XXVIII—civil Procedure

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partXXVIII—c iv ilprocedure.THE CODE OF CIVIL PROCEDURE.CONTENTS.P r elim ina ry .Sections.1.*** '*2. Definitions.3. Subordination of Courts.4. Savings.5. Application of the Code to revenue Courts.6. Pecuniary jurisdiction.7. Courts under the Buima Small Cause Courts Act.8.* **PART I.SUITS IN GENERAL.J u r is d ic t io n9. f theC ourtsa n d Res ju d ica ta .Courts to try all civil suits unless barred.Stay of suit.Res judicata.Bar to further suit- 1When foreign judgment not conclusive.Presumption as to foreign judgments.P laceofS u in g .15. Court in which suits to be instituted.16. Suits to be instituted where subject-m atter situate.17. Suits for immoveable property situate within jurisdiction of differentCourts.18. Place of institution of suit where local lim its of jurisdiction ofCourts are uncertain.

2C ivil Procedure-Sections.19. Suits for compensation for wrongs to person or moveables.20- Other suits to be instituted where defendants reside or cause of actionarises.21. Objections to jurisdiction.22. Power to transfer suits which may be instituted in more Jian oneCourt.23. To what Court application lies.24. General power of transfer and withdrawal.25.****I n s t it u t io nofS u it s .26. Institution of suits.Summons27. is c o v e r y .Summons to defendants.****Service of foreign summonsesPower to order discovery and the like.Summons to witnfess.Penalty for default.J udgm entandD ecree-33. Judgment and decree.In terest.34- InterestC o sts.35. Costs.35A- Compensatory costs in respect of false or vexatious claims ordefences.PART II.EXECUTION.G eneral.36. Application to orders.37. Definition of Court which passed a decree.

3C ivil Procedure-C ourtsby w h ic h d e c r e e s m a y b e e x e c u t e d .Sections. by which decree may be executed.Transfer of decree.****Result of execution proceedings to be certified.Powers of Court in executing transferred decree.Execution of decrees passed by Courts in places to which thisPart does not extend44.****44A. Execution of decrees passed by Courts in the United Kingdom andother reciprocating territory.45.** .**46- Precepts.Q u e s t io n st o b e d e t e r m in e d b yC ourte x e c u t in g d e c r e e .47. Questions to be determ ined by the C ourt executing decree.L im ito f t im e f o r e x e c u t io n .48- Execution barred in c#rtain cases.T ra n sferees49. Transferee.50. Legal representative.a n d l e g a l r e p r e s e n t a t iv e s .P rocedure51.52.53.54-in e x e c u t io n .Powers of Court to enforce execution.Enforcement of decree against legal representative.Liability of ancestral property.Partition of estate or separation of share.A rresta n d d e t e n t io n .55. Arrest and detention.56. Prohibition of arrest or detention of women in execution of decreefor money.57. Subsistence allowance.58. Detention and release.59. Release on ground of illness.A ttachm ent.60. Property liable to attachm ent and sale in execution of decree.61. Partial exemption of agricultural produce.62. Seizure of property in dwelling-house.

Civil4Procedure.Sections.63. Property attached in execution of decrees of several Couits.64. Private alienation of property after attachm ent to be void.Sale.65. Purchaser’s title.66. Suit against purchaser not m aintainable on ground of purchasebeing on behalf of plaintiff.67. Power for President to make rules as to sales of land in executionof decrees for payment of money.D e l e g a t io ntoC ollectoro f p o w e r t o e x e c u t e d e c r e e s a g a in s tim m o v e a b l e PROPERTY.68. Power to prescribe rules for transferring to Collector execution ofcertain decrees.69. Provisions of T hird Schedule to apply.70. Rules of procedure.Jurisdiction of civil Courts barred.71. Collector deemed to be acting judicially.72. Where Court may authorize Collector to stay public sale of land.D is t r ib u t io nof a ssets.73. Proceeds of execution-sale to be rateably distributed among decreeholders.R esist a n c eto e x e c u tio n .74. Resistance to execution.PART III.INCIDENTAL PROCEEDINGS.C o m m is s io n s .75. Power of C ourt to issue commissions.76.****77. Letter of request.78. Commissions issued by foreign Courts.PART IV.SUITS IN PARTICULAR CASES.S u it sby or a g a in st theG overnm entor P u b l icc a p a c it y .79. Suits by or against the Government.80. Notice.O ff ic e r sin t h e ir o ffic ia l

