)The answer of the above-named defendant, A. B. (or as- the case may be), to the interrogatories for hisexamination delivered on behalf of the above-named plaintiff(or as the case may be) :In answer to the said interrogatories, I, the above-named defendant, A. B„ make oath (or affirmation) and sayas follows:1,2, 3, 4.—(Set forth answers to the interrogatories in paragraphs numbered consecutively.)5.—I object to answer the interrogatories num bered……………………………. . on the ground that (state ground o fobjection, verifying the same).Sworn (or affirmed) th is …………………………. day o f………………………….. . 19 . . . . , before me, &c.No. 27FORM OF NOTICE TO ADMIT GENUINENESS OF DOCUMENTS(Title.)To (set out names and places o f residence ofpersons to be served with the notice).Take notice that the above-named plaintiff(or as the case may be) in this action proposes to adduce in evidencethe several documents hereunder specified, and that the same may be inspected by the defendant (as the case maybe) or his registered attorney a t ……………………… o n ……………………… between the hours o f…………………………… and…………………………..: and the defendant (or as before) is hereby required, within forty-eight hours from the* Forms Nos. 21 to 24 are omitted as being not applicable to sections 84 to 86, replaced by Law No. 20 of 1977.V/206CIVIL PROCEDURE CODE [Cap. 105hour last mentioned, to adtnit that such of the said documents as are specified to be originals were respectivelywritten, signed, or executed as they purport respectively to have been, and that such as are specified as copies aretrue copies.The day of 19By order of court,(Signed)—–(Here annex Schedule o f Documents.), Registrar.No. 28FORM OF ADMISSION OF GENUINENESS OF DOCUMENTS(Title.)To (names, &c., o f persons to be served).I (or We, if the case is so), saving all just exceptions as to the admissibility thereof in evidence, hereby admit thatthe document mentioned in the notice of th e ………………………….. day o f……………………………. , 1 9 ………issued fromthis court at the instance of(as the case may be, or, i f any are not admitted, that such of the documents mentioned(as above) as are included in the schedule hereto annexed) were respectively written (Ac., as in notice).(Signed)…………………………… (By party or registered attorney.)T h e …………………………. day o f …………………………….19 . . . .No. 29FORM OF NOTICE TO PRODUCE DOCUMENTS FOR INSPECTION(Title.)To (set out names and place o f residence o f party to be served).Take notice that the above-named plaintiff (or as the case may be) requires you to produce for inspection byhim or his registered attorney the following documents referred to in (stale as the case is) ; that is to say (describedocuments), and to permit such party or registered attorney to take copies thereof.By order of court,(Signed)…………………………. Registrar.T he …………………………. day o f ……………………………. 19 . . .No. 30FORMS OF APPOINTMENT, AND OF REFUSAL. TO INSPECT DOCUMENTS(rule.)To (name, Ac„ o f person to be served).Take notice that the plaintiff (or as the case may be) can inspect the documents mentioned in the notice of the……………………….day o f……………………………. . 19 . . . ., issued from this court at his instance, except (mention anydocument o f which inspection is refused), at my office (or as the case may be) on th e ……………………………. day of………………………19 . . . . . a t ……………………………. o’clock of th e ……………………………. noon. The defendant (or as thecase may be) objects to produce the documents hereinbefore excepted, on the ground (state the ground).(Signed)…………………………. , (By party or registered attorney.)T he…………………………. day o f…………………………. , 19 . . . .V/207[Section 101.][Section 104.][Sections 104and 105.]Cap. 105] CIVIL PROCEDURE CODE[Section 105.][Sections121-126.]No. 31FORM OF NOTICE OF OBJECTION TO GIVE INSPECTION(Title.)To (as in last form).Take notice that the defendant (or as may be) objects to give the plaintiff (or as may be) inspection of thedocuments mentioned in the notice (as in last form), on the ground (state the ground)…………………………..(Signed as before.)T h e …………………………. day o f………………………….. ,19 ………..No. 32FORM OF SUMMONS TO WITNESS(Title.)To (name, description, and address o f witness).You are hereby summoned to appear in this court in person on the .•………………………… day o f…………………………19 …………a t …………………………… o’clock in the forenoon, to give evidence on behalf of the plaintiff(or defendant)in the above-mentioned action, and to produce (here describe with convenient certainty any document theproduction o f which is required: if the summons is only to give evidence, or only to produce a document, it mustbe so expressed). And you are not to depart thence until you have been examined (or have produced thedocument) and the court has risen, or unless you have obtained the leave of the court.By order of court,(Signed)…………………………..Registrar.The day o f . .. 19…..NOTE. 1.—If you are summoned only to produce a document and not to give evidence, you shall be deemed to have complied with the summons ifyou cause the document to be produced in this court on the day and at the hour within-named.NOTE. 2.—If you are detained beyond the day within-named, a sum o f……………….. rupees will be tendered to you for each day’s attendance beyondthe day specified.(NOTE. 3.—No money having been paid to the court to cover the costs of your attendance, and no security having been given for the paymentthereof, your attendance on this summons is not obligatory.)(NOTE. 4.—Money has been paid into court (or security has been given, (as the case may be) for the costs of your attendance.)No. 33FORMS OF PLAINTSPLAINTS IN ORDINARY CASES(i) For Money Lent(Title.)1. —That on th e ………………”…………. day o f …………………………….,1 9 ………a t …………………………… plaintiff lent thedefendant…………………………. rupees repayable on demand (or on th e ………………………….. day o f ……………………….).2 . —That the defendant has not paid the same, except……………………… rupees paid on th e ……………………………day o f…………………………. ,1 9 …………(I f the plaintiff claims exemption from any law o f limitation, sa y:3. —The plaintiff was a minor (or insane) from th e ……………………… day o l ………………………….. till th e ………………………….day o f ……………………………)4 . —The plaintiff prays judgment f o r ………………………….. rupees, with interest a t …………………………… per centumfrom the . . . . ……………….. day o f ………………………….. , 19 . . . .V/208CIVIL PROCEDURE CODE [C a p .105(ii) For Money received to Plaintiff’s use(Title.)1. —That on th e ………………………. day o f……………………………… 19 ………. a t ……………………………..the defendantreceived………………………….. rupees (or a cheque on the . -…………………………..Bank f o r ……………………………. rupees)from one E F. for the use of the plaintiff.2. —That the defendant has not paid (or delivered) the same accordingly.3. —The plaintiff prays judgment f o r ………………………… rupees, with interest a t ………… per centum from the…………………. day o f………………………….. ,1 9 ………(iii) For Price o f Goods sold by a Factor(Title.)1. —That on th e ……………………………day o f ………………………………19 ……….. , a t ……………………………. he and E. F„since deceased, delivered to the defendant (one thousand barrels o f flour, five hundred bushels o f rice, or as thecase may be) for sale upon commission.2. —That on th e …………………………. day o f………………………………. . 19 . . . .(or, on some day unknown to theplaintiff, before th e ……………………………… day o f……………………………….. , 1 9 ……….. ), the defendant sold the saidmerchandise f o r …………………………. rupees.3. —That the commission and expenses of the defendant thereon amount t o …………………….. rupees.4. —That on th e ……………………. day o f ………………………………, 1 9 ……… the plaintiff demanded from thedefendant the proceeds of the said merchandise.3.—That he has not paid the same.(Demand ofjudgment.)(iv) For Money received by Defendant through the Plaintiffs Mistake o f Fact(Title.)1. —That on th e ……………………….. day o f……………………………… 1 9 …………a t …………………………… .. the plaintiffagreed to. buy and the defendant agreed to sell……………………………bars of silver a t ……………………………. cents perounce of fine silver.2. —That the plaintiff procured the said bars to be assayed by one E. F., who was paid by the defendant for suchassay and that the said E. F., declared each of the said bars to contain 1,300 ounces of fine silver, and that theplaintiff accordingly paid the defendant…………………………. rupees therefor.3. —That each of the said bars contain only 1,200 ounces of fme silver.4. —That the defendant has not repaid the sum so overpaid.(Demand ofjudgment.)(v) For Money paid to a Third Party at the Defendant’s Request. (Title.)1-—That on the .’…………………………day o f……………………………. 19 ………. a t …………………………… , at the request (orby the authority) of the defendant, the plaintiff paid to one E. F . , …………………………. rupees.2. —That, in consideration thereof, the defendant promised (or became bound) to pay the same to the plaintiffon demand (or as the case may be).3. —That (on th e …………………………. day o f ……………………………,1 9 …………the plaintiff demanded payment of thesame from the defendant, but) he has not paid the same.(Demand ofjudgment.)V/209Cap. 105] CIVIL PROCEDURE CODE(vi) For Goods sold at a Fixed Price and delivered(Title.)1. —That on th e …………………………. day o f…………………………… 19 ……….. a t ………………………….. E. F., o f…………………………… deceased, sold and delivered to the defendant (one hundred barrels o f flour, or the goods mentioned inthe schedule hereto annexed, or sundry goods.)2 . —That the defendant promised to p ay …………………….. rupees for the said goods on delivery (or on the . . . ………………….. day o f …………………………….some day before the plaint wasfiled).3. —That he has not paid the same.4. —Thstt the said E. F. in his lifetime made his will, whereby he appointed the plaintiff executor thereof.5. —That on th e …………………………. day o f………………………….. . 19 ………. the said E. F. died.6 . —That on t h e ………………………… day o f……………………………… , probate of the said will was granted to theplaintiff by the District Court o f………………………….7. —The plaintiff as executor as aforesaid (demand o f judgment).(NOTE — If a day was fixed for payment it should be stated as furnishing a date for the commencement of interest.)(vii) For Goods sold at a Reasonable Price and delivered(Title.)1. —That on th e …………………………. day o f……………………………. 19 ……….., a t ……………………….. , plaintiff sold anddelivered to the defendant (sundry articles o f house furniture), but no express agreement was made as to the price.2. —That the same were reasonably w orth…………………….. rupees.3. —That the defendant has not paid the same.(Demand ofjudgment.)(NOTE — The law implies a promise to pay so much as the goods are reasonably worth.)(viii) For Goods delivered to a Third Party at Defendant’s Request, at a Fixed Price(Title.)1. —That on th e ……………………………day o f…………………………… 1 9 ……….. . a t ………………………….. plaintiff sold tothe defendant (one hundred barrels o f flour), and at the request of the defendant, delivered the same to one E. F.2. —That the defendant promised to pay the plaintiff…………………….. rupees therefor.3. —That he has not paid the same.(Demand ofjudgment.)(ix) For Necessaries furnished to the Family o f Defendant’s Testator, without his ExpressRequest, at a Reasonable Price(Title.)1.—That on th e …………………………….. day o f ………………………………..1 9 ………… . a t ……………………………… plaintifffurnished to (Mary Jones), the wife of (James Jones), deceased, at her request sundry articles of (food andclothing), but no express agreement was made as to the price.V/210CIVIL PROCEDURE CODE [Cap. 1052. —That the same were necessary for her.3 . —That the same were reasonably w orth…………………….. rupees.4. —That the said (James Jones) refused to pay the same.3.—That the defendant is the executor of the last will of the said ., thedefendant, and other the creditors of E. F.).2. —The plaintiff has taken upon himself the burden of the said trust, and is in possession (or of the proceeds of)the movable and immovable property conveyed (or assigned) by the before-mentioned deed.3. —The said C. D. claims to be entitled to a beneficial interest under the before-mentioned deed.4. —The plaintiff is desirous to account for all the rents and profits of the said immovable property (and theproceeds of the sale of the said, or of part of the said, immovable property, or movable or the proceeds of the saleof, or part of, the said movable property, or the profits accruing to the plaintiff as such trustee in the execution ofthe said trust): and he prays that the court will take the accounts of the said trust, and also that the whole of thesaid trust-estate may be administered in the court for the benefit of the said C. £>., the defendant, and all otherpersons who may be interested in such administration, in the presence of the said C. D. and such other persons sointerested as the court may direct, or that the said C. D. may show good cause to the contrary.(cvi) Realization o f Mortgage(Title.)1. —By a writing obligatory dated th e ………………………. day o f……………………………… 19 ……….. . the defendantbound himself to pay to the plaintiff (his heirs, &c.) the principal sum o f…………………………. rupees, together withinterest thereon at the rate o f…………………………. per centum per annum (on demand, or as the case may be).2. —For securing the payment of the said principal and interest the defendant mortgaged with the plaintiff, hisheirs, &c., the following property (describe).3. —(Where the bond is not payable on demand, allege notice.)4. —There is now due from the defendant to the plaintiff the sum o f……………………… rupees for principal andinterest on the said writing.5. —The plaintiff prays that the court will order the defendant to pay him the said sum o f……………………….rupees, with such further interest as may accrue between the filing of the libel and the day of payment, and also thecosts of this action, on some day to be named by the court, and in default that the said premises may be sold, andV/240CIVIL PROCEDURE CODE [Cap. 105the proceeds applied in and towards the payment of the amount of the said principal, interest, and costs; and thatif such proceeds shall not be sufficient for the payment in full of such amount, the defendant do pay to the plaintiffthe amount of the deficiency with interest thereon at the rate o f …………………………… p er centum per annum untilrealization; and that for that purpose all proper directions may be given, and accounts taken by the court.