Bombay High Court Manual

B O M B AY H I G H C O U R T

U N I F I E D A N D R E V I SE D R U L E S (ORIGINAL SIDE AND APPELLATE SIDE)

High Court Rules Review Committee

Chairman Mr Justice B. H. Marlapalle

Submitted to the Hon’ble the Chief Justice Mumbai 6 December 2011

High Court Rules Review Committee High Court Mr Justice B. H. Marlapalle, Chairman Mr Justice A.M. Khanwilkar • Dr Justice D.Y Chandrachud • Mr Justice V.M. Kanade Mr Justice S.J. Vazifdar • Mr Justice R.C. Chavan

City Civil Court, Greater Mumbai Mrs Swapna Joshi, Principal Judge

Registry Mr Mangesh Patil

Registrar, Judicial-I, Appellate Side

Mr Dilip R. Shirasao

Registrar, Judicial-II, Appellate Side

Mr D.V. Sawant

Additional Registrar, OS, and Additional Prothonotary & Senior Master, OS

Bar Mr R.A. Dada, Senior Advocate • Mr V.A. Gangal, Advocate Mr M.P.S. Rao, Senior Advocate • Mr Priyahas Jani, Advocate & Solicitor Mr Sandeep Shinde • Mr Uday Warunjikar • Mr Anil Singh Mr Gautam Patel

Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. Substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other. —Salmond on Juriprudence, (P.J. Fitzgerald, Ed., 2000) at 461-462

Procedure is the hand-maiden of justice and is not supposed to be its mitress. —A.R. Anutlay v. R.S. Nayak, (1988) 2 SCC 602

Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. —Sambhaji v Gangabai, (2008) 17 SCC 117

CONTENTS

Introduction by Mr. Justice B.H. Marlapalle, Chairman, High Court Rules Revision Committee .......................................................................................i

PART I | GENERAL CH. 1

GENERAL................................................................................... 1

CH. 2

ADVOCATES AND REGISTERED CLERKS ............................4

CH. 3

REGISTRARS, OFFICERS & OFFICES OF THE HIGH COURT ................................................................. 18

CH. 4

COURT SESSIONS, RECESSES AND CLOSED DAYS .......... 24

CH. 5

AFFIDAVITS ............................................................................ 26

CH. 6

INTERIM APPLICATIONS ..................................................... 28

CH. 7

TAXATION, COSTS AND FEES ..............................................32

CH. 8

SERVICE....................................................................................33

CH. 9

COMPUTATION OF TIME ..................................................... 39

CH. 10

JUDGMENT, ORDER, DECREE & ROZNAMA..................... 41

CH. 11

SEARCH AND COPIES.............................................................51

CH. 12

OFFICE OF THE CHIEF TRANSLATOR AND INTERPRETER................................................................55

CH. 13

OFFICE OF THE SHERIFF OF BOMBAY .............................. 62

CH. 14

OFFICE OF THE RECEIVER .................................................. 73

CH. 15

DESTRUCTION OF RECORDS ..............................................76

CH. 16

MINORS AND PERSONS OF UNSOUND MIND .................. 82

I

II PART II | JURISDICTION CH. 17

ORIGINAL JURISDICTION.................................................... 87

CH. 18

JURISDICTION (CIVIL AND CRIMINAL) OTHER THAN ORIGINAL ..................................................... 88

CH. 19

CRIMINAL JURISDICTION ................................................... 94

CH. 20

SPECIAL JURISDICTION: TESTAMENTARY & INTESTATE JURISDICTION ..............99

CH. 21

SPECIAL JURISDICTION: ADMIRALTY .......................................................................... 117

PART III | FILINGS CH. 22

FILINGS, GENERALLY...........................................................135

CH. 23

PROCEDURE AFTER PRESENTATION, REMOVAL OF OFFICE OBJECTIONS, ETC ........................................... 145

PART IV | WRITS AND APPLICATIONS UNDER ARTICLE 227 CH. 24

WRIT PETITIONS UNDER A. 226 (INCLUDING HABEAS CORPUS) AND APPLICATIONS UNDER A.227... 154

PART V | ORIGINAL SIDE WORK CH. 25

PLAINT AND INSTITUTION OF SUIT................................. 156

CH. 26

WRIT OF SUMMONS............................................................. 157

CH. 27

SPECIAL PROVISIONS REGARDING WRITTEN STATEMENT, SET OFF AND COUNTER-CLAIM ................................................................ 158

CH. 28

THIRD PARTY PROCEDURE ............................................... 159

CH. 29

DISCOVERY AND INSPECTION.......................................... 165

CH. 30

MATTERS ARISING PENDING SUIT.................................. 166

CH. 31

COMMISSIONER FOR RECORDING EVIDENCE............. 169

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III CH. 32

PROCEDURE AT HEARING OF SUITS ................................175

CH. 33

COMMISSIONER FOR TAKING ACCOUNTS .................... 176

CH. 34

ARREST AND ATTACHMENT BEFORE JUDGEMENT..... 187

CH. 35

EXECUTION OF DECREES AND ORDERS ........................ 189

CH. 36

GARNISHEE PROCEEDINGS ..............................................196

CH. 37

SECURITY.............................................................................. 201

CH. 38

SALE OF PROPERTIES & SETTLING OF PROCLAMATION OF SALE ...........................................204

CH. 39

SPECIAL CLASSES OF PROCEEDINGS .............................. 224 A.

SUMMARY SUITS ........................................................ 224

B.

SUITS BY INDIGENT PERSONS..................................225

C.

ORIGINATING SUMMONS .........................................228

D.