Civil Procedure .5Sections.81.Exemption from arrest and personal appearance.82. Execution of decree.S u it s83.84.8586.87.byA l ie n sa n d by or a g a in stF o r e ig nandN a tiv e R u l e r s .When aliens may sue.When foreign States may sue,.Persons specially appointed by Government to prosecute or defendfo r Chiefs.Suits against Chiefs, ambassadors ?nd envoys. ***I n t e r pl e a d e r .88.Where interpleader suit may be instituted.PART V .SPECIAL PROCEEDINGS.A r bit r a tio n .89.****S pecial C ase 90.Power to state case for opinion o f Court.S u it s91.92.93.relating toP u b l ic M a t t e r s .Public nuisances.Public charities.Exercise o f powers o f Attorney-General by Collector, etc.PART V I.SUPPLEM ENTAL PROCEEDINGS.94.95.Supplemental proceedings.Compensation fo r obtaining arrest, attachment or injunctioninsufficient grounds.onPART V II.APPEALSA p p eals from O rig in a l D e c re e s. from original decree.Appeal from final decree where no appeal' from prelim inary decree.Decision where appeal heard by two or more Judges.No decree to be reversed or modified fo r error or irregularity notaffecting merits or jurisdiction.

6Civil ProcedureA ppealsfr o mA ppella te D e c r ee s .Sections. appeal.Second appeal on no other grounds.No second appeal in certain suits.Power of High Court to determine issues o f fact.A pp e a l s104.105.106.fromOrders from which appeal lies.Other orders.W liat Courts to hear appeals.G eneral P r o v isio n s107.108.relating toA ppeals.Powers o f appellate Court.Procedure in appeals from appellate decrees and orders.A ppeals109.110.111.112.O rders.to t h eS u prem e C o u r t .When appeals lie to Supreme CourtValue o f subject-matter.Bar of certain appeals.Savings.PART V III.REFERENCE, REVIEW A N p REVISION.113.114.115.Reference to High Court.Review.Revision.PART IX .SPECIAL PROVISIONS R E LA TIN G TO THEH IG H COURT.***(*Application o f Code to the High Court.Execution o f decree before ascertainment o f costs.Unauthorized persons not to address Court.Provisions not applicable to High Court in original c iv il jurisdiction.

C iv il Procedure.7PART 29.130.131.Effect of rules in First Schedule.Power of High Court to make rules.Constitution of Rule Committee.Committee to report to High Court.****Rules to be subject to approval.Publication of rules.M atters for which rules may provide.Power of High Court to make rules as to its original civil procedar?.****Publication of rules.PART X I.MISCELLANEOUS.132. Exemption of certain women from personal appearance.133. Exemption of other persons.134. Arrest other than in execution of decree.135. Exemption from arrest under civil process.135A. Exemption of members of legislative bodies from arrest and detentionunder civil process.136. Procedure where person to be arrested or property to be attached is. outside district.137. Language of subordinate Courts.138.****139. Oath on affidavit by whom to be adm inistered.140. Assessors in causes of salvage, etc,141. M iscellaneous proceedings.142. Orders and notices to be in writing.143. Postage.144. Application for restitution.145. Enforcement of liability of surety.146. Proceedings by or against representatives.147i Consent or agreement by persons under disability.148. Enlargement of time.149. Power to make up deficiency of court-fees.150. Transfer of business.151. Saving of inherent powers of Court.152* Amendment of judgments, decrees or orders*153. General power, to amend.

Civil Procedure .8SCHEDULES.T heTheThef ir s tS C H E D U L E .— R u l e s o f P ro c ed ur e .A pp e n d ix a — P l e a d in g s .A p p en d ix B.— P r o c e s s .A p p e n d ix c . — D isc o v e r y , I n spe c t io n a n d A d m is s io n .A p p e n d ix D .— D e c r e e s .A p p e n d ix E.—E x e c u tio n .A p p e n d ix F .— S u p p l e m e n t a l P r o c e e d in g s .A p p en d ix G .— A p p e a l, R e f e r e n c e a n d R e v ie w .A p p en d ix H.— M is c e lla n e o u s .s e c o n d s c h e d u l e .— *t h ir d s c h e d u l e —***E x e c u tio n o f D e c r e e s by C o l l e c t o r s .THE CODE OF CIVIL PROCEDURE.[In d ia A c t1. *Definitions.*V, 1908.](1st January, 1909.)P relim in a r y .**2. In this Act. unless there is anything repugnant in the subject orcontext,—(1) “ Code ” includes r ฟ eร ;(2) “ decree ” means the foi'm al expression o f an adjudication which, sofar as regards the Court expressing it, conclusively determinesthe rights o f the parties w ith regard to all or any o f the mattersin controversy in the suit and may be either prelim inary or final.I t shall be deemed to include the rejection o f a plaint and thedetermination o f any question w ithin Section 47 or section 144, but shall not include--(a)(b)any adjudication from which an appeal lies as an appeal from anorder, orany order of dismissal fo r default.Explanation.—Adecree i t prelim inary when further proceedings haveto be taken before the suit can be completely disposed of. Itis final when such adjudication completely disposes o f the suit.It may be partly prelim inary and partly fin a l:(3) “ decree-holder ” means any person in whose favour a decree hasbeen passed or an order capable o f execution has been made;(4) “ d is tric t” means the local lim its o f the jurisdiction o f a principalc iv il Court o f original jurisdiction (hereinafter called a D istrictCourt ” ), and includes the local lim its o f the ordinary originalciv il jurisdiction o f the High Court ะ(5) “ foreign Court ” means a Court situate beyond the lim its o f theUnion o f Burma which has no authority in the Union o f Burmaand is not established or continued by the President o f the Union;