(cvii) Redemption(Title.)»A lter fo rm cvi th u s:Transpose parties and also the fa cts in paragraphs 1 and 2.For paragraph 4 substitute—4. —There is now due from the plaintiff to the defendant, for principal and interest on the said writing, the sumo f ………………………………..rupees, which the plaintiff is ready and willing to pay to the defendant, of which thedefendant, before the filing of this libel, had notice.For paragraph 5 substitute—5. —The plaintiff prays that he may redeem the said premises and that the defendant may be ordered to releasethe same to him upon the payment’of the said sum o f ……………………………rupees and interest, with such costs (ifany) as the court may order, upon a day to be named by the court, and that the court will give all properdirections for the preparation and execution of such release and doing such other acts as may be necessary to puthim into possession of the said premises freed from the said mortgage.(cviii) (fl) Specific Performance(Title.)1. —By an agreement dated th e …………………………..day o f ………………………… . , 19 ………. and signed by theabove-named defendant, C. £>., he, the said C. D. contracted to buy of (or sell to) plaintiff certain immovableproperty therein described and referred to, for the sum o f…………………………. rupees.2. —Plaintiff has applied to the said C. D. specifically to perform the said agreement on his part, but he has notdone so.3. —Plaintiff has been and still is ready and willing specifically to perform the agreement on his part, of whichthe said C. D. has had notice.4. —The plaintiff prays that the court will order the said C. D. specifically to perform the said agreement, and todo all acts necessary to put plaintiff in full possession of the said property (or to accept a conveyance andpossession of the said property) and to pay the costs of the action.[M B.— In action fo r delivery up, to be cancelled, o f any agreement, om it paragraphs 2 and 3 and substitute aparagraph staling generally the grounds fo r requiring the agreement to be delivered up to be cancelled— such as,that the p la in tiff signed it by mistake, under duress, or by the fra u d o f the defendant— and alter the prayeraccording to the relief sought.](cix) (b) Special Performance(Title.)1- —That on th e …………………………..day o f…………………………… , 1 9 ………… the defendant was absolutely entitledto certain immovable property described in the agreement hereto annexed.2- —That on the same day the plaintiff and defendant entered into an agreement under their hands, a copy ofwhich is hereto annexed.V/241Cap. 105] CIVIL PROCEDURE CODE[Section 471.]3. —That on th e …………………………. day o f……………………………..19………… the plaintiff tendered………………………… rupees to the defendant, and demanded a conveyance of the said property.4. —That on th e …………………………… day o f……………………………… 1 9 ……….. , the plaintiff again demanded suchconveyance.5. —That the defendant has not executed such conveyance. (Or, That the defendant refused to convey the sameto the plaintiff.)6. —That the plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant.The plaintiff prays judgment:(1) That the defendant execute to plaintiff a sufficient conveyance of the said property (following the termso f the agreement) ;(2) F o r…………………………. rupees compensation for withholding the same.(cx) Partnership(Title.)1. —He, the plaintiff, and the said C. D., the defendant, haVe been for the space o f………………………. years (ormonths) last past carrying on business together a t ……………………………. within the jurisdiction of this court, undercertain articles of partnership in writing, signed by them respectively (or under a certain deed sealed and executedby them respectively, or under a verbal agreement between them, the said plaintiff and defendant).2. —Divers disputes and differences have arisen between the plaintiff and defendant as such partners, whereby ithas become impossible to carry on the said business in partnership with advantage to the partners.3. —The plaintiff desires to have the said partnership dissolved, and he is ready and willing to bear his share ofthe debts and obligations of the partnership according to the terms of the said articles (or deed or agreement).4. —The plaintiff prays the court to decree a dissolution of the said partnership, and that the accounts of the saidpartnership-trading may be taken by the court, and the assets thereof realized, and that each party may be orderedto pay into court any balance due from him upon such partnership account, and that the debts and liabilities ofthe said partnership may be paid and discharged, and that the costs of the action may be paid out of thepartnership assets, and that any balance remaining of such assets, after such payment and discharge, and thepayment of the said costs, may be divided between the plaintiff and defendant, according to the terms of the saidarticles (or deed, or agreement), or that if the said assets shall prove insufficient, he, the plaintiff, and the saiddefendant may be ordered to contribute in such proportions as shall be just to a fund to be raised for the paymentand discharge of such debts, liabilities, and costs. And to give such other relief as the court shall think fit.[A. B.— In actions fo r winding up o f any partnership, om it the prayer fo r dissolution: but insert a paragraphstating the fa c t o f the partnership having been dissolved.]No. 34FORM OF ORDER FOR THE PERSONAL APPEARANCE OF PLAINTIFF, OR THE DIRECTOR OR SECRETARY OROTHER PRINCIPAL OFFICER OF A CORPORATION, BOARD, PUBLIC BODY OR COMPANY(Title.)T o …………………………….o f…………………………….. plaintiff in the above-named action (or director, or secretary, orother principal officer of th e …………………………. corporation, board, public body or company).You are hereby summoned to attend in person in this court in the action above specified a t …………………………..o’clock of the forenoon on th e …………………………. day o f ……………………………..1 9 ………The day of(Signed), 1 9 . . . .V/242, (Name and office o f Judge).CIVIL PROCEDURE CODE [Cap. 105No. 35FORM OF LIST OF DOCUMENTS PRODUCED BY PARTIES AT THE HEARING(Title.)No. Description of Document Which it bearsDate (if any) or Registered AttorneySignature of Party•No. 36FORM OF RECEIPT BOOK FOR RETURNED EXHIBITSNo. 37FORM OF PROCLAMATION TO BE ISSUED WHEN SUMMONS CANNOT BE SERVEDIn the District Court o f…………………………. (or as the case may be).PROCLAM ATION(Title.)To all to whom these presents shall come, greeting.Whereas it appears by the return made by the Fiscal o f ……………………………to a certain summons issued in theabove-named action at the instance of the above-named (plaintiff or defendant), whereby one (name o f witness)was required to appear and testify on behalf of the (plaintiff or defendant) in the said action [or to produce (anydocument required, describing it)] that the said Fiscal has not been able to serve a copy of the said summons onthe said (witness): And whereas it appears to the satisfaction of this court that the said (witness) has absconded (oris keeping out of the way for the purpose of avoiding such service as aforesaid), and that he is a necessary andmaterial witness on behalf of the said (plaintiff or defendant) at the trial of the above-named action [or that theproduction of the said (document) is necessary and material, &c.,], without whose testimony (or without which)the said (plaintiff or defendant) cannot safely proceed to trial: It is hereby proclaimed that the said (witness) isrequired to attend at this court on th e ……………………………day o f……………………. 19 ……….. a t …………………………….o’clock of the forenoon, to give evidence (or to produce, as before) on behalf of the said (plaintiff or defendant)under pain of sequestration of the movable and immovable property of the said ………………………….. in case of hisdefault, and of such further proceedings as may be found necessary.By order of court,T he …………………………. day o f…………………………….. 19 …………… (Signed)…………………………….Registrar.No. 38FORM OF MANDATE OF SEQUESTRATION AFTER PROCLAMATION(Title.)To the Fiscal of th e …………………………. Court o f ……………………………Whereas it appears by the return made by you (or by the Fiscal o f ……………………………..as the case may be) to acertain summons issued in the above-named action at the instance of the above-named (plaintiff or defendant),whereby one (name o f witness) was required to appear and testify on behalf of the (plaintiff or defendant) in the[Section 113.][Section 116.][Section 131.][Section 131.]V/243Cap. 105] CIVIL PROCEDURE CODEsaid action (or to produce any document, describing it) that you (or the said, Ac., as the case may be) have (has)not been able to serve a copy of the said summons on the said (witness): And whereas it has been proved to thesatisfaction of this court that the said (witness) has absconded (or is keeping out of the way for the purpose ofavoiding such service as aforesaid), and that he is a necessary and material witness on behalf of the said (plaintiffor defendant) at the trial of the above-named action [or that the production of the said (document) is necessaryand material, &c.,j, without whose testimony (or without which) the said (plaintiff or defendant) cannot safelyproceed to trial: And whereas in consideration of the premises a proclamation was on th e …………………………. dayo f………………………….. 19 ………… issued by this court requiring the attendance of the said (witness at this court forthe purpose aforesaid on t h e …………………………… day o f……………………………. , 1 9 ……….. . a t ……………………………o’clock of the forenoon, and the said (witness) has not attended at such time and place in accordance with theterms of such proclamation: You are therefore commanded to seize and sequester the houses, lands, goods,moneys, securities for money, and debts of the said (witness) to the value of(insert value not exceeding the amounto f cost o f sequestration and o f the fin e imposable under section 133), wheresoever and in whose custody orpossession soever the same may be within this district, and to retain and secure the same until the said (witness)shall appear and abide by the order of this court or until you receive further directions from this court herein: andto give due notice in writing to all persons in whose possession or power such property of the said (witness),whether movable or immovable, shall be, of this sequestration and requiring them to reserve and retain the same,and all issues, rents, profits, and interest accruing therefrom, to abide the order of this court. And you are furthercommanded on t h e …………………………… day o f……………………………. next to inform this court what property youshall have so seized and sequestered, with the true value of the same, and in whose possession the samerespectively was at the time of such seizure: and have you there this mandate.By order of court,(Signed) …………………………., Registrar.The day of ,19ENDORSEMENT ON THE ABOVE FOR FURTHER SEQUESTRATIONTo the Fiscal of th e ………………………..Court o f…………………………..Seize and sequester property of the within-named defendant to the further amount o f ………………………….rupees,in manner and form as you were hereby before directed.(Signed) …………………………… District Judge.No. 39[Section 137.] FORM OF WARRANT OF ARREST AGAINST A WITNESS FOR DISOBEDIENCE TO A SUMMONS(Title.)To the Fiscal of th e …………………………. Court o f…………………………..Whereas it appears by your return to a certain summons issued in the above-named action at the instance of(plaintiff or defendant), whereby one (name o f witness) was required to appear and testify on behalf of the(plaintiff or defendant) in the said action or to produce any document required, (describing it), that the said(witness) named therein was duly served with a copy thereof, but the said (witness) has failed to appear incontravention of the provisions of section 136 of the Civil Procedure Code): You are therefore to seize and arrestthe said (witness) and bring him before this court forthwith, in order that he may undergo the penalties legallyawarded against him for such contempt and disobedience, and further perform and abide by such order as thecourt shall make in this behalf: and have you there this warrant.(Signed)……………………….. .. District Judge (or as the case may be).The day of , 19 ….V/244CIVIL PROCEDURE CODE [Cap. 105No. 40FORM OF NOTICE TO PARTIES OF THE DAY FIXED FOR THE EXAMINATION OF A WITNESS ABOUT TO LEAVE THEJURISDICTION(Title.)To (plaintiffor defendant).Whereas application has been made to this court by the (defendant or plaintiff) in the above-named action thatthe examination o f ……………………………o f……………………………. a witness required by him in the said action, maybe taken immediately; and it has been shown to the satisfaction of this court that the said witness is about to leavethe court’s jurisdiction (or state any other good and sufficient cause): Take notice that the examination of the(witness) will be taken by the court on t h e ………………………… day o f……………………………. 