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Sunday, October 31, 2010

MISCELLANEOUS PART XI

132. Exemption of certain women from personal appearance.—(1) Women who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court.

(2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in. any case in which the arrest of women is not prohibited by this Code.

133. Exemption of other persons.—1[(1) The following persons shall be entitled to exemption from personal appearance in Court, namely.—

(i) The President of India;

(ii) The Vice-President of India;

(iii) The Speaker of the House of the People,

(iv) The Ministers of the Union;

(v) The Judges of the Supreme Court;

(vi) The Governors of States and the administrators of Union Territories;

(vii) The Speakers of the State Legislative Assemblies;

(viii) The Chairman of the State Legislative Councils;

(ix) The Ministers of States;

(x) The Judges of the High Courts; and

(xi) The persons to whom Section 87B applies.]

2[***]

(3) Where any person 3[***] claims the privilege of such exemption, and it is consequently necessary to examine him by commission, he shall pay the costs of that commission, unless the party requiring his evidence pays such costs.

1. Substituted by Act No. 66 of 1956, for former sub-section (1).

2. Sub-section (2) omitted by Act No. 66 of 1966.

3. The words “so exempted” omitted by Act No. 66 of 1966.

134. Arrest other than in execution of decree.— The provisions of Sections 55, 57 and 59 shall apply, so far as may be, to all persons arrested under this Code.

135. Exemption from arrest under civil process.—(1) No Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from, his Court.

(2) Where any matter is pending before a tribunal having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their pleaders, mukhtars, revenue-agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of Court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal.

(3) Nothing in sub-section (2) shall enable a judgment-debtor to claim exemption from arrest under an order for immediate execution or where such judgment-debtor attends to show cause why he should not be committed to prison in execution of a decree.

1[135A. Exemption of members of legislative bodies from arrest and detention under civil process.—2[(1) No person shall be liable to arrest or detention in prison under civil process-

(a) If he is a member of-

(i) Either House of Parliament, or

(ii) The Legislative Assembly or Legislative Council of a State, or

(iii) A Legislative Assembly of a Union territory,

Daring the continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council;

(b) If he is a, member of any, committee of-

(i) Either House of Parliament, or

(ii) The Legislative Assembly of a State or Union territory, or

(iii) The Legislative Council of a State,

During the continuance of any meeting of such committee;

(c) If he is a member of-

(i) Either House of Parliament, or

(ii) A Legislative Assembly or Legislative Council of a State having both such Houses,

During the continuance of a joint sitting, meeting, conference or joint committee of the Houses of Parliament or Houses of the State Legislature, as the case may be,

And during the forty days before and after such meeting, sitting or conference.]

(2) A person released from detention under sub-section (1) shall, subject to the provisions, of the said sub-section, be liable to re-arrest and to the further detention to which he would have been liable if he had not been released under the provisions of sub-section (1).]

1. Inserted by Act No. 23 of 1925.

2. Substituted by Act No. 104 of 1976, for sub-section (1), w.e.f. 1st February, 1977.

136. Procedure where person to he arrested or property to be attached is outside district.—

(1) Where an application is made that any person shall arrested or that any property shall be attached under any provision of this Code not relating to the execution of decrees, and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made, the Court may, in its discretion, issue a warrant of arrest or make an order of attachment, and send to the District Court within the local limits of whose jurisdiction such person or property resides or is situate a copy of the warrant or order, together with the probable amount of the costs of the arrest or attachment.

(2) The District Court shall, on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by a Court subordinate to itself, and shall inform the Court which issued or made such warrant or order of the arrest or attachment.

(3) The Court making an arrest under this Section shall send the person arrested to the Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former Court why he should not be sent to the later Court, or unless he furnishes sufficient security for his appearance before the later Court or for satisfying any decree that may be passed against him by that Court, in either of which cases the Court making the arrest shall release him.

(4) Where a person to be arrested or movable property to be attached under this Section is within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Fort William in Bengal or at Madras or at Bombay, 1[***] the copy of the warrant of arrest or of the order of attachment, and the probable amount of the costs of the arrest or attachment, shall be sent to the Court of Small Causes of Calcutta, Madras 2[or Bombay], as the case may be, and that Court, on -receipt of the copy and amount, shall proceed as if it were the District Court.