C iv il Procedure .น6. Save in so far as is otherwise expressly provided, nothing hereincontained shall operate to give any Court jurisdiction over suits the amountor value of the subject-m atter of which exceeds the pecuniary lim its (if any) ofits ordinary jurisdiction.7. The following provisions shall not extend to Courts constituted underthe Burma Small Cause Courts Act or to Courts exercising the jurisdiction ofa Court of Small Causes under that Act, that is to say,—(a) so much of the body of the Code as relates to—(i) suits excepted from the cognizance of a Court of Small Causes ;(ii) the execution of decrees in such suits ;(iii) the execution of decrees against immoveable property; and( b ) the following sections, that is to say,—section 9,sections 91 and 92,sections 94 and 95 so far as they authorize or relate to—(i) orders for the attachm ent of immoveable' property,(ii) injunctions,(iii) the appointm ent of a receiver of immoveable property, or(iv) the interlocutory orders referred to in clause (e) of section 94,and sections 96 to 112 and 115.8.****PART I.SUITS IN GENERAL.J u r is d ic t io no f the courts andPecuniaryjurisdiction.Courts underthe Burm aSmall CauseCourts Act.Res judicata.9. The Courts shall (subject to the provisions herein contained) havejurisdiction to try all suits of a civil nature excepting suits of which theircognizance is either expressly or impliedly barred.Explanation.—A suit in which the right to property or to an office iscontested is a suit of a civil nature, notwithstanding that such right maydepend entirely on the decision of questions as to religious rites or ceremonies.10. No Court shall proceed with the trial of any suit in which the matterin i&sue is also directly and substantially in issue in a previously institutedsuit between me same parties, or between parties under whom-they or any ofthem claim, litigating under the same title, where such suit is pending in thesame Or any other Court in the Union of Burma having jurisdiction to grantthe relief claimed, or before [the Supreme Court.]1Explanation.—The pendency of a suit in a foreign Court does notpreclude the Courts in the Union of Burma from trying a suit founded on thesame cause of action.1 Substituted by the Union Of Burma (Adaptation of Law s) Order, 1948.Courts to tryall civil suitsuule'Sbarred .Stay of suit.

12C iv il Procedure 11. No Court shall try aim suit or issue in which the m atter directly andsubstantially in issue has been directly and substantially in issue in a formersuit between the same parties, or between parties under whom they or any ofthemi claim, litigating under the same title, in a Court com petent to try suchsubsequent suit or the suit in which such issue has been subsequently raised,and has been heard and finally decided by such Court.Explanation 1.—The expression “ form er su it” shall denote a suit whichhas been decided prior to the suit in question whether or not it was institutedprior thereto.Explanation II.—For the purposes of this section, the competence of aCourt shall be determined irrespective of any provisions as to a right of appealfrom the decision of such Court.Explanation III .—The m atter above referred to must in the form er suithave been alleged by one party and either denied or adm itted, expressly orimpliedly, by the other.Explanation IV. —Any m atter which might and ought to have been madeground of defence or attack in such former suit shall be deemed to have beena m atter directly and substantially in isffue in such suit*Explanation V.—Any relief claimed fh the plaint, which is not expresslygranted by the decree, shall, for the purposes of this section, be deemed tohave been refused.Explanation VI.—Where persons litigate bond fide in respect of a publicright or of a private right claimed in common for themselves and others, allpersons interested in such right shall, for the purposes of this section, bedeemed to claim under the persons so litigating.Bar to further12. W here a plaintiff is precluded by rules from instituting a further suitsuit.in respect Iff any particular cause of action, he shall not be entitled toinstitute a suit in respect of such cause of action in any Court to which thisCode applies.Res judicata. When foreignJudgmentnotconclusive.13. A foreign judgment shall be conclusive as to any m atter therebydirectly adjudicated upon between the* same parties, or between parties underwhom they or any of them claim , litigating under the same title, except—(a) where it has not been pronounced by a C ourt of competentjurisdiction ะ(b) where it has not been given on the m erits of the case ;(c) where it appears on the face of the proceedings to be founded onan incorrect view of international law or a refusal to recognisethe law of the Union of Burma in cases in which such law isapplicable;id) where the proceedings in which the judgment was obtained areopposed to natural justice ะ