19………… , a t ……………o’clock.By order of court.(Signed)…………………………….Registrar.The day of ,19No. 41FORM OF DECREE(Title.)This action coming on for final disposal before (name and office o f Judge) on th e …………………………… day of……………………..19………….. . (in the presence o f ………………………… on the part of the plaintiff an d …………………….on the part of the defendant), it is ordered and decreed (specify in precise terms the order made in the judgment).(And it is further ordered that the said…………… ………….. do pay to the said…………………………..his costs of thisaction (in Primary Courts stating the amount) as taxed by the officer of the court, with interest thereon at the rateo f……………………….. from the date of taxation to the date of realization.)(Where the decree is fo r delivery o f immovable property, describe the property in accordance with therequirements o f section 190.Where the decree is fo r delivery o f movable property, specify the amounts to be paid as alternative if deliverycannot be had.In case o f specific performance, state the amount o f damages to be paid if the contract is not performed.Where defendant is allowed a set-off, state what is due to plaintiff and defendant, and decree recovery o f thebalance.Where mesne profits pending or prior to action are claimed vary decree according to sections 195, 196.Where the action is to enforce a right o f pre-emption, or to realize a mortgage, carry out the directions o fsections 200, 201.In any case where a decree or order has the effect ofpostponing the final determination o f a case specify thereinthe date o f further hearing.)The day of(Signed), 1 9 . . . .V/245, (Name and office o f Judge).[Section 178.][Section 188.]Cap. 105] CIVIL PROCEDURE CODE[Sections 224and 225.][Section 225.]No. 42FORM OF APPLICATION FOR EXECUTION OF A DECREE BY SEIZURE AND SALE OF MOVABLE PROPERTYIn the District Court o f ………………………….I, A. B., plaintiff, hereby apply for execution of the decree herein below set forth:isComnterest,Reliefscree>% n &) t/iH1isC*3 w§is o** Vm Sumber of Actionames of Partiesate of DecreeWhether any Appipreferredof”Sa1a■«-»3‘•S’revious Appliesany, and Resulmount of debt,pensation, Ior othergranted by Dimount of Costs,awardedgainst whomenforcedode in whicCourt’s Assist;requiredZ z Q > < 0- < < < 2/ 2 3 4 5 * 6 7 s 9 10No. 175 A. B., 21st No — Rs. 250principal Rs. 25.75 costs The I pray that theD. C., Plaintiff Sept., (interest at—per as awarded in defen- total amount o fColombo against 1938 centum from the decree, dant C.D. Rs. — (togetherC.D.. date o f decree to Rs. 10.50 with interest ondefendant payment) subsequentlyincurredthe principal sumup to date o fpayment), andRs. 36.25 the costs o ftaking out thisexecution, berealized by(indicate mannero f reliefrequired).I, A. B., hereby declare that what is stated herein is true to the best of my information and belief.(Signed) A. B.This day of , 19No. 43FORM OF WRIT OF EXECUTION AGAINST PROPERTY(Title.)To the Fiscal of th e …………………………. Court o f…………………………..Levy and make of the houses, lands, goods, debts, and credits of the above-named………………………………. byseizure, and, if necessary, by sale thereof, the sum o f…………………………. rupees, which the said……………………………has recovered against the said …………………………..by a judgment of the court bearing date t h e ……………………………day o f …………………………… , 1 9 ……….. , and have that money before this court on t h e ……………………………day of…………………….,1 9 …………… to render to the said………………………….. .. and inform this court for what sum or sums,and to what person or persons, you have sold the property respectively: and have you there this mandate.By order of court,(Signed) , Registrar.The day of ,19V/246CIVIL PROCEDURE CODE [Cap. 105No. 44FORMS OF PROHIBITORY NOTICES(In the case o f a debt not secured by a nogotiable instrument.)To (defendant) and to (defendant’s debtor).Whereas (defendant) has failed to satisfy a decree passed against hini on th e …………………………. day o f………………………… ,1 9 ………… in (title, &c., o f case), in favour o f…………………………. f o r ……………………………rupees :I hereby give you notice that you, the said defendant, are hereby prohibited and restrained until the furtherorder of the court from which execution in the said action issued from receiving from the said (debtor) a certaindebt alleged to be now due from him to you, namely (particularize it ) : and that you, the said …………………………..,are hereby prohibited and restrained until such further order from making payment of the said debt or any partthereof to any person whomsoever.(Sig n ed ) ………………………… , Fiscal.The day of ,19No. 45(In the case o f a share in a public company, &c.)To (defendant) and to manager (& c.),…………………………. company.W hereas……………………………..has failed to satisfy a decree (recital as in No. 4 4 ) : I hereby give you notice thatyou, the defendant, are hereby prohibited and restrained until the further order of the court (as before) frommaking any transfer o f ………………………….. shares in the aforesaid company, n am ely ,…………………………….or fromreceiving payment of any dividends thereof: and that you, the s a i d ……………………………….. manager of the saidcompany, are hereby prohibited and restrained from permitting any such transfer or making any such payment.(Signed) …………………………. , Fiscal.No. 46(In case o f movable property not in the possession ofjudgm ent-debtor.)To (defendant) and to (person in possession).Whereas (recital as in No. 4 4 ) : I hereby give you notice that you, the said defendant, are hereby prohibited andrestrained until the further order (as before) from receiving from the s a id …………………………………the followingproperty now in his possession; that is to say (name it), to which you, the said defendant, are entitled subject toany claim of the said ……………………………, and that you, the sa id ………………………………. are hereby prohibited andrestrained until (as before) from delivering such property to any person whomsoever.(Sig n ed ) …………………………….Fiscal.No. 47FORM OF NOTICE WHERE PROPERTY IS IN CUSTODY OF A COURT OR PUBLIC OFFICER(Title.)Sir,—The plaintiff in the above-named action having applied under section………………………………of the CivilProcedure Code for seizure of certain moneys (or as the case is) now in your hands (state how the moneys, &c„ arein the hands o f the person addressed, on what account, &c.,) 1 request that you will hold the said (moneys), andany interest or dividend becoming payable thereon, subject to the further order of the court from which writ ofexecution in the said action issued.I have, &c., Fiscal.The day of ,19 . . .V/247[Section 229.][Section 232.]Cap. 105] CIVIL PROCEDURE CODE[Section 234.][Section 235.][Section 237.][Section 259.]No. 48FORM OF NOTICE TO A COURT REQUESTING STAY OF EXECUTION OF ITS DECREE(Title.)To (name and office o f Judge).Whereas A. B., plaintiff in the above-named action, obtained a decree against C. D., defendant in the saidaction, in this court on t h e …………………………. day. o f ……………………………..19……….for the payment o f ………………………… rupees; and whereas application has been made to this court for the seizure in execution of the said decreeof a decree obtained in your court by the said defendant against…………………………….in (title o f action): you arehereby requested to stay the execution of your said decree (until this notice shall be cancelled by this court, or asthe case may be).By order of court,(Signed)…………………………… Registrar.The day of , 19No. 49FORM OF PROHIBITORY NOTICE TO HOLDER OF A DECREE SOUGHT TO BE SEIZED(Title.)To (defendants).Whereas in execution of the decree passed against you in the above-named action application has been made forthe seizure of the decree passed against……………………………in (title, &c., o f action) of which you are the holder:you are hereby prohibited from transferring or charging the said decree in any way.By order of court,(Signed)…………………………… Registrar.No. 50FORM OF PROHIBITORY NOTICE IN CASE OF IMMOVABLE PROPERTYTo (defendant).Whereas you have failed to satisfy a decree passed against you on t h e …………………………. day o f …………………………… 19 ……….. , in (title, &c. o f case) in favour o f ………………………………f o r…………………………… rupees (here set outthe particulars required by the section.) I hereby give you notice that you, the said defendant, are herebyprohibited and restrained until the further order of the court from which execution in the said action issued fromin any way transferring, alienating, or charging the property specified in the schedule hereto annexed, and that allpersons are prohibited from receiving the same or any part thereof by purchase, gift, or otherwise.(Signed)…………………………. Fiscal.T h e…………………………. day o f…………………………. ,1 9 ………..(The Schedule.)No. 51FORM OF CERTIFICATE TO JUDGMENT-DEBTOR AUTHORIZING HIM TO MORTGAGE, LEASE, OR SELL PROPERTY(Title.)Whereas in execution of the decree passed in the above-named action notice of the sale of certain immovableproperty of the judgm ent-debtor……………………………. has been given, and the court has, on the application of thesaid judgment-debtor postponed the said sale to enable him to raise the amount of the decree by (mortgage, lease,or private sale as the case may be) of the under-mentioned property or part thereof.V/248CIVIL PROCEDURE CODE [Cap. 105This is to certify that the court doth hereby authorize the said judgment-debtor to make the proposed(mortgage, lease or sale) within a period o f…………………………from the date of the certificate:Provided that all moneys payable under such’ (mortgage, lease, or sale) shall be paid into this court and not tothe said judgment-debtor; and provided, further, that no such (mortgage, lease or sale) shall become absolute untilthe same shall have been confirmed by this court.(Signed)………………………….. Judge.The……………………….. day o f…………………………… 19……….(Details o f property referred to.)No. 52FORM OF FISCAL’S CERTIFICATE WHERE THERE HAS BEEN A RESALE AT A LOSS, OR A FAILURETO PAY THE DEPOSIT(Title.)I, A. B., Fiscal of th e ………………………… Court o f……………………………. hereby certify that the under-mentionedproperty was, on th e ……………………………day o f ………………………………. 19 . . . ., duly put up for sale under writNo……………………… of this court in execution of the decree in the above-named action.One…………………………was duly declared to be the purchaser of the said property at the said sale at the price ofrupees.(The sa id ……………………………..on being so declared to be such purchaser, failed to pay down the deposit of 25per centum on the amount of his purchase-money to the officer conducting the sale, and to give good andsufficient security to the satisfaction of such officer for the payment of the residue, in manner by law required ; ando n e …………………………….. , being the next highest bidder at the said sale, was thereupon duly declared to be thepurchaser of the said property at the price o f…………………………. rupees.The sa id …………………………….. thereupon became liable to pay the difference .between the said several sums of…………………. rupees a n d ………………………….. rupees, amounting t o ………………………. : . rupees.)Or,(The said …………………………..duly paid the deposit of 25 per centum on the amount of the said purchase-moneyto the officer conducting the sale and entered into good and sufficient security to the satisfaction of such officer forpayment of the residue, in manner by law required, but the said …………………………..has failed to pay such residue,although thirty full days have elapsed since the day of sale.In consequence of the failure aforesaid the said property was, on t h e …………………………. day o f ………………………… , 19 ……… , again put up for sale under the said writ, and resold, and o n e …………………………… was duly declaredto be the purchaser at such resale at the price o f…………………………. rupees.The sa id ……………………………..thereupon became liable to pay the difference between the said several sums of…………………. rupees a n d ……………………………rupees, amounting to the sum o f ……………………………rupees.)(Conclude:) Demand in writing was duly made upon the said ……………………………. for the payment of the saidsum o f …………………………..rupees, on th e …………………………… day o f…………………………… ,1 9 …………. , but althoughone week has elapsed since the date of such demand the sa id …………………………….. has not paid the said sum of……………….. rupees.° The(Signed)…………………………, Fiscal…………………………… Court ofday o f…………………………,1 9 …………(Schedule o f property.)No. 53FORM OF NOTICE TO PERSON IN POSSESSION OF MOVABLES SOLD IN EXECUTION(Title.)To (person in possession).Whereas…………………………… has become the purchaser at a sale by auction in execution of the above-namedaction of (property) now in your possession, I hereby give notice that you are prohibited and restrained fromdelivering possession thereof to any person except the said………………………….(Signed) , Fiscal.The day of , 19 . . . .V/249[Sections 260—267.][Section 278.]Cap. 105] CIVIL PROCEDURE CODE[Section 279.][Section 283.][Section 286.]No. 54FORM OF NOTICE PROHIBITING PAYMENT OF DEBTS SOLD IN EXECUTION TO ANY PERSON BUT THE PURCHASERTo (judgment-debtor) and to (judgment-debtor’s debtor).W hereas…………………………. has become the purchaser at a sale (&c.) of a certain debt due from you…………………………..to you………………………………..that is to say (state particulars); I hereby give you notice that you the said……………………….. are hereby prohibited from receiving payment of the said debt, and you the saidfrom making payment of the same to any person except the said (purchaser).(Signed)…………………………… Fiscal.T h e………………………….day o f………………………….. 