1. The words “or of the Chief Court of Lower Burma,” omitted by the A.O. 1937.

2. Substituted by the A.O. 1937, for the words “Bombay or Rangoon”.

137. Language of subordinates Courts.—(1) The language which, on the commencement of this Code, is the language of any Court subordinate to a High Court shall continue to be the language of such subordinate Court until the State Government otherwise directs.

(2) The State Government may declare what shall be the language of any such Court and in what character applications to and proceedings in such Courts shall be written.

(3) Where this Court requires or allows anything other than the recording of evidence to be done in writing in any such Court, such writing may be in English; but if any party or his pleader is unacquainted with English a translation into the language of the Court shall, at his request, be supplied to him; and the Court shall make such order as it thinks fit in respect of the payment of the costs of such translation.

1138. Power of High Court to require evidence to be recorded in English.—(1) The 2[High Court] may, by notification in the Official Gazette, direct with respect to any Judge specified in the notification, or failing under a description set forth therein, that evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in manner prescribed.

(2) Where a Judge is prevented by any sufficient reason from complying with a direction under sub-section (1), he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court.

1. For Section 138, as applicable to Assam, see the Civil Procedure (Assam Amendment) Act, 1941 (Assam 1 of 1941), Section 2.

2. Substituted by Act No. 4 of 1914 for the letters “L.G.”.

139. Oath on affidavit by whom to be administered.—In the case of any affidavit under this Code-

(a) Any Court or Magistrate, or

1[(aa) Any notary appointed under the Notaries Act, 1952; or]

(b) Any officer or other person whom a High Court may appoint in this behalf, or

(c) Any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf,

May administer the oath to the deponent.

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

140. Assessors in causes of salvage etc.—(1) In any admiralty or vice-admiralty cause of salvage, towage or collision, the Court, whether it be exercising its original or its appellate jurisdiction, may, if it thinks fit, and shall upon request of either party to such cause, summon to its assistance, in such manner as it may direct or as may be prescribed, two competent assessors; and such assessors shall attend and assist accordingly.

(2) Every such assessor shall receive such fees for his attendance, to be paid by such of the parties as the Court may direct or as may be prescribed.

141. Miscellaneous proceedings.— The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

1[Explanation.—In this Section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.]

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

142. Orders and notices to be in writing.— All orders and notices served on or given to any person under the provisions of this Code shall be in writing.

143. Postage.—Postage, where chargeable on a notice, summons or letter issued under this Code and forwarded by post, and the fee for registering the same, shall be paid within a time to be fixed before the communication is made:

Provided that the State Government 1[* * *] may remit such postage, or fee, or both, or may prescribe a scale of Court-fees to be levied in lieu thereof.

1. The words “with the previous sanction of the G.G. in C.” omitted by Act No. 38 of 1920.

144. Application for restitution.—(1) Where and in so far as a decree 1[or an order] is 2[varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose the Court which passed the decree or order] shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree 1 [or order] or 2[such part thereof as has been varied, reversed, set aside or modified]; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly 2[consequential on such variation, reversal, setting aside or modification of the decree or order.]

3[Explanation.— For the purposes of sub-section (1) the expression “Court which passed the decree or order” shall be deemed to include.—

(a) Where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;

(b) Where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order;

(c) Where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute, it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this Section, would have jurisdiction to try such suit.]

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief, which could be obtained by application under sub-section (1).

1. Inserted by Act No. 66 of 1956.

2. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

3. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

145. Enforcement of liability of surety.—Where any person 1[has furnished security or given a guarantee]:

(a) For the performance of any decree or any part thereof, or

(b) For the restitution of any property taken in execution of a decree, or

(c) For the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon,

1[the decree or order may be executed in the manner therein provided for the execution of decrees, namely: -

(i) If he has rendered himself personally liable, against him to that extent;

(ii) If he has furnished any property as security, by sale of such property to the extent of the security;

(iii) If the case falls both under clauses (i) and (ii) then to the extent specified in those clauses,

And such person shall, be deemed to be a party within the meaning of Section 47 :]

Provided that such notice as the Court in each case thinks sufficient has been given to the surety.

1. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

146. Proceedings by or against representatives.— Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him.

147. Consent or agreement by persons under disability.— In all suits to which any person under disability is a party, any consent or agreement, as to any proceeding shall, if given or made with the: express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if such person, were under no disability and had given such consent or made such agreement.

148. Enlargement of time.— Where any period is fixed or granted by the Court for the doing of any Act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, 1[not exceeding thirty days in total] even though the period originally fixed or granted may have expired. -----2010 S.A.R. CIVIL 827 ;

2[148A. Right to lodge a caveat.—(1) Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made, under sub-section (1).

(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.

(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.

(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.]

1. Inserted by Act No. 46 of 1999, Section 13 (w.e.f. 1-7-2002).

2. Inserted by Act No. 104 of 1976, w.e.f. 1st May, 1977.

149. Power to make up deficiency of Court-fees.— Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.

150. Transfer of business.— Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.

151. Saying of inherent powers of Court.— Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

COMMENTS

Every Court/ tribunal has inherent jurisdiction to set aside the order/ judgment where it is convinced that the order passed was wrangled through fraud or misrepresentation as would affect the very basis of the claim. (United India Insurance Co. Ltd v. Rajinder Singh, AIR 2000 SC 1165(1168).

152. Amendment of judgments, decrees or orders.— Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

153. General power to amend.—The Court may at any time and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit ; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

1[153A. Power to amend decree or order where appeal is summarily dismissed.— Where an Appellate Court dismisses an appeal under Rule 11 of Order XLI, the power of the Court to amend, under Section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

153B. Place of trial to be deemed to be open Court.—The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them:

Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally, or any particular person shall not have access to, or be or remain in, the room or building used by the Court.]

[154. Saving of present right of appeal; Repealed by the Repealing and Amending Act, 1952]

[155. Amendment of certain Acts Repealed by the Repealing and Amending Act, 1952]

[156. Repeals: Repealed by the Second Repealing and Amending Act, 1914]

157. Continuance of orders under repealed enactments.— Notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under Act 8 of 1859 or under any Code of Civil Procedure or any Act amending the same or under any other enactment hereby repealed shall, so far as they are consistent with this Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under this Code and by the authority empowered thereby in such behalf.

158. Reference to Code of Civil Procedure and other repealed enactments.— In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or Section of Act 8 of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, Section or Rule.

PART IX

SPECIAL PROVISIONS RELATING TO THE 1[HIGH COURTS 2[NOT BEING THE COURT OF A JUDICIAL COMMISSIONER]]

1. Substituted by Act No. 2 of 1951, for the words “CHARTERED HIGH COURTS”.

2. Substituted by the Adaptation of Laws (No. 2) Order, 1956, for the words “FOR PART A STATES AND PART B STATES”.

116. Part to apply only to certain High Courts.This Part applies only to High Courts 1[not being the Court of a Judicial Commissioner].

1. Substituted by the Adaptation of Laws (No. 2) Order, 1956, for the words “FOR PART A STATES AND PART B STATES”.

117. Application of Code to High Courts.—Save as provided in this Part or in Part X or in rules, the provisions of this Court shall apply to such High Courts.

118. Execution of decree before ascertainment of costs.—Where any such High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the stilt can be ascertained by taxation, the Court may order that the decree shall be executed forthwith except as to so much thereof as relates to the costs;

And, as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.

119. Unauthorized persons not to address Court.— Nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys.

120. Provisions not applicable to High Court in original civil jurisdiction.— (1) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, Sections 16, 17 and 20.

1[***]

1. Sub-section (2) repealed by Act No. 3 of 1909.

PART X

RULES

121. Effect of rules in First Schedule.— The rules in a First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.

122. Power of certain High Courts to make rules.— 1 [High Courts 2[not being the Court of a Judicial Commissioner]] 3[***] may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.

1. Substituted by the A.O. 1950, for the words and figures “Courts which are High Courts for the purposes of the Government of India Act, 1935”.

2. Substituted by the Adaptation of Laws (No. 2) Order, 1956, for the words “for Part A States and Part B States”.

3. The words “and the Chief Court of Lower Burma”, repealed by Act No. 11 of 1923.

123. Constitution of Rule Committees in certain States.— (1) A Committee to be called the Rule Committee, shall be constituted at 1[the town which is the usual place of sitting of each of the High Courts 2[***] referred to in Section 122].