ADMINISTRATION SUITS .......................................... 235

PART VI | APPELLATE PROCEEDINGS CH. 40

PRESENTATION OF APPEALS AND APPLICATIONS ...... 236

CH. 41

REFERENCES FROM THE BOMBAY COURT OF SMALL CAUSES AND UNDER SECTTON 113 AND ORDER XLVI OF THE CIVIL PROCEDURE CODE ..................................................244

PART VII | CRIMINAL PROCEEDINGS CH. 42

CRIMINAL BUSINESS........................................................... 245

CH. 43

RULES UNDER SECTION 477(L)(D) READ WITH SECTION 96 OF THE CODE OF CRIMINAL PROCEDURE, 1973.................................................................257

CH. 44

BAIL APPLICATIONS .......................................................... 260

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INTRODUCTION

The High Court Rules Revision Committee (“RRC”) respectfully submits to the Hon’ble the Chief Justice and other puisne Judges of the Bombay High Court, the following revised and consolidated Rules for the High Court. For some time now, the High Court administration had been acutely conscious of the fact that our Rules, on both the Original and Appellate Sides, desperately need revision. These have not been revisited in several decades. In that time, working methods have changed and technologies have forged ahead at a rapid pace, while our Rules have lagged behind. There was growing discontent at the Bar and from litigants, to the extent that even PILs came to be filed demanding changes. Specific demands were made for introducing the use of information technology, and to expand the reach and scope of the High Court IT systems and website. The Apex Court has already taken the lead in this direction. Other Courts—notably the Delhi High Court— have made great strides as well. The State Government is fully committed to upgrading the communications and technological facilities of all Courts in Maharashtra. Having regard to all these factors, the demands for simplification, streamlining, consistency and technological change had to be met. The RRC was thus constituted with the specific mandate of thoroughly revising and, for the first time, unifying the High Court rules as applicable to both the Original Side and the Appellate Side. We were also given the latitude to introduce new provisions taking advantage of modern communication and information technology. Not having been attempted on this scale or with this range for several decades, ours proved to be a mammoth task, and it has taken considerable time, far longer than initially anticipated. A very large

i

ii number of meetings were held. The RRC first consolidated both the Original Side and Appellate Side Rules, then re-arranged them to remove overlapping sections and thereafter considered each rule in turn over several meetings. Several revisions were considered. It was my very great privilege to serve as Chairman of the RRC. My brother judges serving on the Committee were Mr Justice A.M. Khanwilkar, Dr Justice D.Y Chandrachud, Mr Justice V.M. Kanade, Mr Justice S.J. Vazifdar and Mr Justice R.C. Chavan. The Principal Judge of the City Civil Court, Greater Mumbai, Mrs Swapna Joshi, was also an integral part of the RRC. The present Committee is perhaps also the first Rules Committee to have such active participation from the Original and Appellate Bars and from the Bar Council of Maharashtra and Goa. Their representatives included Mr R.A. Dada, Senior Advocate; Mr V.A. Gangal, Advocate; Mr M.P.S. Rao, Senior Advocate; Mr Priyahas Jani, Advocate & Solicitor; Mr Sandeep Shinde; Mr Uday Warunjikar and Mr Gautam Patel. We were greatly assisted in our task by our diligent and industrious officers, Mr Mangesh Patil (Registrar, Judicial-I, Appellate Side), Mr Dilip R. Shirasao (Registrar, Judicial-II, Appellate Side) and Mr D.V. Sawant (Additional Registrar, OS, and Additional Prothonotary & Senior Master, OS). From the beginning, the present Committee adopted an approach that has never been fully attempted before. Previous attempts were limited to attempting amendments to meet with emerging exigencies and various amendments were made over time. A previous attempt at simplification, confined to the Original Side (with the involvement of the Original Side), did not fructify. There was never a concerted effort towards simplification, unification and modernisation in one go. The present committee adopted all previous efforts but went further: for the first time it brought together in one cohesive document a set of rules applicable to both sides and to all benches of the High Court. During this exercise, the committee also took into account various suggestions that came from both Bar and Bench, including the suggestions made in at least one pending PIL. Our broad guiding principles have been two: First, where the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973 have adequate provisions, we have ensured that these are followed and retain

iii primacy. Where possible, duplications and unnecessary substitutions in our Rules have been removed. The underlying intention was that by making the Codes applicable, there would be greater consistency between various sides and benches of the High Court; between the High Court and subordinate courts; and the elimination of conflicts and ambiguities (for example in the division of writ work between single judge benches and division benches) that have plagued us for far too long. The second major focus was to bring the Rules up to date with modern technology and practices. The disconnect between technological advances of society and our rules has resulted in considerable hardship to litigants, lawyers, judges and the court administration. While the world is increasingly digital, our systems force us to laborious, inefficient and error-prone manual methods. In some areas, we found to our amazement, our systems even require the manual conversion to analog (hard) copy of existing digital data, when the process should be exactly the reverse. We recognised this and, in the present Rules, have attempted to bridge this chasm. For instance, we have provided for e-filing and electronic service (by email and by website postings, with suitable safeguards). We have radically changed the method, manner and mode of all filing: the old-school non-standard foolscap ledger paper requirement has been dispensed with and replaced by an international industry-standard A4sized white paper method. For consistency, we have specified the paper, the margins and even the fonts and acceptable formatting (boldface, underlining and italics). Citation methods are also standardised. This has been done consciously: we took into account the fact that A4 is the standard for most printers, especially for duplex printing; and we planned ahead for the time when e-filing becomes compulsory since it is easier to scan and digitize A4 sized paper into secure PDF files without the data loss that too often occurs with foolscap paper. We have established new protocols for intimation and service. Throughout we have attempted to leverage the worldwide, 24x7 reach of the High Court website for multiple uses, from the posting of notices to making available citations in testamentary matters. Our fundamental structures have also changed. The Original Side practice of Notices of Motion and Chamber Summonses have been

iv done away with. To bring these into line with the Appellate Side and Apex Court practice, we have substituted all Notices of Motion, Chamber Summonses and even Civil Applications with simple Interim Applications or IAs, on which the relevant section of the applicable Code or Rules is to be cited. In certain areas, our departures from established practice are radical. For example: § The Admiralty Rules have been entirely revamped, and in this regard we must thank Justice Vazifdar, who took the lead, and Mr Rahul Narichania, Advocate; Mr Zarir Bharucha, Advocate; Mr Pradeep Sancheti, Senior Advocate; Mr Ramabhadran, Advocate and Mr A.M. Vernekar, Advocate. § The rules and procedures for taking of evidence before Commissioners have been streamlined and simplified; § There are new rules and procedures in the Testamentary section relating to contested matters with a view to ensure that estates do not remain locked up indefinitely; § The entire chapter on service has been changed to use the judiciary’s intranet and existing facilities instead of having to route services through the Sheriff ’s office; § All filing has now been standardised to A4 size white paper for better storage, convenience of litigants and ease in transfer to digital records. § The conflicts regarding Writs under A.226 and applications under A.227, and the division of work between Single Benches and Division Benches have been resolved in a neat and succinct fashion to remove all controversy. The previous rule has been condensed into a simplified two-page set that seems to us to sufficiently cover all eventualities. Choosing forums has been eliminated, as far as possible. We have not, it must be added, considered individual rules under the specific acts (such as the Land Acquisition Act or the Banking Regulation Act) and the work on forms and schedules will have to be deferred till the present Rules are finalized.