19 ……………(Where the property sold in execution consists o f shares, this form must be followed, but the notice will bedirected to the person in whose name the shares are standing, and to the manager o f the company, and will beprohibitory o f transferring the shares or receiving or making payment o f dividends thereon.)No. 55FORM OF ORDER CONFIRMING SALE OF LAND(Title.)Whereas the under-mentioned property was on th e …………………………. day o f………………………….. .. 19 . . . . , soldby the F isc a l,……………………………. in execution of the decree in the above-named action: and whereas thirty dayshave elapsed since the receipt of the said Fiscal’s report of the said sale, and no application has been made to setaside the same (or that objections made have been disallowed): It is ordered that the said sale be and the same ishereby confirmed (” mutatis mutandis “, where the sale is set aside.)(Signed)…………………………. , (Name and office o f Judge.)T h e …………………………. day o f ……………………………..19………..(Schedule)No. 56FORM OF FISCAL’S CONVEYANCE TO PURCHASER AFTER CONFIRMATION OF SALE BY COURTTo all to whom these presents shall come, greeting.Whereas by virtue of a writ of execution issued from th e ……………………. Court o f…………………………… bearingdate th e ………………………… day o f…………………………… 19 . .., directed to the Fiscal (or Deputy Fiscal as the casemay be) of th e ………………………….Court, whereby he was directed (insert directions o f the writ), A. B. (Fiscal) ofthe said Court, did cause to be seized and taken the property hereinafter described, which, after due notice andpublication in manner by law prescribed, was exposed to public sale on the…………………………day o f…………………………. 19……… b y …………………………. , acting under the authority of the said Fiscal, and was sold to ……………………… as the highest bidder at the said sale for the sum o f…………………………. rupees:And whereas the said (purchaser) has duly paid to the said (Fiscal) the whole of the said purchase-money, andthus became entitled to a conveyance of the said property (or, where the plaintiff is purchaser)!: And whereas thesaid (purchaser) has been allowed the amount of purchase (or as the case may be) in reduction of his claim, andhas produced the order of court, copy whereof is hereunto annexed, and has thus become entitled, &c.):And whereas the said court by an order dated th e ………………………… day o f…………………………. , 19 . . . . , copyof which is hereunto annexed, has duly confirmed the said sale:Now these presents witness that the said A. B., Fiscal of th e ………………………… Court, in consideration of thesaid sum o f …………………………… rupees so paid by (or credited to) the said (purchaser) as aforesaid, the receiptwhereof the said A. B. doth hereby acknowledge, hath sold and assigned and by these presents doth sell andassign, unto the said (purchaser), his heirs, executors, administrators, and assigns, all that (name and descriptiono f the land by metes and bounds), containing…………………………… and described in the diagram or map annexedto (some title deed delivered to the purchaser, or if there is none, then) these presents, and marked………………….. ..to have and to hold the same with their and every of their appurtenances to him, the said (purchaser), his heirs,executors, administrators, and assigns for ever.V/250CIVIL PROCEDURE CODE [Cap. 105In witness whereof the said (Fiscal) hath hereunto subscribed his name a t ………………………….. thisday o f……………………… ,1 9 ……….Witnesses:Annexures. ………………. , Fiscal…………………… Court o f……………….(In cases where the sale has been effected in execution o f a decree specifically directing a sale, the conveyancewill be in accordance with the terms o f the decree.).No. 57FORM OF ORDER OF DELIVERY OF POSSESSION TO A PURCHASER WHERE PROPERTY IN OCCUPANCY OFJUDGMENT-DEBTOR(Title.)To the Fiscal,……………………….. Court o f………………………….Whereas…………………………….has become the purchaser of (land) at a sale in execution of the decree in theabove-named action, and whereas the said (land) is in the possession o f ………………………………, you are herebyordered to put the said (purchaser) into possession of the said (land), and, if need be, to remove any person boundby the decree who may refuse to vacate the same.(Signed)…………………………….(Name and office o f Judge.)The day of , 19»No. 60FORM OF WARRANT FOR ARREST OF A JUDGMENT-DEBTOR(Title.)To the Fiscal of th e ……………………….. Court o f………………………….Whereas…………………………was adjudged by a decree in the above-named, action, dated t h e ………………………….day o f……………………………19…………., to pay to the above-named plaintiff the sum o f…………………………. rupees,as noted in the margin :And whereas the said sum o f………………………… rupees has not been paid to the said plaintiff in satisfaction ofthe said decree:And whereas the court is satisfied (here specify the grounds on which the warrant is issued):These are to command you to arrest the said defendant, and unless the said defendant shall pay to you the saidsum o f…………………………rupees, together with…………………………. rupees for the cost of executing this process, tobring the said defendant before this court as soon as practicable after his arrest.You are further commanded to return this warrant on or before th e ………………………… day o f………………………..19 .. .., with an endorsement showing the day on and the manner in which it has been executed or the reason whyit has not been executed.The day of , 19(Signed)…………………………. ,(Name and office o f Judge.)* Forms Nos. 58 and 59 are omitted as having ceased to be applicable to section 296, as replaced by Law No. 20of 1977.[Section 287.][Section 298.]Rs. c.Principal………Interest ………..Costs ………….ExecutionTotalV/251Cap. 105] CIVIL PROCEDURE CODE[Section 299.]Rs. c.Principal………Interest ………..Costs . . . . . . .Total[Section 303.]Rs. c.Principal………Interest ………..Costs ………….ExecutionT o ta l………..No. 60AFORM OF NOTICE ON JUDGMENT-DEBTOR TO SHOW CAUSE WHY HE SHOULD NOT BE COMMITTED TO JAIL(Title.)To (judgment-debtor).Whereas you were adjudged by a decree in the above-named action^ dated th e …………………………. day o f…………………………… 19 . . . . . to pay to the plaintiff above-named the sum o f …………………………….rupees, as noted in themargin:And whereas the said sum o f …………………………..rupees has not been paid to the said plaintiff in satisfaction ofthe said decree:And whereas the court is satisfied (here specify the grounds on which the notice is issued):Take notice that you are hereby required to appear before the court on th e ………………………….day o f…………………………. , 1 9 …………a t ……………………………… o’clock in the forenoon to show cause, if any, why you should not becommitted to jail in execution of the decree entered in the above-named action.(Signed) ……………………………(Name and office o f Judge.)The day of , 19No. 60BFORM OF WARRANT FOR ARREST OF A JUDGMENT-DEBTOR UNDER SECTION 303(Title.)To the Fiscal of th e ……………………….. Court o f………………………….Whereas………………………… was adjudged by a decree in the above-named action, dated the ………………………….day o f………………..: . . . . , 19 . . . . , to pay to the above-named plaintiff the sum o f…………………………. rupees, asnoted in the margin:And whereas the said sum o f ………………………….rupees was not paid to the said plaintiff in satisfaction of thesaid decree:And whereas the court was satisfied (here specify the grounds on which the notice under section 299 wasissued):And whereas the said…………………………was required by a notice issued by this court, dated th e ……………………day o f………………………….. 19 . . .., to appear before the court on the …………………………. day o f…………………….. ,19……….a t …………………………. o’clock in the forenoon to show cause (if any) why he, the said………………………….should not be committed to jail in execution of the decree entered in the above-named action:And whereas the said………………………… failed to appear before this court on the day and at the time specifiedin the notice:These are to command you to arrest the said…………………………… and unless he, the said…………………………….shall pay to you the said sum o f……………………….. rupees, together with………………………….rupees for the cost ofexecuting this process, to bring the said……………………….. before this court as soon as practicable after his arrest.You are further commanded to return this warrant on or before th e…………………………day o f…………………….. ..19 .. .., with an endorsement showing the day on and the manner in which it has been executed or the reason whyit has not been executed.(Signed)……………………..(Name and office o f Judge).The day of , 1 9 . . . .V/252CIVIL PROCEDURE CODE [Cap. 105No. 61FORM OF WARRANT OF COMMITTAL TO JAIL(Title.)To the Fiscal of th e…………………………Court o f………………………….Receive into your custody the body o f…………………………… who has been committed to jail in execution of adecree of this court dated th e …………………………. -. . day o f ………………………………., 1 9 …………… entered in theabove-named action, for the sum o f………………………….rupees together with this warrant, and him safely keep inprison for a period of six months unless he shall in the meantime be discharged by order of this court.(Signed)………………………….(Name and office o f Judge).The day of , 19No. 62FORM OF WRIT FOR DELIVERY OF A SPECIFIC MOVABLE(Title.)To the Fiscal of th e…………………………Court o f………………………….Whereas by a judgment of this court dated th e ………………………….day o f ……………………………..19………… in theabove-named action, the said (plaintiff) recovered against the said (defendant) (or the said defendant was orderedto deliver to the said plaintiff) the following (specify movable property) : These are to command you that withoutdelay you cause the said (articles) to be delivered to the said (plaintiff), or to such person as he shall authorize toreceive the same. And in what manner you shall have executed this writ make appear to this court immediatelyafter the execution thereof, and have you there, &c.(Signed)The day of 19 . . . .No. 63FORM OF WRIT FOR DELIVERY OF IMMOVABLE PROPERTY(Title.)To the Fiscal,…………………………Whereas (recite “ mutatis mutandis “as in last fo r m ) : These are to command you that without delay you enterthe same and cause the said………………………… to have possession of the said land and premises, &c. And in whatmanner (conclude as in last form).No. 64FORM OF NOTICE WHERE A SUM OF MONEY IN COURT IS CLAIMEDTo (names o f parties and claimants).Take notice : That whereas the sum o f…………………………… rupees (recovered under a writ of execution issuedfrom this court on th e …………………………..day o f…………………………….. 19 . . . ., has been carried to the separateaccount of the plaintiff in the above-named action, or as the case may be) and is now in court standing to thecredit of the said plaintiff, and whereas the said (name or names o f claimants) has (have) given notice to this courtof a claim on their behalf to the said sum o f …………………………. rupees (or t o ……………………………rupees, part ofthe said sum o f…………………………rupees) on the ground (state ground) :[Section 311.][Section 320.][Section 323.][Section 350.]V/253Cap. 105] CIVIL PROCEDURE CODE[CH. XXIV.][Section 377.]This court will, on th e ……………………….. day o f………………………….,1 9 ………. , a t …………………………o’clock ofthe forenoon, proceed to hear and entertain the said claim, and determine the respective rights of the parties in thesaid sum.By order of court,(Signed)………………………… , Registrar.The day of ■19No. 65FORM OF PETITION IN AN ACTION OR APPLICATION OF SUMMARY PROCEDUREIn the District Court o f……………………….. …………………………. 1 9 …………( Where the application is not incidental to a pending action, set out, as in a plaint, name and description, &c„ o fparties, thus:)Between A. B. &c., petitioner, and C. D. &c„ respondent.(Where the application is incidental to a pending action say—)In the matter of an action between (set out the title) and (in the matter of A. B., deceased, or as the casemay be.)The humble petition of the above-named (plaintiffs, or as the case may be) showeth as follows:(Set out a plain and concise statement o f the facts constituting the ground o f application and its circumstances,and o f the petitioner’s right to make it, e.g. :)1. —That the said A. B., o f ……………………….., lately deceased, was one of the plaintiffs in the above-namedaction.2. —That the said A. B. died on th e ……………………. day o f…………………………… 19………. (and go on to showthat the right o f action survives to the remaining plaintiff alone).(Your petitioner therefore humbly prays for an order that the above-named action do proceed at the instance ofthe said petitioner, or for such other order in the premises as to this court seems meet. And your petitioner willever, &c.)[Annex to the petition any affidavits, &c. (see section 376), requisite to furnish prima facie proof o f the materialfacts set out.]No. 66FORM OF (a) ORDER “ NISI” O R (6) INTERLOCUTORY ORDER ON A PETITION IN AN ACTION OF SUMMARY PROCEDURE(Title.)This matter coming on for disposal before (name and office o f Judge) on th e …………………………. day o f …………………………….19 ……….. , after reading (the affidavit o f …………………………… , or as the case may be) and hearing theevidence o f…………………………. (as the case is) (recite petition and exhibits, &c„ adduced in support).(a) [It is ordered that (state the order, as that the said action do proceed at the instance of the said……………………….. ), unless sufficient cause be shown to the contrary on th e ……………………………. day o f …………………………….,19………. ](b) [It is ordered that t h e ………………………….. day o f…………………………… 19 ……….. , be and the same is herebyappointed for the determination of the matter in the said petition contained, and that the said (respondent) beheard in opposition to the prayer of the same if he appear before this court on the said day.]In the alternative (a)—[It is further ordered that the (respondent) do pay to the (petitioner) his costs of, and occasioned by, thisapplication.]………………………….