(2) Each such Committee shall consist of the following persons, namely.—

(a) Three Judges of the High Court established at the town at which such Committee is constituted, of whom at least has served as a District Judge or 3[***] a Divisional Judge for three years,

4[(b) Two legal practitioners enrolled in that Court.]

5[(c) A Judge of a Civil Court subordinate to the High Court, 6[***]

7[***]

(3) The members of each such Committee shall be appointed by the 8[High Court], which shall also nominate one of their number to be President:

9[***]

(4) Each member of any such Committee shall hold office for such period as may be prescribed by the 8[High Court] in this behalf; and whenever any member retires, resigns, dies or ceases to reside in the State in which the Committee was constituted, or becomes incapable of acting as a member of the Committee, the said 10[High Court] may appoint another person to be a member in his stead.

(5) There shall be a secretary to each such Committee who shall be appointed by the 10[High Court] and shall receive such remuneration as may be provided in this behalf 11[by the State Government].

1. Substituted by Act No. 13 of 1916 for the words “each of the towns of Calcutta, Madras, Bombay, Allahabad, Lahore and Rangoon”.

2. The words “and of the Chief Court” omitted by the Act No. 11 of 1923.

3. The brackets and words “(in Burma)” repealed by Act No. 11 of 1923.

4. Substituted by Act No. 2 of 1951, for the original clauses (b) and (c).

5. Clause (d) re-lettered as (c) by Act No. 2 of 1951.

6. The word “and” omitted by Act No. 38 of 1978.

7. Clause (d) omitted by Act No. 38 of 1978.

8. Substituted by Act No. 104 of 1976, for the words “Chief Justice or Chief Judge”, w.e.f. 1st February, 1977.

9. Proviso omitted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

10. Substituted by Act No. 104 of 1976, for the words “Chief Justice or Chief Judge”, w.e.f. 1st February, 1977.

11. Substituted by the A.O. 1937, for the words “by the G.G. in C. or by the L.G., as the case may be”.

124. Committee to report to High Court.— Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul, alter or add to the rules in the First Schedule or to make new rules, and before making any rules under Section 122 the High Court shall take such report into consideration.

125. Power of other High Courts to make rules.— High Courts, other than the Courts specified in Section 122, may exercise the powers conferred by that Section in such manner and subject to such conditions 1as 2[the State Government] may determine]:

Provided that any such High Court may, after previous publication, make a Rule extending within the local limits of its jurisdiction any rules, which have been made by any other High Court.

1. Substituted by Act No. 38 of 1920, for the words “as the G.G. in C. may determine”.

2. Substituted by the A.O. 1937, for the words “in the case of the Court of the Judicial Commissioner of Coorg, the G.G. in C., and in other cases the L.G.”.

1[126. Rules to be subject to approval.—Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the State in which the Court whose procedure the rules regulate is situate or, if that Court is not situate in any State, to the previous approval of 2[Central Government].]

1. Substituted by the A.O. 1937, for the former Section.

2. Substituted by the A.O. 1950, for the words “Governor General”.

127. Publication of rules.— Rules so made and 1[approved] shall be published in the 2[Official Gazette], and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule.

1. Substituted by Act No. 24 of 1917, for the words “sanctioned”.

2. Substituted by the A.O. 1937, for the words “GOI or in the local official Gazette, as the case may be”.

128. Matters for which rules may provide.—(1) Such rules shall be not inconsistent with the provisions. in the body of this Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts.

(2) In particular, and without prejudice to the generality of the powers conferred by sub-section (1), such rules may provide for all or any of the following matters, namely: -

(a) The service of summonses, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service;

(b) The maintenance and custody, while under attachment, of live-stock and other movable property, the fees payable for such maintenance and custody, the sale of such live-stock and property, and the proceeds of such sale;

(c) Procedure in suits by way of counterclaim, and the valuation of such suits for the purposes of jurisdiction;

(d) Procedure in garnishee and charging orders either in addition to, or in substitution for, the attachment and sale of debts;

(e) Procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not;

(f) Summary procedure-

(i) In suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising-

On a contract express or implied; or

On an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

On a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only; or

On a trust; or

(ii) In suits for the recovery of immovable property, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant;

(g) Procedure by way of originating summons;

(h) Consolidation of suits, appeals and other proceedings;

(i) Delegation to any Registrar, Prothonotary or Master or other official of the Court of any judicial, quasi-judicial and non-judicial duties; and

(j) All forms, registers, books, entries and accounts, which may be necessary or desirable for the transaction of the business of Civil Courts.