v Our aim in attempting this exercise was to evolve a set of procedures and protocols that are (a) litigant friendly and easy to understand and use; (b) use modern methods and technologies and adapt them to our purposes; and (c) provide enough play in the joints so that the Rules can adapt to future requirements in the years and decades ahead. As one example of a small but significant change, we have extensively moved portions that are apt to change into schedules and annexures so that these can be modified to meet changing conditions without requiring constant amendments and renumbering of the rules. To be sure, there is no one solution to the serious problem of pendency and backlog. At the same time, if the introduction of much-needed procedural changes of simplification and streamlining can, at least for the majority of cases, ensure timely disposal, then our objectives will have been achieved. This is therefore not change for its own sake; it is directed to every branch of the judicial system, from the litigant to the judge, and it is intended to strengthen the hands of the judiciary, and to restore public faith in our judicial processes. It is our hope that this revision will provide the foundation for an entirely new set of procedural Rules that will improve the working of the High Court and simultaneously serve the needs of litigants well into the 21st century.

Justice B.H. Marlapalle Chairman, High Court Rules Revision Committee Mumbai 6 December 2011

PART I: GENERAL

CHAPTER 1 GENERAL

1.1

Rules in addition to the Rules framed otherwise.—These Rules are in addition to the Rules framed by the High Court under section 34(1) of the Advocates Act, 1961, and printed in the Appendix VI to these rules.

1.2

Code of Civil Procedure, 1908 to apply.—Subject to these Rules and the provisions of Order 49 of the Code of Civil Procedure, 1908, the provisions of the Code of Civil Procedure, 1908 (including the Maharashtra amendments) shall apply to all proceedings filed in the High Court. In the event of any conflict between these Rules and the provisions of the Code of Civil Procedure, 1908, these Rules shall prevail.

1.3

Definitions.— Unless the context otherwise requires:(a)

“Advocate” means and includes an Advocate as defined in the Advocates Act, and includes a firm of Advocates and means an Advocate or firm of Advocates acting for any party in any proceeding and an attorney on the Roll of Attorneys of the High Court.

(b)

“Advocate On Record” means every Advocate or Attorney acting for any party in any proceeding and includes a firm of Advocates;

(c)

“Clear days” in these Rules shall be construed as defined in Rule 1 of Chapter 10 of these Rules.

(d)

“Client” means a party in any proceeding;

1

2 (e)

“Commissioner” means every Commissioner appointed by the High Court and includes the Commissioner For Taking Accounts, a Commissioner For Recording Evidence, a Commissioner for Local Investigation, a Special Commissioner and also the Assistant Commissioner and any other Officer who may be authorised by the Chief Justice to perform the duties usually performed by the Commissioner.

(f)

“Counsel” means every Advocate entitled to practice in the High Court but who does not in his own name or in the name of a firm of Advocates in which he is a partner enter an appearance or file a vakalatnama or act on behalf of any party, and includes (i) a Senior Counsel designated by the High Court; and (ii) a pleader within the meaning of the proviso to Order III, Rule 4(5) of the Code of Civil Procedure, 1908.

(g)

“Filing” means and includes every Plaint, Written Statement, Petition, Memorandum of Appeal, Affidavit, Application and every pleading within the meaning of the Code of Civil Procedure, 1908 which is filed with the High Court registry or tendered to Court and taken on record by the Court and which is also signed or attested by an Advocate or a party or both.

(h)

“High Court” means the the High Court at Bombay in all its Benches.

(i)

“Include”, with all its grammatical variations means “including but not limited to” or “including without limitation”;

(j)

“Judge” means the bench of the High Court assigned to deal with the matter in question.

(k)

“Month” shall mean a calendar month as defined in Rule 2 of Chapter 10 of these Rules.

(l)

“Notice” means intimation communicated by all or any of the means specified in Chapter 9 of these Rules (“Service”) and includes intimation by the Registrar or

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3 authorised officer on behalf of the Court and private notice by a party or his Advocate.

1.4

(m)

“Notify”, with all its grammatical variations, when used in the context of an action to be performed by the RegistrarGeneral or other authorised Court officer means to notify by every means and in every manner as may periodically be prescribed and shall always be deemed to include updating of the “Case Status” information of the Official Website of the High Court.

(n)

“Official Website” of the High Court means the website authorised by the High Court for the display of publicly accessible information and includes every sub-domain thereof.

(o)

“Proceeding” means the entirety of the record of any matter before the Court.

(p)

“Registrar” and “Registrar-General” includes an Officer designated by the Registrar-General of the High Court under these Rules or as permitted by the High Court.

(q)

“Solicitor” means an attorney.

Interpretation.—In these Rules, unless the context otherwise requires : (a)

Capitalized terms have the meanings as defined in the Rules;

(b)

A reference to the singular includes the plural and vice versa;

(c)

A reference to a gender includes both genders;

(d)

A reference to a law is a reference to that law as amended and applicable in the State of Maharashtra.

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4

CHAPTER 2 ADVOCATES AND REGISTERED CLERKS

SECTION A: ADVOCATES

2.1

Appearance of Counsel in the High Court.—Every Counsel entitled to practice in any Court in India may appear and plead before the High Court in any matter without having to file a note of appearance or vakalatnama PROVIDED THAT such Counsel is instructed by and appears along with an Advocate entitled to practice in the High Court.

2.2

Appearance of Advocates in the High Court.— (a)

Every Advocate who is on the Roll of Advocates of the Bar Council of Maharashtra and Goa may act, appear and plead in any matter in the High Court.