(Signed, &c., as in No. 41.)V/254CIVIL PROCEDURE CODE [Cap. 105No. 67FORM OF ORDER REFUSING PETITION WHERE GROUNDS ADDUCED INSUFFICIENT TO SHOWPRIMA FACIE CASE(Proceed as in No. 66, and the order will be—)It is ordered that the prayer of the said petition be and the same is hereby refused.No. 68FORM OF ORDER DISMISSING PETITION WHERE PETITIONER DOES NOT APPEAR(Proceed as in No. 66, reciting the order made under (b) o f section 377, and continue—)And the said (petitioner) not having appeared either in person or by counsel before this court in support of hissaid petition:It is ordered that the said petition be and the same is hereby dismissed. [It is further ordered that the said(petitioner) do pay to the said (respondent) his costs of, and occasioned by, this application.]No. 69FORM OF ORDER WHERE RESPONDENT DOES NOT APPEAR(Proceed as in 66, reciting the order m ade under section 377, and continue—)And the petitioner having appeared (in person, or by registered attorney or by counsel) in support of his saidpetition, and the respondent not having appeared either in person or by registered attorney or counsel, althoughthe said recited order was duly served upon him as appears by the (oath or affidavit) o f………………………….( Then, i f the order is an order ” nisi ” under section 377 (a)—)The above order is made absolute.(But if the order was an interlocutory order under section 377 (b)—)It is ordered (state the order: and where costs have been prayed in the petition, and the court thinks right toallow them, further order as to costs).No. 70FORM OF ORDER WHERE BOTH PARTIES APPEAR(Proceed as in No. 66, reciting the order under section 377, and continue—) And both parties appearing (inperson, or as m ay be) and (the affidavit o f…………………………. having been read) and (the evidence o f……………………taken) and both parties heard: It is ordered on the application of (petitioner) that this matter be adjourned to the………………………….. day o f …………………………………1 9 ………… , to enable the said (petitioner) to adduce additionalevidence in support of his said petition, or that the questions or issues of fact arising in this matter be tried anddetermined.The questions or issues of fact to be so tried and determined on such day a re :1.—Whether, &c.’2.—Whether, &c.(Formal conclusion as in No. 41)[Section 380.][Section 382.][Section 383.][Sections 384,386, and 387.]V/255Cap. 105] CIVIL PROCEDURE CODE[Section 398.][Section 406.][Section 410.][Section 416.]No. 71FORM OF SUMMONS TO LEGAL REPRESENTATIVE OF A DECEASED DEFENDANT(Title.)T o …………………………… o f…………………………..Whereas the above-named…………………………….has, as plaintiff, institued the above-named action in this courtagainst the above-named……………………………..who has since deceased, and has made aruapplication to the courtalleging you to be the legal representative of the said deceased…………………………. , and desiring that you be madedefendant in his stead: You are hereby summoned to attend (in person, or by registered attorney, or in either way)in this court a t …………………………..o’clock of the forenoon on t h e …………………………… day o f ……………………………,1 9 ……………to defend the said action, and in default of your so appearing the said action will be heard anddetermined in your absence.By order of court,(Signed) …………………………., Registrar.The day of .19No: 72FORM OF APPLICATION FOR PERMISSION TO WITHDRAW FROM AN ACTION(Title.)I , …………………………………. plaintiff in the above-named action, hereby request the permission of the court towithdraw from the said action, with liberty to bring a fresh action in the same m atter; on the ground (statesufficient grounds fo r withdrawing).(Signed) …………………………., Plaintiff.The day of , 19No. 73FORM OF NOTICE OF PAYMENT INTO COURT(Title.)To (plaintiff).Take notice that the defendant in the above-named action has paid into co u rt…………………………….rupees, andthat that sum is enough to satisfy the plaintiffs claim (or the plaintiffs claim fo r………………………….).(Signed) …………………………… Party (or Registered Attorney).The”…………………………. day o f………………………….. ,1 9 ……….No. 74FORM OF SECURITY FOR DEFENDANT’S COSTS WHERE PLAINTIFF RESIDES OUT OF JURISDICTION OF THE COURT(Title.)Know all men by these presents that we, A. B., o f …………………………….and C. D., o f …………………………… .. arejointly and severally held and firmly bound to E. F„ (here insert name o f Registrar o f court, or as the case is) inthe penal sum o f ……………………………rupees (the sum m entioned in the order) to be paid to the said E. F., or hisV/256CIVIL PROCEDURE CODE [Cap. 105successors in the said office of (as the case is), for which payment to be well and faithfully made we bind ourselvesand each of us, our and each of our heirs, executors, and administrators, firmly by these presents, herebyrenouncing, &c.Dated th is …………………………. day o f …………………………….. 19 . . . .Whereas by an order of the said …………………………..Court o f ……………………………… dated th e …………………………..day o f………………………….. , 1 9 …………….. made in the above-named action, wherein…………………………… is plaintiffa n d …………………………….. is defendant, it was, on the application o f ……………………………, Registered Attorney for parties having interest, or as the case may be).(Signed by the party, and dated.)[Section 546.][Section 538.][Section 535.]V/263Cap. 105] CIVIL PROCEDURE CODE[§ 125, Law 20of 1977.1[Section 554K..](I) Name andoffice of Judge.[§125, Law 20of 1977.][Section 554L.]No. 93AFORM OF ORDER NISI DECLARING ESTATE INSOLVENTIn the District Court o f …………………………………In the matter of the Last Will/ Intestate Estateof the la te ………………………………………………………Deceased………………………………….Petitioner.vs………………………………Respondents.TestamentaryJurisdictionThis matter coming on for disposal before (1 ) …………………………. on th e ………………………….. day o f…………………..19…………………………..(in the presence o f ……………………………on the part of the petitioner, a n d ……………………………on the part of the respondents) (and the affidavit o f…………………………. dated………………………….. having been readand the evidence o f ………………………….taken), (and all parties heard).It is declared that the estate o f…………………………. deceased be administered as an insolvent estate in accordancewith the provisions of Chapter XXXVIIIa of the Civil Procedure Code unless the respondents or any person onwhom the Court directs the order to be served shall on or before th e …………………………. day o f………………………… ..19 …………. , show sufficient cause to the satisfaction of this Court to the contrary.(Signed)……………………District Judge.Dated this day of , 19No. 93BFORM OF NOTICE OF ORDER N ISI DECLARING ESTATE INSOLVENTIn the District Court o f………………………………….In the matter of the Last Will/Intestate Estateof the la te ……………………………………………………………………………………………………………… Deceased……………………………………………………….Petitioner.TestamentaryJurisdictionIt is hereby notified that the above-numbered testamentary action has been instituted in the above court for theadministration of the estate of the above-named deceased as an insolvent estate and order nisi has been enteredaccordingly therein.Any person interested is hereby required to appear before this court on th e ………………………….day o f…………………………. , 1 9 …………a t ……………………………… o’clock in the forenoon and show cause, if any, why the order nisi soentered should not be made absolute.By order of court,Registrar.Dated this day of , 19V/264CIVIL PROCEDURE CODE [Cap. 105[§125, Law 20of 1977.][Section 554N.]In the District Court o f …………………………………..In the matter of the Last Will/Intestate Estateof the la te ………………………………………………………………………………………………………………… Deceased………………………………………………………… Petitioner.vs……………………………………………………..Respondents.TestamentaryJurisdictionIt is hereby notified that the order nisi entered o n ………………………………………………………in the above-numberedtestamentary action has been made absolute o n ………………………….No. 93CFORM OF ORDER ABSOLUTE DECLARING ESTATE INSOLVENTBy order of court,Registrar.Dated this day of ,19No. 94CFORM OF CERTIFICATE OF CURATORSHIP AND GUARDIANSHIP [CH. XL.]In the Family Court o f………………………….In the matter of the estate of A. B„ a minor.1.—Whereas this court has, under the provisions of Chapter XL of the Civil Procedure Code, appointed you,……………………… , o f…………………………… , to be curator of the estate o f ………………………………a minor, until the said………………………..shall have attained the age of twenty-one years:You are hereby entrusted with the charge of the property of the said ………………………….. ; you may exercise thesame powers in the management of the estate as might have been exercised by the said …………………………..if not am inor; and you may collect and pay all just claims, debts, and liabilities due to or by the estate of the said ………..(2.—You are authorized to retain from the estate of the said ………………………….. .. …………………………….. rupees amonth assigned by this court as a suitable remuneration for the trouble and responsibility connected with thedischarge of your trust).3.—You are to keep regular accounts of all moneys received or disbursed by you on account of the estate, andto preserve all vouchers and other documents necessary to prove the correctness of such accounts.4. —In the event of this certificate being recalled under the provisions of section 591 of the said Code, you will berequired to make over the property in your hands to your duly appointed successor, and to account to such yoursuccessor for all sums of money or other property received or disbursed by you.5. —In the event of your desiring to resign your trust, this court will give you a discharge therefrom on youraccounting to your duly appointed successor for all sums of money or other property received or disbursed by you,and on your making over the property in your hands to such your successor.(6.—You are also hereby appointed guardian of the person of the sa id ……………………………..and are authorizedto retain from the estate of the said …………………………..the sum o f…………………………… rupees a month assigned bythis court as s suitable remuneration for the trouble and responsibility connected with the discharge of your trust.)V/265Cap. 105] CIVIL PROCEDURE CODE[CH. XLII.][Section 608.][Section 607.]7. —You are bound to provide for the education of the said ………………………..in a suitable manner under thegeneral superintendence and control of this court.8. —You are authorized to expend the sum o f…………………………….. rupees a month fixed by this court as anallowance for the maintenance and education of the said…………………………. (Here may be inserted, i f the court issatisfied o f its expediency, a direction to raise the allowance out o f corpus.)9. —You may, for any sufficient cause, be removed from your trust by this court.CSigned) …………………………… Judge of the Family Court.( When some person other than the curator is appointed guardian o f the person, the above fo rm must bemodified. The heading will be the sam e; the recital will be that the appointee is entrusted with the charge o f theperson and maintenance (and education) o f the m in o r: paragraph 2 o f the last fo rm m ust be adopted th u s: “ Youare authorized to receive from the curator; ” & c.; paragraphs 7, 8 and 9 may be used as they stand. In this eventthe preceding fo rm may be easily adapted.)No. 95FORM OF DECREE FOR SEPARATION “ A MENSA ET THORO ”(Begin as in an ordinary decree, see No. 41, and continue—)And it appearing to the court that the defendant has been guilty of (state act justifying separation) so as torender it unsafe and improper under existing circumstances for the plaintiff to cohabit with him or be under hisdominion and control: It is thereupon ordered and decreed that the plaintiff and defendant be separated from bedand board for ever: Provided, however, that the parties may at any tone hereafter, by their joint and mutually freeand voluntary act, apply to this court for leave to be discharged from this decretal order. And it is hereby declaredthat it will be criminal and an act void in law for either of them, during the life of the other, to contract matrimonywith any other person. [And it is further decreed that the plaintiff, according to the prayer of plaint, be entitled to,and charged with the custody, care, and education of (mention the children) in the pleadings mentioned:Provided always that this order for the custody, care and education of the said infant (infants) may at any timehereafter be modified, varied, or annulled upon sufficient cause shown.] [And it is further decreed that thedefendant do pay to the plaintiff (set out am ount o f alimony decreed, and manner o f paym ent, &c.) to be appliedtowards the maintenance of the plaintiff and her said ………………………….. .. and that this allowance is to continueuntil further order, and be subject to variation as future circumstances may require.] And it is further ordered(state order as to costs).(Signature, &c.)No. 96FORM OF DECREE OF NULLITY OF MARRIAGE(Proceed as in last form , and continue—)And it appearing to this court that on th e …………………………..day o f…………….. ‘………….. ,1 9 ……….. a pretendedmarriage was had and solemnized between the said A . B. C. and E. F. G., otherwise called E. F. C., but that at thetime of the solemnization of the said pretended marriage (she, the said E. F. G., otherwise called E. F. C., wasinsane and incapable of entering into such a contract, or state other grounds m aking the marriage a nullity):It is thereupon pronounced, declared, and decreed that the said pretended marriage so had and solemnizedbetween the said (names as before) was and is wholly and absolutely null and void to all intents and purposeswhatsoever: And that the said A . B. .C. was, and is, free from all bond of marriage with the said E. F. G.,otherwise called E. F. C. (State order as to costs.)