129. Power of High Courts to make rules as to their original Civil procedure.— Notwithstanding anything in this Code, any High Court 1[not being the Court of a Judicial Commissioner] may make such rules not inconsistent with the Letters Patent 2[or order] 3[or other law] establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.

1. Substituted by the Adaptation of Laws (No. 2) Order, 1956, for the words “for a Part A State or a Part B State “.

2. Inserted by the A.O. 1950.

3. Inserted by Act No. 2 of 1951.

5[130. Powers of other High Courts to make rules as to matters other than procedure.— A High Court 1[not being a High Court to which Section 129 applies] may, with the previous approval of the State Government, make with respect to any matter other than procedure any Rule which a High Court 2[for a 3[***] State] might under 4[article 227 of the Constitution] make with respect to any such matter for any part of the territories under its jurisdiction which is not included within the limits of a presidency town.]

1. Substituted by the A.O. 1950, for the words “not construed by His Majesty by Letters Patent”.

2. Substituted by the A.O. 1951 for the words “so constituted”.

3. The word and letter “Part A” omitted by the Adaptation of laws (No. 2) Order, 1956.

4. Substituted by the A.O. 1950, for the words and figures “Section 224 of the Government of India Act, 1935”.

5. Substituted by the A.O. 1937, for the former Section.

131. Publication of rules.— Rules made in accordance with Section 129 or Section 130 shall be published in the 1[Official Gazette] and shall from the date of publication or from such other date as may be specified have the force of law.

1. Substituted by the A.O. 1937, for the words “GOI or in the local official Gazette, as the case may be”.

PART VII

APPEALS

APPEALS FROM ORIGINAL DECREES

96. Appeal from original decree.—(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

1[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed 2[ten thousand rupees].]

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Substituted by Act No. 46 of 1999, sec 6 for "three thousand rupees" (w.e.f. 1-7-2002).

97. Appeal from final decree when no appeal from preliminary decree.— Where any party aggrieved by a preliminary decree after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal, which may be preferred from the final decree.

98. Decision where appeal beard by two or more Judges.—(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:

Provided that where the Bench hearing the appeal is 1[composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it.

2[(3) Nothing in this Section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.]

1. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Inserted by Act No. 18 of 1928.

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.— No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder 1[or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:

1[Provided that nothing in this Section shall apply to non-joinder of a necessary party.]

1. Inserted by Act No. 104 of 1976, w.e.f 1st February, 1977.

1[99A. No order under Section 47 to be reversed or modified unless decision of the case is prejudicially affected.— Without prejudice to the generality of the provisions of Section 99, no order under Section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.]

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

APPEALS FRONT APPELLATE DECREES

1[100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this Section from an appellate decree passed ex parte.

(3) In an appeal under this Section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]

COMMENTS

In second appeal- finding of fact- interference is permissible only in exceptional cases. (Ishawar Dass Jain v. Sohan Lal, AIR 2000 SC 426(429).

Substantial question of law. - Unless the substantial questions of law have been framed in second appeal, the judgment of the first appellate Court cannot be se t aside. (Ishawar Dass Jain v. Sohan Lal, AIR 2000 SC 426(429).

Substantial question of law- Substantial question of law arises where the first appellate Court has considered the inadmissible evidence or relevant/ material evidence has not been considered. - In either case the finding of the first appellate Court can be disturbed. (Ishawar Dass Jain v. Sohan Lal, AIR 2000 SC 426(429). SECOND APPEAL WITHOUT SHOWING THE METHOD OF ASSESSMENT OF DAMAGES, THE DAMAGES SUIT CAN BE DECREED?. NO.—2010[5] ALT 364. CAN THE COURT INTERFER WITH THE FACTS FINDING OF LOWER COURT IN SECOND APPEAL?, YES –IF THE FINDINGS OF LOWER COURT ARE PERVERSE.—2010[5] ALT S.C. 4.