(b)

An Advocate who is not on the Roll of Advocates of the Bar Council of Maharashtra may also act, appear and plead in any particular matter in the High Court; PROVIDED THAT such Advocate— (i)

furnishes a local address of service as required by these Rules and specifies the same on the vakalatnama or note of appearance filed by him in every matter;

(ii)

specifically endorses on the vakalatnama his unique registration or roll number with the Bar Council with which he is registered;

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5

2.3

(iii)

files, along with his vakalatnama, a signed declaration confirming that he continues to be on the Rolls of that Bar Council and is entitled to practice and that his license to practice has not been revoked, suspended or cancelled as on the date of the filing of the vakalatnama;

(iv)

Shall also be bound by all other Rules applicable to Advocates registered with the Bar Council of Maharashtra & Goa and entitled to practice in the High Court including those regarding registered clerks.

Office Address.— (a)

Every Advocate on Record shall, along with his vakalatnama, file a memorandum of local address within the limits specified in {Appendix XX} to these Rules and which address shall be the address where service as required under these Rules may be effected.

(b)

Except on Court holidays, service ast such address shall be delivered and accepted at any time from 10.30 a.m. to 6.30 p.m. on weekdays and from 10.30 a.m. to 3.00 p.m. on Saturdays, with one or more Clerks present thereat to accept service.

(c)

If it is brought to the notice of the Registrar-General that the location of the address of any Advocate is inaccessible for service on the Advocate on Record, the RegistrarGeneral, after giving an opportunity to the Advocate on Record concerned of being heard and after recording reasons in writing, may direct that the Advocate on Record shall, within a specified time, notify another location for his address for service and obtain the approval thereto of the Registrar-General within such specified time. If within such specified time or such further time as may be granted by the Registrar-General, the Advocate on Record fails to notify a new address for service, and obtain an approval of the Registrar-General thereto as aforesaid, the RegistrarGeneral shall make a report to the Administrative Judge for

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6 suitable directions and shall also intimate the Bar Council concerned of the report made. The Administrative Judge, after hearing the Advocate on Record concerned, may pass appropriate orders in the matter. 2.4

Subsequent change in Advocate on Record’s address for service to be notified and intimated.—An address for service shall continue as such till the Advocate on Record duly notifies a change thereof by filing a fresh Memorandum of Address for service in every matter in which he has filed a vakalatnama and (a)

Informing all Advocates for opposing parties of such change.

(b)

Notifying the Registrar-General of such change.

2.5

No appearance without Vakalatnama or undertaking.—No Advocate on Record shall appear or plead in any matter without filing a vakalatnama unless he has given an undertaking to file his vakalatnama within two weeks from the date when he appears without having so filed a vakalatnama or before the next date of hearing, whichever is earlier.

2.6

Ratification of acceptance of Vakalatnama by the Advocate concerned when endorsement of acceptance is made by another.—Where an endorsement of acceptance on the Vakalatnama has been made by any other Advocate on behalf of the Advocate concerned, the latter shall ratify the acceptance of the Vakalatnama within one week of its being filed by putting his own signature to it.

2.7

Joint Vakalatnama.—Where two or more Advocates on Record file a joint vakalatnama, the same should show the address for service of any one Advocate on Record, which should be the address for service of the Advocates on Record for the suit or proceeding.

2.8

Consent of Advocate on record necessary before another Advocate files appearance.—An Advocate on Record shall not be permitted to file appearance in any matter or proceeding if there is already an Advocate on Record, unless he produces a written consent or no-objection of the Advocate on Record:

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7 (a)

Where such consent is not necessary.—Provided that no such consent shall be necessary where the Advocate on Record has been suspended or removed from practice, or has ceased to practice, or has been rendered incapable of practising on account of physical or mental incapacity or any other cause;

(b)

Court may dispense with such consent.—Provided further that the Court may in any appropriate case dispense with such consent, if it deems fit to do so.

Upon every such change of Advocate on Record, the rules regarding intimation of a local address for service shall apply to the new Advocate on Record. 2.9

Withdrawal of appearance.— (a)

When an Advocate on Record who has filed a Vakalatnama for a party wishes to withdraw his appearance he shall serve a written notice of his intention to do so on his client at least seven days in advance of the case coming up for hearing before the Court. Leave of the Court to withdraw appearance may also be applied for if the client has instructed the Advocate to that effect.

(b)

The Advocate shall file a note in writing requesting the Court for permission to withdraw appearance and shall also file along with the Note the letter of the client instructing him to withdraw his appearance or a copy of the intimation given to the client as above together with its written acknowledgment by the client. The Court if it is satisfied that no inconvenience is likely to be caused to the Court or the client may permit the Advocate to withdraw his appearance and while permitting the Advocate to do so may also impose such terms and conditions as it may deem proper either in public interest or in the interest of the parties.

2.10 Party represented by Advocate not entitled to act or appear in person.—When a party is represented by an Advocate, he shall not be entitled to make any application or file any preceipe or

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8 appear in person, unless the Court or the Registrar-General, as the case may be, allows him to do so. 2.11

Party in person to supply address and postage, if desiring information regarding his matter by post; and to supply optionally email address—At the time of presentation, the party in person shall supply a memorandum of his address to which communications regarding the matter presented by him should be addressed by the office and sufficient postal stamps for the postage and registration charges. The party in person may, at his option, and if such facility is made available by the High Court, provide a working email address for such communications and it shall be the responsibility of such party to ensure that the said email address is functional during the pendency of his matter; that it is regularly checked; and that any change thereof is duly intimated to the Registrar.

2.12

Advocates may supply email address not ordinarily practising in High Court to leave written instructions and supply necessary postage, if desiring information regarding their matters by post.—Advocates who do not reside or have their Office within the limits of Greater Mumbai/Nagpur City/Aurangabad City or Panaji, in respect of their appearances in the High Court or its Benches at Nagpur, Aurangabad or Panaji as the case be— (a)

Shall comply with the foregoing rules regarding a local address for service;

(b)

Shall have a recognised clerk attached to the High Court or its benches at Nagpur, Aurangabad or Panaji duly registered as such with the Office of the Registrar or Additional Registrar or the Special Officer as the case be. Service on such clerk, shall be deemed to be service on the Advocate as provided in these Rules.

(c)

May, at their option, and if such facility is made available by the High Court, provide a working email address for such communications and it shall be the responsibility of the Advocate to ensure that the said email address is functional during the pendency of his matter; that it is

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9 regularly checked; and that any change thereof is duly intimated to the Registrar. 2.13

Acceptance of service by Advocate on behalf of client.—When an advocate has filed his Vakalatnama for a party in any proceeding, he shall accept service on behalf of his client of all processes (including a Interim Application and Summons for Judgment) issued in the suit or matter until he is discharged.