(Signature, &c.)V/266CIVIL PROCEDURE CODE [Cap. 105No. 97FORM OF DECREE FOR DIVORCE A VINCULO M ATRIM O N IIUse the necessary parts o f the foregoing form s. The decree will b e : That the bonds of matrimony heretoforeentered into between the sa id ……………………………a n d ……………………………. be and are hereby set aside, dissolved,and annulled, and that the woman may resume her maiden name (and be restored to the rights, &c., of afeme-sole).The fo rm given under No. 95 may be adapted fo r the orders as to custody, See., o f children, alimony, costs, &c.♦No. 100FORM OF WARRANT OF ARREST BEFORE JUDGMENT(Title.)To the Fiscal o f………………………….Arrest and seize………………………………..the above-named defendant, and keep him safely, so that you have hisbody before this court forthwith to answer the above-named plaintiff in an action to recover (as the case m ay be),whereof the said plaintiff has filed his plaint in this court, unless and until the said defendant shall give you goodand sufficient security to the amount o f …………………………..rupees (or shall deposit, &c., see section 650) to appearand answer the said plaintiffs claim, and to abide by and perform the judgment of this court, or to surrenderhimself or be surrendered to be charged in execution for the sam e; and on his giving such security you are herebyauthorized to discharge the said defendant. And have here this mandate on the return day thereof.(Sig n ed ) …………………………Memorandum.—This warrant is to be executed within one calendar month from the date thereof, including theday of such date, and not afterwards.No. 101FORM OF SECURITY, & C „ TO BE GIVEN BY DEFENDANT ARRESTED BEFORE JUDGMENT(Title.)Know all men by these presents that w e…………………………..a n d …………………………… , &c. (m aking the Fiscal theobligee and proceeding according to the fo rm s Nos. 74 and 90).The condition, &c., is, that if above-bounden…………………………..do appear before th e …………………………… Court° f …………………………….o n th e ……………………………. day o f……………………………. , 1 9 ……………to appear and answerand abide by and perform the judgment, Sue. (describe claim), then this obligation, &c.No. 102FORM OF BAIL ON APPEARANCEBond, as in last preceding fo rm , m aking the Registrar o f the court obligee. The condition is to appear andanswer, Sue., in terms o f section 651.* Forms Nos. 98 and 99 are omitted as sections 645 and 646 have been repealed by Act No. 7 of 1949.V/ 267[CH. XLII.][Section 602.][Section 650.][Section 651.][Section 651.]Cap. 105] CIVIL PROCEDURE CODE[Section 651.][Section 653.][Section 654.][Section 676.][Section 677.]No. 103FORM OF WARRANT OF COMMITMENT(Title.)To the Fiscal o f…………………………. Court o f…………………………..Receive into your custody the body o f…………………………………. taken under a warrant of arrest at the suit of……………… .. and keep him safely until he give good and sufficient security in the sum o f…………………………. rupeesto abide by and perform the judgment of this court in the premises, and pay all such sum or sums of money asshall be decreed, or surrender himself or be surrendered to be charged in execution for the same.(Signed, A c.)………………………….No. 104FORM OF MANDATE OF SEQUESTRATION\(Title.)Whereas it appears th a t……………………………. is fraudulently alienating his property, &c. (set out the necessaryaverments), and the plaintiff above named has verified his demand to the satisfaction of this court; you aretherefore commanded (proceed as in No. 38, with the necessary modifications).No. 105FORM OF SECURITY TO BE GIVEN BY PLAINTIFFBond in ordinary form, the Registrar being obligee; the condition is to pay all sums o f money awarded by thecourt to defendant as costs, damages, or otherwise sustained by reason o f arrest or sequestration.No. 106FORM OF AUTHORITY TO REGISTERED ATTORNEYS TO APPLY FOR REFERENCE TO ARBITRATION(Title.)Whereas w e ………………………………(plaintiff and defendant) are desirous that (here state the particular mattersought to be referred) in the action above specified, should be referred to the final decision of the arbitrator (orarbitrators) herein below named, namely, (names):Therefore we, the said …………………………. a n d ……………………………… do hereby specially authorize our registeredattorneys, that is to say……………………………. on the part of the said plaintiff, a n d ……………………………on the part ofthe said defendant, to apply to the said court for an order of reference accordingly.Witness our hands, this, &c. …………………………… Plaintiff.Witnesses. …………………………. .. Defendant.No. 107FORM OF ORDER OF COURT REFERRING MATTER TO ARBITRATION(Title.)Upon (&c.), it is ordered, by and with the consent of all parties, that (state the matter) in difference betweenthem in this action (including all dealings and transactions between Ml parties) be referred to the finaldetermination o f……………………. ‘. . . a n d ……………………………… who are to make their award in writing and submitthe same to this court, together with all proceedings, depositions, and exhibits in this action, w ithin……………………from the date hereof. And it is further ordered, by and with the like consent, that if the said arbitrators are unableto agree upon any award in the premises within the time so fixed for the making of their award (state whether anyparticular umpire is to be appointed, or that the arbitrators are empowered to appoint an umpire, or as the casemay be; and in case an umpire is appointed, limit the time fo r his award). And it is further ordered, byV/268CIVIL PROCEDURE CODE [C a p .105and with, &c., that the said arbitrators (or umpire) shall be at liberty to examine the parties and their witnessesupon oath or affirmation which they (or he) are (is) empowered to administer, and shall have all such powers orauthorities as are vested in arbitrators (and umpires) under the Civil Procedure Code, including therein power tocall for all books of account they (or he) may consider necessary. And it is further, &c., that the costs of thisaction, together with the costs of this reference up to and including the award of the said arbitrators (or umpire),and the enforcement thereof, do abide the result of the finding of the said arbitrators (or umpire). And it is further,&c., that the said arbitrators (or umpire) be at liberty to appoint a competent accountant to assist them (or him) inthe investigation of the several matters so referred as aforesaid, and that the remuneration of such accountant andother charges attending the same be in the discretion of the said’ arbitrators (or umpire).(Signed as an order.)No. 108FORM OF ORDER OF REFERENCE ON THE ABOVE(Title.)T o …………………………. a n d ……………………………Whereas the above-named plaintiff and defendant have agreed to refer all matters in difference between them(or state the particular matter) in the above-named action to your arbitration and aw ard: You are herebyappointed arbitrators accordingly to determine all the said matters in difference between the parties, and withpower to determine which party shall pay the costs, &c. (Direct the delivery o f the award as in preceding fo r m ;give pow er to appoint an umpire in cases o f difference, specifying particular um pire i f necessary; give pow er toappoint an accountant as in preceding fo rm , and continue:) Process to compel the attendance before you of anywitnesses, or for the production of any documents which you may desire to examine or inspect, will be issued bythis court on your application, and you are empowered to administer to such witnesses oath or affirmation.Given, &c., Judge.No. 109FORM OF NOTICE TO ARBITRATORS TO APPOINT AN UMPIRE(Title.)To (arbitrators).Whereas by an order of court made in the above-named action on th e …………………………..day o f ………………………19 ………….., you were appointed arbitrators for the decision of the matters therewith referred to you, and were bythe terms of the said order of reference empowered to appoint an umpire in the event of your failing to agree uponan award within the time therein limited, and such time has elapsed and no umpire has yet been appointed by you :This is to give notice that I hereby require you to appoint an umpire forthwith.(Signed and d a ted ) …………………………. , Party Plaintiff (or Defendant).No. noFORM OF NOTICE OF FILING OF AWARD(Title.)To (parties).This is to give you notice that the arbitrators (or umpire) appointed in the above action have (has) this day filedtheir (his) award in this court.Given, &c., Judge.[Section 677.][Section 680.][Section 685.]V/269Cap. 105] CIVIL PROCEDURE CODE[Section 712.][Section 713.][Section 718.][Section 720.]No. I llFORM OF CITATION(Title.)T o ………………………….Whereas one A. B. (executor of the last will of .•……………………….. .. deceased or administrator of the estate andeffects o f ……………………………..deceased), has presented a petition to this court praying that you may be cited toattend an inquiry whether (set out shortly the substance o f the application); and whereas the said A . B. hassatisfied this court that there are reasonable grounds for such inquiry: You are hereby cited and requiredpersonally to be and appear before this court on th e …………………………. day o f ……………………………..19 ……………. at…………………….. o’clock of the forenoon, then and there to answer (set out what the subject o f the inquiry is).(Signed, See.)…………………. ………. District Judge.No. 112FORM OF ORDER TO BE ANNEXED TO, OR ENDORSED ON, THE PRECEDING(Title.)On reading and filing the petition of A . B., d a te d ……………………………. (and on reading the affidavit, &c., andhearing the evidence, &c.): It is ordered that a citation returnable on th e …………………………. day o f…………………….19 …………… a t …………………………… o’clock of the forenoon, do issue t o …………………………….. requiring him to (setout as in last form ).(Signed, & c.) …………………………… District Judge.No. 113FORM OF AFFIDAVIT OF FAILURE TO RETURN INVENTORY(Form alpart as in No. 75.)1. — (Allege residence and interest in estate.)2. —That (probate was granted of the will or letters of administration issued of the estate and effects) o f………………….. deceased, by a decree of this court dated, &c., to o n e ………………………….. .. o f………………………….3. —That more th a n …………………………..has elapsed since the said appointment, and the said…………………………..has not returned any inventory of the property and effects of the sa id ………………………………. (or any sufficientinventory, &c., specifying the defects).(Formal conclusion.)No. 114FORM OF PETITION FOR PAYMENT OF DEBT(Title.)The petition of A. B. showeth as follows1.—Your petitioner resides a t …………………………. i n ……………………………and is a creditor of the estate o f …………………………… deceased, late o f……………………………. (probate of whose will was, or letters of administration to whoseestate and effects were) duly issued to o n e ……………………………..o f ……………………………… by a decree of this courtdated t h e ……………………………day o f ……………………………., 19 . . . . : , and more than twelve months have elapsedsince such (grant or letters).V/270CIVIL PROCEDURE CODE [Cap. 1052. —That the said……………………. has tiled an inventory of the property and effects of the said…………………..3. —(Allege claims, as e .g . 🙂 On th e ………………………… day o f …………………………..,1 9 ………. , your petitioner, inan action brought by him in th e ………………………… Court o f…………………………..against the said………………………..as (execu’or or administrator) of the said…………………………., upon a debt then justly due to him from the estateof the said deceased, recovered a judgment duly given by the said court against the said…………………………as such(executor, &c.) for the sum o f………………………… rupees. And no part of the same has been paid (except…………………….. )•4. —Your petitioner is informed and believes that the said…………………………has sufficient assets in handapplicable to the payment of your petitioner’s claim (or to pay on e……………………………th thereof), and that thesame can be so applied without injuriously affecting the rights of others entitled to priority or equality of paymentwith your petitioner.5. —Your petitioner has applied to the said…………………….. for payment of his said claim, and the same hasnot been paid.Wherefore, &c., that a decree be made requiring the said ……………………………… to (render an account of hisproceedings and) pay the said claim, and that the said…………………………. be cited to show cause why he shouldnot pay the same.(Conclusion.)No. 115FORM WHERE APPLICANT IS A LEGATEEProceed as in lasl preceding form , substituting in paragraph 1: “ Legatee named in the will o f……………………. ”fo r “ creditor of the estate o f …………………………..” ; and add “ and by the said will a legacy o f…………………………….rupees was bequeathed to your petitioner. ” Omit paragraph 3. In paragraphs 4 and 5 fo r ” claim ” substitute“ legacy (or distributive share) ” ; and in the prayer make the corresponding alterations.No. 116FORM OF CITATION ON PRECEDING APPLICATIONS(Title as in No. Il l)Proceed as in No. III. The citation is “ to show cause why a decree should not be made directing you as(executor or administrator, &c.) o f ………………………….., deceased, to pay the claim o f …………………………….againstthe estate of the said deceased in the sum of rupees…………………………. ”No. 117FORM OF DECREE ON THE PRECEDING CITATION(Title.)A. B., o f ……………………………. , having presented to this court a petition dated th e ……………………………… day of……………………………. 