Civil Procedure.13(e) where it has been obtained by (raud ;(/) whore it sustains a claim founded on a breach of any law in forccin the Union of Burma.14. The Court shall presume, upon the production of any documentpurporting to be a certified copy of a foreign judgment, that such judgmentwas pronounced by a Court of competent jurisdiction, unless the contraryappears on the record ; but such presumption may be displaced by provingwant of jurisdiction.Presum ptionas to foreignjudgm ents.P lace of S uing 15. Every suit shall be instituted in the Court of the' lowest gradecom petent to try it-1 16. Subject to the pecuniary or other limitations prescribed by any law,suits—(а )for the recovery of immoveable property with or without rent orprofits.(б) for the partition of immoveable property,(c) for foreclosure, sale or redemption in the case of a mortgage of orcharge upon immoveable property.(d) for the determination of any other right to or interest inimmoveable property,(e) for compensation for wrong to immoveable property,(/) for the recovery of moveable property actually under distraint orattachment,Court inw hich suitsto beinstituted.Suits to beinstitutedwheresubjectmattersituate.shall be instituted in the Court within the local lim its of whose jurisdictionthe property is situate :Provided that a suit to ๖btain relief respecting, or compensation forwrong to, immoveable property held by or on behalf of the defendant may,where the relief sought can be entirely obtained through his personalobedience, be instituted either in the Court within the local lim its of whosejurisdiction the property is situate, or in the Court within the local lim its ofwhose jurisdiction the defendant actually and voluntarily resides, or carrieson business, or personally works for gain.Explanation.—In this section “ property ” means property situate in theUnion of Burma.117. Where a suit is to obtain relief respecting, or compensation forwrong to, immoveable property situate within the jurisdiction of different1 Sections 16 and 17 do not apply to the High Court in the exercise of its original civiljurisdiction, see section 120 to st.Suits forim moveableproperty

14situate w ith in jurisdic tion ofdifferentCourts.Place ofinstitutionof suit w herelocal lim itsof jurisdic tion of Courtsare uncertain.Suits forcompensationfor wrongs toperson ormoveables.C ivil Procedure.Courts, the suit may be instituted in any Court within the local limits ofwhose jurisdiction any portion of the property is situ ate:Provided that, in respect of the value of the subject-m atter of the suit,the entire claim is cognizable by such Court.18. (/) Where it is alleged to be uncertain within the local lim its of thejurisdiction of which of two or more Courts any immoveable property issituate, any one of those Courts may, if satisfied that there is ground for thealleged uncertainty, record a statement to that effect and thereupon proceed toentertain and dispose of any suit relating to that property, and its decree inthe suit shall have the same effect as if the property were situate within thelocal lim its of its jurisdiction :Provided that the suit is one with respect to which the Court is competentas regards the nature and value of the suit to exercise jurisdiction.(2) Where a statement has not been recorded under sub-section (/), andan objection is taken before an appellate or revisional Court that a decree ororder in a suit relating to such property was made by a Court not havingjurisdiction where the property is situate, the appellate or revisional Courtshall not allow the objection unless in its opinion there was, at the time of theinstitution of the suit, no reasonable ground for uncertainty as to the Courthaving jurisdiction with respect thereto and there has been a consequent failureof justice.19. Where a suit is for compensation for wrong done to the person or tomoveable property, if the wrong was done within the local lim its of thejurisdiction of one Court, and the defendant resides, or carries on business, orpersonally works for gain within the local lim its of the jurisdiction of anotherCourt, the suit may be instituted at the option of the plaintiff in either of thesaid Courts.(а) A 1 re s id in g in M andalay, beatsB inIllustrations.R angoon. B m iysue A e ith e rinM andalay.(б) Ay re s id in g in M a n d a la y, p u b lish e s in Rangoon statem ents d e fam atoryAOther suitsto be insti tuted wheredefendantsreside orcause ofaction arises.R an g o on o r inof B. B maysuee ith e r in Rangoon o r in M andalay.1 20. Subject to the lim itations aforesaid, every suit shall be instituted ina Court within the local lim its of whose jurisdiction—(a) the defendant, or eiich of the defendants where there are m6re thanone, at the time of the commencement of the suit, actually andvoluntarily resides, or carries on business, or personally

THE CODE OF CIVIL PROCEDURE. [India Act V, 1908.] (1st January, 1909.) Preliminary. 1. * * * * 2. In this Act. unless there is anything repugnant in the subject or context,— (1) “ Code ” includes rฟe ร; (2) “ decree ” means the foi'mal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to .

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