2.14

Responsibility of Advocate for payment of fees.— An Advocate on the record of any proceeding shall be responsible for fees chargeable under the rules of the High Court (but not court fees, for which a party shall be liable) until an order for his discharge is obtained.

2.15

Application of Rules to Advocates, Supreme Court, mutatis mutandis.— All the Rules contained herein which enjoin any duty or obligation on an Advocate shall apply *mutatis mutandis to Advocates of the Supreme Court acting for litigants without being instructed by another Advocate; the rules relating to local address for service, joint vakalatnama and registered clerks will not apply to a Supreme Court Advocate in respect of proceedings in which he has already filed a vakalatnama prior to 1st January 1977. PROVIDED THAT

2.16 Advocate to keep accounts.—Every advocate shall keep such books of accounts as may be necessary to show and distinguish in connection with his practice as an Advocate—

2.17

(a)

Moneys received from or on account of and moneys paid to or on account of each of his clients and,

(b)

the money received and the moneys paid on his own account.

Obligation to pay money into a “client account”.—Every Advocate who holds or receives money on account of a client (save money hereinafter expressly exempted from the application of this Rule) shall forthwith pay such money to a current or deposit account at bank to be kept in the name of the Advocate in the title of which the word “client” shall appear (hereinafter

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10 referred to as “clients account”). An Advocate may keep one client account or as many such accounts as he thinks fit: PROVIDED THAT when an Advocate receives a cheque or draft presenting in part money belonging to the client and in part money due to the Advocate, he may, where practicable, split the cheque or draft and pay to the client account that part only which represents money belonging to the client. In any other case he shall pay the whole of such cheque or draft into the client account. 2.18

What moneys to be paid into a “client account”.—No money shall be paid into a client account other than— (a)

money held or received on account of client;

(b)

such money belonging to the Advocate as may be necessary for the purpose of opening or maintaining the account;

(c)

money for replacement of any sum which may by mistake or accident have been drawn from the account in contravention of Rules 2.16 of these Rules;

(d)

a cheque or draft received by the Advocate representing in part money belonging to the client and in part money due to the Advocate when such cheque or draft has not been split as provided by Rule 2.14 hereof.

2.19 What moneys to be withdrawn from a “client account”.— No money shall be drawn from a client account other than— (a)

money properly required for payment to or on behalf of a client or for or towards payment of a debt due to the Advocate from a client or money drawn on client’s authority, or money in respect of which there is a liability of the client to the Advocate, provided that money so drawn shall not in any case exceed the total of the money so held for the time being for such client;

(b)

such money belonging to the Advocate as may have been paid into the client account under Rule 2.15(b) or 2.15(d) of these rules;

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11 (c)

money which may by mistake or accident have been paid into such account in contravention of Rule 2.15 of these Rules.

2.20 Inapplicability of Rules 2.14, 2.15 and 2.16 in certain cases.— Rules 2.14, 2.15 and 2.16 shall not apply to money which— (a)

the client authorises an Advocate in writing to withhold from a client account.

(b)

an Advocate pays into a separate account opened or to be opened in the name of a client or some person named by that client or the duly authorised agent of the client;

(c)

in the ordinary course of business upon receipt is paid on behalf of the client to third party;

(d)

is upon receipt paid to the client;

(e)

is paid to an Advocate expressly on account of costs;

(f)

the Bar Council of Maharashtra, upon an application made to them in writing by an Advocate, specifically authorises in writing to be withheld or withdrawn form a client account.

2.21

Production of Accounts for inspection.—In order to ascertain whether the above rules have been complied with, the Court may require any Advocate to produce before the Registrar-General his books of accounts, bank pass-books, statements of accounts, vouchers and any other necessary documents for inspection. On a report from the Registrar-General, if, after hearing the Advocate, the Court is of the opinion that the name of such Advocate be removed from the Register permanently or for some period, it may direct accordingly and may further direct the Registrar-General to report the name of the Advocate to the Bar Council for necessary action.

2.22

Appearance in pending cases to be treated as vakalatnama.— If in any proceeding pending on 31st December 1976 in the High Court an Attorney or firm of attorneys have filed an appearance and the said Attorneys or in the case of firm, all partners thereof are also enrolled as Advocates of the Bar Council of Maharashtra,

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12 the said Attorney or firm, shall continue to represent the party for whom the appearance was filed, unless proper discharge is obtained and shall be allowed to act, appear and plead in the matter as an Advocate for the party without filing a vakalatnama. 2.23

Certificate as an attorney.—An attorney who was on the Roll of Attorneys of this Court may, on payment of a fee of Rs. 5 in Court fee stamps, obtain a certificate under the signature of the Registrar-General and the seal of the Court that his name was borne on the Roll of Attorneys of this Court.

2.24 Dress of Advocates.—Advocates appearing before the High Court shall wear following as part of their dress which shall be sober and dignified:— (a)

(b)

(c)

Gentlemen Advocates: (i)

Black buttoned up coat, chapkan, achkan, black sherwani and white bands with Advocates’ Gowns, or

(ii)

Black open breast coat, white shirt, white collar, stiff or soft, and white bands with Advocates’ Gowns.

(iii)

In either case, long trousers (white, black or blackstriped or grey) or dhoti.

Dress of Lady Advocates: (i)

Saree or skirt (of at least knee-length) of white, black or grey and full or half-sleeved collared blouse of white, black or grey and white bands with Advocates’ Gowns or;

(ii)

Salwar Kameez or western dress of white, black or grey with collar and white bands and Advocates’ Gowns.

(iii)

Wearing of black jackets by lady Advocates shall be optional.

Vacation Court:

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13 (i)

2.25

Advocates appearing before the court during its vacations shall wear the same dress as prescribed above; however, wearing of bands, jackets and Advocates’ gowns shall be optional.

Advocate for the Official Liquidator not to act, appear or plead for any other party in matters arising in winding up of Company.—No Advocate who is appointed to assist the Official Liquidator of a Company in the performance of his duties under section 181 of the Indian Companies Act, 1913, or section 459 of the Companies Act, 1956, shall except with the leave of the Court, act, appear or plead for any creditor or debtor or contributory of such company or for any third party in any matter or proceeding, whether civil or criminal arising out of or in the course of the winding up of such Company.