19 . . . . , asking that a decree be made herein directing the said …………………………… (executor,&c.) to pay (state claim; and if petition was by a creditor, add statement o f issue and return o f service o f citation).And it having been proved to the satisfaction of this court by the said petition and the affidavit of, &c., that theassets of the said deceased in the hand of the said …………………………. exceed the debt (and where the petitioner is acreditor: and that the petition may be granted without injuriously affecting the rights of others entitled to priorityor equality of payment or satisfaction): It is decreed that the sa id ………………………….. , the (executor, &c.) of thesai d ………………………….. deceased, pay to the said A. B. (the full) amount of his said claim, to w it, ……………………….rupees, with interest thereon a t …………………………… per centum per annum from t h e ……………………………. day of………………………, 19 .. . , the whole amounting to rupees……………………………(Signed) District Judge.[Section 720.][Section 721.][Section 721.]V/271Cap. 105] CIVIL PROCEDURE CODE[Sections 723et seq.]No. 118FORM OF ACCOUNT TO BE FILED BY EXECUTOR OR ADMINISTRATOR(Title.)(The only difference between a voluntary account and an account ordered by the court will be that the form erwill be headed “ In the matter of the voluntary account o f…………………………. , executor (or administrator, &c.) of…………………………. deceased, ” and the latter “ In the matter of the judicial settlement of the account of ”, Sic.)To the District Court o f ………………………..I, A . B„ o f…………………………. do hereby render the following account of my proceedings as executor of thewill (or administrator, &c.) o f…………………………….. late o f…………………………… deceased (if not brought down todate, add “ to and including th e ………………………..day o f………………………….. last ”).On the . .issued to me.day of , 19 .. . (recite grant o f probate or administration) wereI subsequently caused an inventory of the property and estate of the deceased to be filed in this court, whichproperty amounts as therein set forth, by appraisement, t o …………………………. rupees.Schedule A hereto annexed contains (here enumerate the schedules. A s many schedules and in such order andrelation as will best exhibit clearly all transactions had, whatever they may be, should be annexed; such asstatement o f property sold, with prices and manner o f sale; statement o f debts collected and not collected;property unsold and perished by loss. Sic.; m oneys p aid fo r funeral and other expenses; and in referring to themshow that things done have been properly done, and give the reasons why certain things have not been done).On or about t h e …………………………… day o f……………………………. .. 19 . . . . . I caused a notice for claimants topresent their claims against the said estate (show manner o f notice and publication).Schedule………………………………..contains a statement of all the claims of creditors presented and allowed, ordisputed by me (&c.).(Go on to show that there are schedules containing statements o f paym ents to legatees, names o f personsentitled as widow, next o f kin, legatees, &c„ and fin a lly:)Schedule…………………………..hereto annexed contains a statement of all other facts affecting my administrationof the said estate, and my rights and those of others interested therein.Rs.I charge myself as follows:With amount of inventoryWith amount of increase as shown by Schedule AI credit myself as follows:With amount of loss on sales as shown by Schedule BWith debts not collected as shown b y ………………………….Leaving a balance o f…………………………. rupees to be distributed to those entitled thereto, subject to the deductionsof the amount of my compensation and the expenses of this accounting. The said schedules, which are severallysigned by me, are part of this account.(Signed, &c.)(Schedules in order, each signed.)(Affidavit as in Form No. 119.)V/ 272CIVIL PROCEDURE CODE [Cap. 105No. 118AFORM OF FINAL ACCOUNTTestamentaryDate of D eath…………………… No…………..ASSETS LIABILITIES, PAYMENTS AND DISTRIBUTIONSValuationas perInventoryReceipts andTransactionsLiabilities ” as perInventoryPaymentandDistributionsRef. toCourtOrder orTransactionVoucherorReceiptNo.ImmovablePropertyFuneral expenses and alms giving,Income Tax, Estate Duty a t . . .% Costs ofAdministration Debts due andpayable as per Inventory,Debts Paid as per ScheduleMovableProperty – – – – -No. 119FORM OF AFFIDAVIT OF ACCOUNTING PARTY(Title and fo rm a l parts, “ In the matter ”, &c., as m Form No. 118.)I, A. B., (executor, or as m ay be) o f………………………… , deceased, being (&c.), say that the charge made in theforegoing account of proceedings and schedules annexed, for moneys paid by me to creditors, legatees and next ofkin, and for necessary expenses, are correct; that I have been charged therein all the interest for moneys receivedby me and embraced in the said account, for which I am legally accountable; that the moneys stated in the saidaccount as collected were all that were collectible according to the best of my knowledge, information, and belief,on the debts stated in such account at the time of this settlement thereof; that the allowances in the said accountfor the decrease in the value of any assets and the charges therein for the increase in such value are correctlym ade; and that I do not know of any error in the said account or anything omitted therefrom which may in anywise prejudice the rights of any party interested in the said estate. And I further say that the sums under twentyrupees charged in the said account for which no vouchers or other evidences of payment are produced or for whichI may not be able to produce vouchers or other evidences of payment, have actually been paid and disbursed byme as charged, and that the said account contains to the best of my knowledge and belief a full and true statementof all my receipts and disbursements on account of the estate of the said deceased, and of all moneys and otherproperty belonging to the said estate which have come into my hands, or which have been received by any otherperson by my order or authority for my use, and that I do not know of any error or omission in the account to theprejudice of any creditor of or person interested in the estate of, the said deceased.(Formal conclusion.)No. 119 AFORM OF RECEIPT AND DISCHARGE IN FAVOUR OF EXECUTOR OR ADMINISTRATOR(Title.)We do hereby acknowledge the conveyance and delivery and/or receipt of the devises and legacies made andbequeathed severally to us under the last will (or the distributive shares due to us as heirs) (or the debts due to uSas creditors) of the deceased abovenamed, and do hereby grant a full discharge to the executor (or administrator)abovenamed in respect of the said devises and legacies (or distributive shares or debts, as the case may be ).Sgd. …………………………Respondent.Sgd. ……………………….RespondentSgd. …………………………Respondent.Witness to the identity and signature of the abovenamed…………………………….respondents.Sgd. …………………………Attorney-at-Law.[§125, 20 of1977.][Section 724A.][Section 733.][§125, 20 of1977.][Section 724B.]V/273Cap. 105] CIVIL PROCEDURE CODE[Section 726.][Section 727.][Section 729.][Section 729.]No. 120PETITION FOR JUDICIAL SETTLEMENT OF EXECUTOR’S ACCOUNT(A dopt fo rm No. 114, adding:)T h a t………………………….. has elapsed since issue of (probate, &c.), but the said (executor, &c.) has not renderedany account of his proceedings as such.No. 121FORM OF ORDER ON EXECUTOR, & C„ TO RENDER ACCOUNT( Title o f the action, “ and in the matter of the judicial settlement of the account………………………….”, &c.)A citation having been heretofore issued on the petition o f ……………………….. .. requiring…………………………. toshow cause before this court o n ……………………………, a t ………………………………. &c., why he should not render hisaccount as (executor &c.) o f ……………………………. , late o f ………………………………, deceased, and the said citationhaving been returned on that day together with proof of due service on the said …………………………..and the said………………………….. having failed to appear (or to show cause to the contrary and to present a petition that hisaccount be judicially settled : It is ordered that the s a id ………………………….render an account of his proceedings as(&c.) to this court on the (&c. at &c.), and file the same herein on or before that tim e; and that the said ………………………… personally be and appear before this court at that time and attend from time to time for the purpose ofthe said account as the court may order; and that in case of disobedience to this order an attachment may issueagainst him.(Signed, &c.) , District Judge.No. 122FORM OF EXECUTOR’S PETITION FOR A JUDICIAL SETTLEMENT(Title.)To the District Court. &c, (formal heading).1. —More than one year since (recite issue o f probate or administration to petitioner).2. —The persons interested in the estate of the said deceased as creditors, wife (husband), next of kin (legatees),or otherwise, and their places of residence, to the best of the knowledge, information, and belief of your petitioner,are as follows, to w it: (Set out. I f necessary, negative the existence o f any m o re; and where an address cannot beascertained, show that it is so).Wherefore (&c.) that his account of his proceedings as s u c h ………………………… . may be judicially settled, andthat the creditors or persons claiming to be creditors of the deceased, and the said wife (husband) next of kin(legatees), [and that said …………………………..as executor (or otherwise) of the s a id ……………………………] (and yourpetitioner’s co-executor, C. D.) be cited to attend such settlement.(Formal conclusion.)(Signed, &c.)No. 123FORM OF CITATION ON SUCH APPLICATION(A dopt No. 111. The citation is “ to attend the final judicial settlement of-the account of the proceedings of…………………………. a s ………………………….. &c., of the said deceased……………………………. ”)V/274CIVIL PROCEDURE CODE [Cap. 105No. 124FORM OF ANSWER BY PARTY CONTESTING AN ACCOUNT(Title as in fo rm o f account.)A . B., a creditor (or a legatee or otherwise) of the said …………………………… deceased, contesting th e …………………account filed b y ………………………………..executor, (or as the case m ay be) of, &c. alleges that the said account iserroneous in the following particulars:(Here set fo rth objections, e.g., th u s:)1. —That the item o f…………………………. rupees f o r ………………………….. is extravagant, &c.2. —That the item o f…………………….. rupees is without vouchers, &c. (as the case may be).3. —That the said account should be surcharged by the following items:(1) That it does not include (and so on).4. —The item o f…………………………… rupees is erroneous (and so on with regard to all the items to whichobjection is taken).Lastly.— Your contestant further reserves the right and privilege of making the foregoing objections moredefinite and certain, and of interposing other and further objections to the said account, or to any of the acts ofthe said (executor, &c.).(Signature and address o f contestant.)The day of , 19No. 125FORM OF DECREE ON FINAL SETTLEMENT OF ACCOUNT(Title, &c. “ and in the matter ”, Ac.)A. B., (executor or administrator, <&c.), o f…………………………… , late o f …………………………….., deceased havingheretofore made application to this court for a judicial settlement of his final account as s u c h …………………………..(or, where the application was made by someone else, recite accordingly), and a citation having been thereuponissued (recite terms o f citation), and the said citation having been returned and filed with proof of the due servicethereof on (names), and the said (executor) having appeared on the return day of the said citation, and the said(executor) having rendered his account under affirmation (or oath) before this court; and the said account havingbeen filed together with the vouchers in support thereof, and no objection having been made to the said account(or recite fa c t o f objections), and the said matter having been duly adjourned to this day, this court, after havingexamined the said account and vouchers, now finds the state and condition of the said account to be as stated andset forth in the following summary statement thereof made by the said court, as finally settled and adjusted by thecourt to be recorded with and taken to be a part of the decree in this matter, to w it:A summary statement of the account of A. B., (executor &c., set out) made by this court as finally and judiciallysettled and allowed.Rs.The said (executor) is chargeable as follows:With amount of inventoryWith amount of increase as per Schedule A[Section 730.][Section 740.]V/275Cap. 105] CIVIL PROCEDURE CODE[Section 757.][Section 793.]He is credited as follows:With amount of loss on sales as per Schedule B &c. &c. &c.Rs.Leaving a balance ofThe said balance consists o f:And it appearing that the said (executor) has fully accounted for all the moneys and property of the saiddeceased which have come into his hands as s u c h ………………………….. and his final account having been adjustedby the said court and a summary settlement of the same having been made as above recorded: It is hereby orderedand decreed:That the said account be and the same is hereby finally and judicially settled and allowed as filed and adjusted.And it is further ordered and decreed that out of the balance so found, as above, remaining in the hands of thesaid (executor), he retain the sum o f…………………………. rupees for the compensation to which he is entitled on thisaccount; and that he pay into the court the sum o f ………………………….rupees for the expenses of this accounting.(Other recitals and directions will have to be inserted according to circumstances.)And it appearing that after retaining the amounts above specified a balance o f …………………………….rupees willremain in the hands of the said (executor): It is therefore further ordered and decreed that the said (&c.) distributethe said remaining balance o f………………………….. rupees as follows, namely:—That he pay (&c. setting out howthe balance is to be distributed.)And it is further ordered and decreed that the said (&c.) pay the remainder of the said balance, being the sum of…………………………. rupees t o ………………………….. (the residuary legatee named in the said will).