1. Substituted by Act No. 104 of 1976, for the former Section 100, w.e.f. 1st February, 1977.

2[100A. No further appeal in certain cases.— Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further, appeal shall lie from the judgment and decree of such single Judge.]

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Sec 100A was substituted by Act No.46 of 1999, Sec 10 and further has been substituted by Act 22 of 2002, sec.4 (w.e.f. 1-7-2002).

101. Second appeal on no other grounds.— No second appeal shall lie except on the ground mentioned in Section 100.

1[102. No Second appeal in certain suits.No second appeal shall lie from any decree. When the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.]

1. Sec 102 was substituted by Act No. 46 of 1999, Sec 11 and now further substituted by Act 22 of 2002, Sec. 5 (w.e.f. 1-7-2002).

1[103. Power of High Court to determine issues of fact.— In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

(b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.]

1. Substituted by Act No. 104 of 1976, for former Section 103, w.e.f. 1st February, 1977.

APPEALS FROM ORDERS

104. Orders from which appeal lies.—(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-

1[***]

2[(ff) An order under Section 35A;]

3[(ffa) An order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;]

(g) An order under Section 95;

(h) An order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) Any order made under rules from which an appeal is expressly allowed by rules:

2[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]

(2) No appeal shall lie from any order passed in appeal under this Section.

1. Clauses (a) to (f) omitted by Act No. 10 of 1940.

2. Inserted by Act No. 9 of 1922.

3. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

105. Other orders.—(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand 1[***] from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

1. Omitted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

106. What Courts to hear appeals.— Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

GENERAL PROVISIONS RELATING TO APPEALS

107. Powers of Appellate Court.—(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-

(a) To determine a case finally;

(b) To remand a case;

(c) To frame issues and refer them for trial;

(d) To take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

108. Procedure in appeals from appellate decrees and orders.— The provisions of this Part relating to appeals from original decree shall, so far as may be, apply to appeals-

(a) From appellate decrees, and

(b) From orders made under this Code or under any special or local law in which a different procedure is not provided.

APPEALS TO THE SUPREME COURT

1[109. When appeals lie to the Supreme Court.— Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies-

(i) That the case involves a substantial question of law of general importance; and

(ii) That in the opinion of the High Court the said question needs to be decided by the Supreme Court.

1. Substituted by Act No. 49 of 1973, for earlier Section 109.

110. Value of subject-matters.-[Omitted by the Code of Civil Procedure (Amendment) Act, 1973 (45 of 1973).]

111. Bar of certain appeals.-[Repealed by the A.O. 1950].

111A. Appeals to Federal Court: Repealed by the Federal Court Act, 1941 (21 of 1941), Section 2.]

112. Savings.—1[(1) Nothing contained in this Code shall be deemed-

(a) To affect the powers of the Supreme Court under article 136 or any other provision of the Constitution, or

(b) To interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.]

(2) Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction or to appeals from orders and decrees of Prize Courts.

1. Substituted by the A.O. 1950, for the former sub-section (1).

PART VIII

REFERENCE, REVIEW AND REVISION

113. Reference to High Court.— Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:

1[Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.

Explanation.—In this Section, “Regulation” means any Regulation of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897, (10 of 1897) or in the General Clauses Act of a State.]

1. Inserted by Act No. 24 of 1951.

114. Review.— Subject as aforesaid, any person considering himself aggrieved-

(a) By a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.

(b) By a decree or order from which no appeal is allowed by this Court, or

(c) By a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

115. Revision.1[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears -

(a) To have exercised a jurisdiction not vested in it by law, or

(b) To have failed to exercise a jurisdiction so vested, or

(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity,

The High Court may make such order in the case as it thinks fit:

2[Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding,]

3[(2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

4[(3) A revision shall not oprate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the high court.]

Explanation.—In this Section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]

1. Section 115 re-numbered as sub-section (1) thereof by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Substituted by Act No. 46 of 1999, Sec 12 (w.e.f. 1-7-2002).

3. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

4. Inserted by Act No.46 of 1999, sec 12 (w.e.f. 1-7-2002).