2.26 Interference With The Administration Of Justice.— (a)

A strike resorted to in Court or abstention of work from Court by way of protest by an Advocate or group of Advocates or any Bar Association shall be deemed as an act which tends to interfere with the administration of justice.

(b)

Any advocate resorting to strike will be dealt with in accordance with law.

(c)

In exceptional cases where dignity, integrity and independence of the bar and/or the judiciary are at strike, the President of the Bar Association of the High Court in consultation with the Chief Justice may express protest by abstention from work which shall not be for more than one day. Provided that the Chief Justice will determine the issues after obtaining the view of the Chairman, Bar Council of Maharashtra and Goa, if necessary, as regards involvement of dignity, integrity or independence of the Bar and/or the Judiciary and the degree and adequacy of degree thereof to call for abstention form work, and the decision of the Chief Justice shall be final.

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14 SECTION B: SENIOR ADVOCATES

2.27

The Chief Justice and other Judges of the High Court may, upon a written proposal made by a Senior Advocate with the consent of the Advocate concerned endorsed thereon, designate such an Advocate as a Senior Advocate, if in their opinion, by virtue of his ability, experience and standing at the Bar or his special knowledge or experience in law, the said Advocate is deserving of such distinction.

2.28

Every proposal for designation as a Senior Advocate shall be in the form and subject to the conditions specified in {Schedule XX} annexed hereto and such proposal shall be subscribed by four Senior Advocates, one of whom necessarily has to be from the Court/Bench which is the normal place of practice of the Advocate applying for designation as Senior Advocate, by providing a Statement of reasons to why in his opinion the Advocate concerned is worthy of being designated as a Senior Advocate, having regard to the norms and guidelines prescribed in these Rules. Every proposal shall be accompanied by the Biodata of the Advocate concerned in the form annexed hereto as {Annexure XX}. The Senior Advocate recommending such proposal shall not recommend more than one proposal for the relevant period at a time. The consent letter of the advocate concerned shall be submitted along with the proposal.

2.29 The procedure for designating a Senior Advocate shall be as follows:— (a)

The proposal for designating a Senior Advocate shall be submitted to the Registrar General in accordance with Rule 1 so as to reach him before 31st January and 31st August each year for the consideration of the Hon’ble the Chief Justice and other Hon’ble Judges.

(b)

On receipt of the proposals, the Registrar-General shall scrutinize them and if there be any irregularity, being it to the notice of the proposer, who within 15 days shall remove such irregularities. The Registrar-General on examining all

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15 the proposals shall submit a report to the Chief Justice, as to whether the proposal satisfies the requirement of the Rules for being designated as Senior Advocate. (c)

The Registrar-General shall place all proposals received before the Hon’ble the Chief Justice not later than the 15th of March and 15th of October as the case may be each year, for directions to circulate the valid proposals to all the Hon’ble Judges.

(d)

The proposal(s) shall be placed before the Full Court for its acceptance. The acceptance of the Full Court shall be accorded only if not less than ⅔rds of the Judges present in the meeting vote in favour of acceptance of the proposal(s). Normally, the Judges present in the meeting would vote or abstain for the proposal(s).

2.30 The norms and guidelines for designations as Senior Advocate shall be as follows:— (a)

The Advocate shall be enrolled with the Bar Council of Maharashtra and Goa.

(b)

The Advocate should have not less than fifteen years’ standing as an Advocate.

(c)

The Advocate shall have paid Income Tax on his professional income and his income should not be less than Rupees seven lacs and fifty thousand per annum on the date of application.

(d)

The Advocate should be deserving of distinction by virtue of his ability, integrity, standing at the Bar or special knowledge or experience in law.

(e)

An Advocate convicted by any competent Court or against whom charge has been framed for moral turpitude or for Contempt of Court shall not be eligible for consideration.

(f)

Canvassing in any form by the Advocate concerned or by the proposer shall result in disqualification of the proposal.

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16 (g)

2.31

In case of candidate whose proposal is not approved for designation as Senior Advocate, the proposal of such candidate may be submitted afresh after two years from the date of non-acceptance.

Withdrawal of designation.— (a)

If, after being designated as a Senior Advocate it is reported by a Judge of the Court that by virtue of his conduct and behavior either inside or outside the Court, the Advocate has forfeited his privilege to the distinction conferred upon him by the Court, the matter may be place before the Chief Justice for consideration of the withdrawal of designation as Senior Advocate.

(b)

If the Chief Justice, on receiving the report is satisfied that the matter should be further considered, he shall then constitute a Committee of not less than three Judges of this Court. The Committee will give full opportunity to the Senior Advocate to plead his case including a personal hearing and thereafter submit its proposal to the Chief Justice not later than six months form the date of reference to the Committee. The Committee is free to evolve its own procedure.

(c)

If the Committee in its report recommends withdrawal of designation as Senior Advocate the Chief Justice shall place the report with the recommendation of the Committee at the immediate next full Court Court meeting for its consideration.

(d)

If a majority of Judges present and voting through secret ballot at the meeting are of the view that the Senior Advocate has forfeited his privilege, the Court shall recall his designation as a Senior Advocate.

(e)

The Registrar-General shall notify the decision of the Advocate and the Bar Council of Maharashtra and Goa who shall delete the name from the list of Senior Advocate maintained by the Bar Council.

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17 SECTION C: REGISTERED CLERKS

2.32

An Advocate may employ one or more Clerks to attend the Office of the Officer designated by Registrar-General for presenting and receiving any papers on behalf of the said Advocate: PROVIDED THAT (a)

The said Clerk has been registered with the office of the Registrar-General on application made to the RegistrarGeneral, for the purpose.

(b)

The said Clerk given an undertaking that he shall attend the Office of the Registrar-General regularly.

2.33

No clerk employed by an Advocate shall be allowed access to the Offices of the Court, or to present and receive papers or to act on behalf of Advocate in formal matters unless he is registered as a Clerk of that Advocate.

2.34

An Advocate who does not employ a clerk as stated hereinabove shall attend the office of the Registrar-General personally and regularly for presenting and receiving his papers and he will be deemed to have notice of all communications concerning him and which are placed on the Notice Board of the Office or on the website of the High Court or both.