(Formal conclusion)♦No. 129FORM OF SECURITY BOND IN APPEAL(Follow the ordinary fo rm o f bond, m aking the Registrar, &c. obligee and making the condition : “ to pay allcosts which shall be incurred and taxed in prosecution of the said appeal if the said appellant shall be decreed topay the same. ”)[No. 132FORM OF SUMMONS TO PERSONS ACCUSED OF CONTEMPT OF COURTIn t h e …………………………. Court o f…………………………..Whereas your attendance is necessary to answer to a charge of contempt committed against the authority of thiscourt in that you having duly attended the same in obedience to a summons requiring you to testify on behalf ofo n e ……………………………. in (title o f case, Ac.), departed from the said court in contravention of the provisions ofsection 136 of the Civil Procedure Code (or as the case may be), as appears from (state h o w ) : You are herebyrequired to appear in person before this court on th e …………………………. day o f ………………… ,1 9 …………, a t ………………………… o’clock of the forenoon, to answer to the said charge.(Signed and d a te d ) …………………………… Judge.* Forms Nos. 126 to 128 are omitted as having ceased to be applicable to section 756, as replaced by Law No. 20of 1977.t Form No. 130 is omitted as having ceased to be applicable to section 761, as replaced by Law No. 20 of 1977.Form No. 131 is omitted as section 783 has been repealed by Ordinance No. 31 of 1909.V/276CIVIL PROCEDURE CODE [Cap. 105No. 133FORM OF WARRANT IN THE LIKE CASE( Heading as in last fo rm )T o …………………………. .. Fiscal, &c.W hereas……………………………..o f……………………………… has been summoned to attend in person before this courton th e ……………… ……… day o f………………………. …., a t ……………………………o’clock of the forenoon, to answer to acharge of contempt of the authority of this court, and this court has reason to believe that the attendance of thesaid …………………………..cannot be secured to answer such charge on the said day without the issue of a warrant inthat behalf:You are hereby directed to arrest the sa id ……………………………. and him safely keep in custody, and to producehim before this court on the s a i d …………………………..day o f…………………………… ,1 9 …………. , a t …………………………..o’clock of the forenoon accordingly.(Endorse on this warrant: If the said…………………………. shall at any time after such his arrest give you good andSufficient security either by his own bond or that of some other person in the sum o f …………………………..rupees toattend before this court on the sa id ……………………………day o f ……………………………….and to continue so to attenduntil otherwise directed by the court, he may be released.)*No. 134FORM OF CONVICTION FOR CONTEMPTIn t h e …………………………. Court, &c.A. B., being this day before this court on a charge of having committed contempt of the authority thereof in thathe on t h e ………………………….day o f…………………………… (state charge), and it appearing (after reading in evidencethe minute recorded by the court, &c., or as the case m ay be, and where the fa c t is so, and after hearing theevidence o f…………………………… , o f…………………………… ) that (state here the material fa cts o f behaviour, language,&c„ which under the circumstances am ount to contempt).The said A. B. is therefore hereby convicted of the offence of having committed contempt of the authority ofthis court,and he is sentenced therefore to undergo (state term o f imprisonment, or to pay a fine o f…………………….rupees, &c.).(Signed and dated) , Judge.SECOND SCHEDULEPart 1DISTRICT COURTSScale of costs and charges to be paid to Registered Attorneys in the District Courts as well between party andparty as between Registered Attorney and Client.Where the cause o f action, title to land or property, valueo f estate or subject-matter o f the action isConference with client and receiving instructions to sue,defend, intervene or interplead, to obtain or to opposethe grant of Letters of Administration or Letters ofGuardianship or Probate, or to take any otherproceedings provided for under this OrdinanceProxy to Registered Attorney for any of the abovepurposesLetter of DemandEvery necessary attendance on client in the progress of anaction or proceedingEvery necessary attendance on Counsel *Class lUnderRs. 1,500Class IIRs. 1,500and underRs. 5,000Class IIIRs. 5,000and underRs. 10,000Class IVRs. 10,000and underRs. 100,000. . 25 00 . . 35 00 . . 50 00 . . 65 00. . 10 00. . 20 00. . 15 00. . 25 00. . 20 00. . 30 00. . 25 00. . 40 00. . 10 00. . 10 00. . 15 00. . 1500. . 20 00. . 20 00. . 25 00. . 25 00[Section 794.][Section 797.][Section 214.][§21, 53 of1980.]* Forms Nos. 135 and 136 are omitted consequent on the repeal of sections 809 and 825 by Law No. 20 of 1977.V/277Cap. 105] CIVIL PROCEDURE CODEWhere the cause o f action, title to land or property, valueo f estate or subject-matter o f the action isEvery necessary attendance on the Judge, Registrar,Fiscal, Justice of the Peace, Commissioner for Oaths,adverse party or his Registered Attorney or Counsel orany other person in the progress of an action orproceedingEvery necessary attendance on Registrar of lands or anyother Officer of a Government Department,Corporation, Board or any other authority in theprogress of an action or proceedingDrawing plaint, answer, replicatiqn, plea or any otherpleading, petition or applicationPreparing written instructions for Counsel to draw orsettle the above and attendance therewithAttending Court and filing plaint, answer, replication, pleaor any other pleading, petition or applicationMaking and serving copy of same or translation thereoffor service,’ per folio*Making copies of documents to be filed with pleading, orfor service on parties, per folio*Drawing, summons, notice, subpoena, writ or otherprocess, order of Court, decree, or judgmentMaking copy or translation thereofAttending Registrar to get the same signedDrawing motions and other ordinary applications whennecessaryEvery necessary attendance at Court Offices and RecordRoom to make all necessary applications, to file allmotions, to peruse orders thereon and to search forreturn to summons or notice or any other processAttending Court without Counsel to support or opposeapplication or motion for judgment or any otherspecial motion or applicationAttending Court to support or oppose all necessaryordinary applications or motionsDrawing and fair-copying affidavitDrawing decrees, applications for execution, probate,Letters of Administration, interrogatories, crossinterrogatories, commissions, special case, injunction,sequestration, proclamation bonds, reference citations,inventories and accountsDrawing brief for Counsel and fair-copy, per folio*Making copy of pleadings and documents to accompanybrief, per folio*Where two or more Counsel are engaged, for drawingsecond brief ( no charges for further brief), per folio*Attending Court with Counsel on trial, if cause argued or heardAttending Court with Counsel on trial, if cause adjourned,postponed or struck offAttending Court without Counsel on trial and conducting causeAttending Court without Counsel on trial, if causeadjourned, postponed or struck offWhere judgment is deferred, attending Court to hear itAttending arbitration without Counsel, each sitting (nofees after sixth sitting)Attending arbitration with Counsel, each sitting ( no feesafter sixth sitting)Attending Commissioner to examine or cross-examinewitnesses on local examination of accounts or for anyother purpose with CounselAttending Commissioner as abve without CounselDrawing Bill of Costs and fair-copyClass I Class II Class III Class IVRs. 1,500 Rs. 5,000 Rs. 10,000Under and under and under and underRs. 1,500 Rs. 5,000 Rs. 10, 000 Rs. 100,000. . 1000 . . 15 00 20 00 . . 25 00. . 10 00 20 00 30 00 . . 40 00. . 25 00 35 00 50 00 . . 65 00. . 20 00 25 00 30 00 . . 40 00. . 10 00 . . 15 00 . . 20 00 . . 25 00. . 1 00 1 50 1 50 200. . 1 00 . . 1 50 1 50 200. . 300 4 00 6 00 . . 10 00. . 1 50 2 00 3 00 400. . 1000 . . 15 00 2000 . . 25 00. . 500 . . 10 00 15 00 . . 20 00. . 300 500 6 00 . . 10 0025 00 35 00 50 00 . . 65 00. . 25 00 35 00 50 00 . . 65 00. . 15 00 . . 20 00 30 00 . . 65 0015 00 25 00 40 00 50 00. . 1 00 1 50 1 50 200. . 1 00 1 50 1 50 200. . 1 00 1 50 1 50 200. . 50 00 70 00 . . 100 00 . . 125 00. . 30 00 50 00 80 00 . . 100 00. . 50 00 . . 100 00 . . 150 00 . . 190 00. . 30 00 50 00 80 00 . . 100 00. . 25 00 35 00 50 00 65 00. . 50 00 . . 100 00 . . 150 00 . . 190 00. . 30 00 50 00 80 00 . . 100 00. . 20 00 . . 30 00 50 00 65 00. . 40 00 50 00 70 00 90 00. . 1 50 30 00 50 00 50 00*A folio to consist of 120 words.V/278CIVIL PROCEDURE CODE [Cap. 105Where the cause o f action, title to land or property, valueo f estate or subject-matter o f the action isAttending taxationPerusing and considering papers, exhibits, or documentsfurnished or used in any action or proceeding by theadverse party or furnished by a party to his own >•Registered Attorney for the purpose of being used asevidence in any action or proceedingClass I Class II Class III Class IVRs. 1,500 Rs. 5,000 Rs. 10,000Under and under and under and underRs. 1,500 Rs. 5,000 Rs. 10,000 Rs. 100,000irrespective irrespective irrespectiveo f the o f the o f thenumber o f number o f number o fper folio* folios folios folios. . 10 00 . . 20 00 . . 30 00 . . 40 00Such sum as the Registrar shall consider fair andreasonable subject to review and appeal as providedin this Ordinance.Examining witnesses preparatory to trial or forinstructions for brief (per witness) . . 10 00 . . 20 00 . . 30 00 . . 40 00For every necessary letter vouched by letter book,rexclusive of postage 5 00 . . 10 00 . . 15 00 . . 20 00Maps, Surveys, Plans or models, when necessary, such sum as the Registrar shall deem reasonable subject toreview and appeal.Witnesses’ expenses, as the Court may determine.All necessary instructions, applications, and motions and all necessary attendance at consultations, and copiesof documents and all fees and charges not otherwise provided for (including letters) such sums as the Registrarshall deem reasonable, subject to review and appeal.In all actions involving Rs. 100,000 and over the taxable charges to be one-third (1/3) higher than in Class IV.Part 2Scale of fees to be paid to Counsel in the District Courts.1 II III IVWhere the cause o f action, title to land or property Under Rs. 1.500 Rs. 5,000 Rs. 10,000value o f estate or subject matter o f the action is Rs. 1,500 and underRs. 5,000and underRs. 10,000and overRetainer . . 30 00 . . 50 00 . . 70 00 . . 100 00Advising action, defence or appealDrawing, perusing, settling, and signing any. . 30 00 . . 50 00 . . 70 00 . . 100 00pleading application or petition . . 50 00 . . 70 00 . . 100 00 . . 200 00 to. . 300 00Drawing, perusing and settling special caseDrawing, perusing, and settling interrogatories,. . 50 00 . . 70 00 . . 100 00 . . 200 00decree, etc. . . 50 00 . . 70 00 . . 100 00 . . 150 00Consultation feeSupporting or opposing any special motion or. . 50 00 . . 70 00 . . 100 00 . . 200 00application . . 50 00 . . 70 00 . . 100 00 . . 200 00Brief fee on trial or argument . . 100 00 . . 150 00 . . 200 00 . . 300 00 to1,000 00Brief fee where trial or argument is resumed . . 50 00 . . 100 00 . . 150 00 . . 200 00 to700 00N. B. (1) The fee of a Junior Counsel will not be allowed where-two Counsel are engaged in Classes I and II.(2) No fees will be allowed for a third Counsel in any class.(3) The brief fee of a Junior Counsel, where two Counsel are engaged will be half of the Senior Counsel’sbrief fee.The Registrar may allow any charges or fees as he shall deem reasonable (not otherwise provided for) on specialapplication being made to him, subject to review and appeal as provided in this Ordinance.* A folio to consist of 120 words.V/279Cap. 105] CIVIL PROCEDURE CODEPart 3COURT OF APPEALIn AppealCounsel’s feesAppeals where value of action is Rs. 1,500/- or under—Brief fee on argument Rs. 100 00Appeals where value of action is over Rs. 1,500/-Retainer Rs. 100 00Consultation fee Rs. 100 00 to 300 00Making or opposing any special motion Rs. 100 00 to 300 00Brief fee Rs. 200 00 to 2,000 00Drawing, perusing, settling and signing any application orpetition Rs. 100 00 to 300 00Registered Attorney’s Fees as well between party and party as between Registered Attorney and client.Class I Class II Class III Class IVRs. 1,500 Rs. 5,000 Rs. 10,000 Rs. 100,000and under and under and under and underProxyInstructing Counsel to make or oppose any specialmotion, or for advice on appellant’s or. . 750 . . 1000 . 15 00 . . 20 00respondent’s caseDrawing brief for Counsel or any bond, affidavit,. . 50 00 . . 75 00 . 100 00 . . 125 00petition or application and fair-copy, per folio*Close copy of pleading, evidence and documents to. . 2 50 . . 500 500 700accompany brief, per folio* . . 125 . . 1 25 1 25 150Attending Court . . 50 00 . . 75 00 . 100 00 . . 125 00Every necessary attendance on Registrar . . 25 00 . . 25 00 . 25 00 . . 35 00Drawing of Bill of Costs . . 22 50 . . 22 50 . 22 50 . . 30 00Servicing copy with notice of taxation . . 7 50 . . 7 50 7 50 . . 10 00Note 1. In all actions involving over Rs. 100,000/-Class IV.the taxable charges to be one third (1/3) higher than inNote 2. The Registrar may allow any charges or fees not specially provided for, as he shall deem reasonable onspecial application being made, subject to an appeal to the Court.*A folio to consist of 120 words.V/280