2.35

Removal of name of clerk from Register.—The RegistrarGeneral may decline to register any clerk who in his opinion is not sufficiently qualified or is otherwise unsuitable to be registered as such and may for reasons to be recorded in writing, remove from the Register the name of any clerk after giving him and his employer an opportunity to show cause against such removal. The removal of such name shall be notified on the Notice Board of the Office and on the High Court Website.

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18

CHAPTER 3 REGISTRARS, OFFICERS & OFFICES OF THE HIGH COURT

SECTION A : POWERS AND DUTIES OF REGISTRAR-GENERAL

POWERS & DUTIES OF THE REGISTRAR-GENERAL, REGISTRAR, DEPUTY REGISTRAR, ASSISTANT REGISTRAR, PROTHONOTARY & SENIOR MASTER AND OFFICERS AT AND ABOVE THE RANK OF ASSISTANT REGISTRAR 3.1

Powers and duties of the Registrar-General, Registrar, Deputy Registrar, Prothonotary & Senior Master and Assistant Registrar in connection with admission of all matters.—The Registrar-General, Registrar, Deputy Registrar, Prothonotary & Senior Master or the Assistant Registrar shall admit to the register all plaints, written statements, memoranda of appeals or cross-objections, and other filings which are duly stamped, in the proper form and contain the required particulars, are accompanied by the necessary copies, and are presented within the period prescribed for the same. No matter shall be considered pending within the meaning of Order XLI, Rule 6 of the Code of Civil Procedure or even generally until it has been admitted to the register.

3.2

The Registrar-General shall decide all questions under this and the preceding Rule, and if he refuses to register any matter, the party aggrieved may move the Court within seven days from the date of the Registrar-General's refusal to direct its registration. The Registrar-General shall indicate his reasons for such refusal in the prescribed form.

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19 3.3

Powers And Duties Of The Registrar-General.—The RegistrarGeneral may exercise the powers and shall discharge the duties set out in Schedule 3.3 to these Rules.

3.4

Matters which can be disposed off by the Registrar-General not to be placed before Court.—No matter which can be disposed off by the Registrar under this rule shall, without the permission of the Court, be placed before the Court.

3.5

Registrar-General not to extend time or excuse delay exceeding one month.—Subject to the provisions of these Rules, the period of time which may be extended, or delay condoned, by the Registrar-General in respect of any action required to be performed and which is required to be done by or under these Rules in a particular time, shall not exceed one month at a time and not more than three months in the aggregate, unless otherwise permitted by the Court.

3.6

Delegation of powers to Registrar, Deputy Registrar, Assistant Registrar.—The Registrar-General may delegate any of the powers mentioned in Rule 3.3 above to such Registrar, Deputy Registrar or Assistant Registrar or such other Officer as may be permitted by the High Court.

3.7

Revision of Orders of Registrar-General, Registrar, Deputy Registrar, Assistant Registrar.—

3.8

(a)

Any orders passed by the Registrar-General, Registrar, Deputy Registrar or Assistant Registrar under Rule 3.3 above or any other Rules shall be subject to revision by a Single Judge upon the application of the party aggrieved.

(b)

Such applications for revision under sub-rule (a) shall be made, under otherwise specifically provided for, within 15 days from the date of the Order complained of or such extended time as the Court may permit.

Powers under section 152, Civil Procedure Code.—The Registrar-General, Registrar, Deputy Registrar or Assistant Registrar may exercise all the powers of a Court under section 152 of the Civil Procedure Code in respect of their own orders.

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20 3.9

What Officer can administer oaths.—The Registrar-General, Registrar, Deputy Registrar, Assistant Registrar or Section Officer may administer oath and solemn affirmations to deponents making affidavits.

SECTION B: ACCOUNTS AND RECORDS

3.10 Separate books to be kept for each year.—The Officers of the Court and the Sheriff shall keep for every year separate books for their respective offices for the several businesses belonging thereto. 3.11

Keeping of records.—Each Officer of the Court shall safely keep all records and muniments, and shall class them in regular order so that recourse may be speedily had thereto.

3.12

Account of stamps.—The Officers of the Court shall keep an account of all stamps cancelled in their respective offices, specifying the value thereof.

3.13

Receipts of documents by officers.—The Officers of the Court shall not receive any pleading, petition, affidavit or like document on the file (except original exhibits), unless the same comply with the provisions of {rules XXand XX}.

3.14

No officer to be Receiver or Guardian without previous sanction.—No officer of the Court shall accept the office of receiver or guardian of the property of a minor in any suit, matter or appeal without the previous sanction of the Chief Justice.

3.15

No Officer or Sheriff or Advocate to be surety or bail.—No Officer of the Court or the Sheriff or any Advocate or any of their deputies, assistants or clerks, shall be a surety in any cause or matter in the Court, nor shall any such person as aforesaid (other than an Advocate) be bail for any prisoner committed for trial at the Court or admitted to bail by the Court.

3.16

Consequences of default in payment of fees.—If an Advocate or party in person fails to pay fees chargeable under the rules of

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21 the High Court, the head of the office may, in his discretion, decline to receive any fresh document from such Advocate or party in person and/or decline to hear him any further in the matter until the sums due to the office are paid. 3.17

Late payment when deemed to be made.—When an amount is tendered in the Court. on any day after 4.00 p.m., but is not accepted by the office concerned and is paid into the said office on the next working day between 11.00 a.m. and 4.00 p.m., the payment shall be deemed to have been made on the day on which the tender was made.

SECTION C: RECEIPTS AND PAYMENTS BY OFFICERS OF THE COURT; WITHDRAWALS

3.18

Time for making cash deposits in court.—Deposit in cash will not be accepted by any of the officers of the High Court after 4.45 p.m. on week days and after 1:30 pm on Saturdays.

3.19

Applications for withdrawals of securities or moneys lying with High Court Officers.—Every application for an order for withdrawal of Government and other securities or for withdrawal of moneys in the hands of the Officer designated by RegistrarGeneral, the Commissioner for taking accounts, the Accounts Officer, High Court, the Sheriff or a Receiver shall be supported by an affidavit, entitled in the matter, showing the right and interest of the party applying, and shall be accompanied by the certificate of the Officer in whose hands such securities or moneys may be, certifying the amount of cash and particulars of the securities in his hands. All payments shall be by a/c payee cheques in the name of the party by whom or on whose behalf such an application is made.

3.20 Application for issue of Certificate.—The certificate mentioned in the last preceding rule may be obtained on addressing a letter to such officer, requesting the issue of such certificate and stating the interest of the party and the object for which the certificate is

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22 required. The letter shall be signed by the party interested in such securities or moneys or by his Advocate on record. 3.21

3.22

Withdrawal of the amount by minors permanently residing outside Mumbai on attaining majority and in certain other cases.— (a)

A minor who permanently resides outside Mumbai, may, on attaining majority, send to the Office of the Accounts Officer an Affidavit in English or Marathi duly affirmed by him or her at the place where he or she resides, annexing thereto the proof of his or her date of birth and also an advance receipt duly signed by him or her and identified by an Advocate practicing in the locality where he or she resides or by a Notary for payment of the amount due and payable to him or her.

(b)

The Accounts Officer shall, on receipt of such Affidavit make a report to the Registrar-General or an officer designated by him, who may pass such orders thereon for payment on such terms and conditions as he deems fit and proper.

(c)

The Accounts Officer shall, within no more than 48 hours of the Order for payment being made by the RegistrarGeneral, send the payment by an Account Payee Cheque drawn in the name of the Applicant by Registered Post, acknowledgment Due, after deducting therefrom the requisite registration charges.

(d)

On receipt of the necessary affidavit from the applicant concerned, the Head of the Department concerned of the High Court shall make a report to the Registrar-General or the officer designated by him in this behalf, and the Registrar-General may, by order, permit withdrawal of the amount due to the applicant on such terms and conditions as he deems fit.

No cheques to be issued in the name of the Advocate.—No officer of the High Court shall issue any cheque for refund, withdrawal or for any other purpose in the name of any Advocate

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23 but shall issue the same only in favour of the party entitled thereto. 3.23

Investment of amounts deposited.—All amounts deposited and exceeding the limits prescribed periodically by the Court shall be invested without any order being necessary within two courtworking days for such period and on such terms and in such manner as may be prescribed by administrative directions from time to time; and if no directions are made or are applicable regarding the period of such deposit or the renewal thereof then for a period of one year with a provision for automatic renewal for like periods pending further orders of the court.

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24

CHAPTER 4 COURT SESSIONS, RECESSES AND CLOSED DAYS

4.1

Court Sessions, Recesses and Closed Days.— (a)

There shall be three sessions for the working of the High Court and its offices, viz.,: (1) the first session from January of each year till the summer recess; (2) the second session from June of each year to the Diwali recess; and (3) the third session from the end of the Diwali recess to the December recess.

(b)

The High Court and its offices will be in recess three times every year, i.e., the May recess, the Diwali Recess in October/November and the December recess.

(c)

Each session and each recess shall begin and end on such days as the High Court may direct.

(d)

Days when closed.—The High Court and its Offices will be closed on such days as the Court may direct. A list of such days when the Court is closed shall be notified in the Maharashtra Government Gazette.

4.2

Applications during Court Recess and when Court closed.— Whenever any application is to be made to the Court when it is in recess or closed, the party or his Advocate on record shall give notice thereof as prescribed by these Rules to the RegistrarGeneral or the officer designated by him, whose duty it is to attend to such application.

4.3

Matters to be dealt with by a Single Judge during Court Recess and when Court closed.—Notwithstanding anything contained in these Rules, a Single Judge may, during a Court recess or when it is closed or not in session issue a Notice, admit

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25 or grant ad-interim orders in any urgent matter, civil, criminal or Constitutional, Original or Appellate, even when ordinarily such orders are required to be passed by a Division Bench. Such adinterim Orders shall be placed before the appropriate Division Bench for further consideration immediately on re-opening of the Court. PROVIDED HOWEVER that a Single Judge sitting in the Court Recess or when it is closed may not finally dispose of any matter required to be decided by a Division Bench.

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26

CHAPTER 5 AFFIDAVITS

5.1

Title of affidavits.— Every affidavit shall be entitled in the matter or proceedings in which it is affirmed, but in every case in which there are more parties on either side than one, it shall be sufficient to state the full name of the first party on the side in question, and to add that there are other parties on that side, as the case may be.

5.2

Form of affidavit, affirmation/swearing, etc.—The Rules applicable to filings as to form, formatting, swearing and or affirmation shall apply mutatis mutandis to Affidavits provided that

5.3

(a)

it shall not be necessary in any Affidavit to set out the reliefs sought;

(b)

Every affidavit shall be drawn up in the first person;

(c)

The full name, nationality, occupation and the place of residence or ordinary place of business of every person making an affidavit shall be mentioned inserted therein;

Affidavit by two or more deponents.— In every affidavit made by two or more deponents, the full names of the several persons making the affidavit shall be inserted in the jurat or opening declaration, except that if the affidavit of all the deponents is sworn/affirmed at one time before the same officer, it shall be sufficient to state that it was sworn/affirmed by both or all of the “abovenamed” deponents.

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27 5.4

Affidavit by blind persons.—Where an affidavit is sworn by any person who appears to the Officer administering the oath or affirmation to be blind, the Officer shall certify at the foot of the affidavit that the affidavit was read or read and interpreted (where necessary) in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent subscribed his signature or mark in the presence of the Officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent.

5.5

Procedure when affidavit is to be sworn outside India.—When an affidavit is to be sworn at any place outside India where an Officer in the service of India cannot be found, such affidavit may be sworn before an officer appointed specially for the purpose.

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28

CHAPTER 6 INTERIM APPLICATIONS

6.1

Interim Applications:—All applications for interim relief in any matter shall be filed and numbered in the registry as Interim Applications in the main proceedings. Every such application, after description of parties, shall state in bold letters as to under which provisions of law the Interim Application has been filed.

6.2

Interim Applications to appear on Board.—All Interim Applications shall be listed on the date assigned by the Registry provided that the Court may, in its discretion and on an application made by precipe specifying the urgency and need for urgent reliefs, direct such Interim Application to be taken up on any earlier date. At least 48 hours’ notice shall be given by the party seeking such urgent reliefs to the opposite parties. Nothing in this rule shall preclude any Court from passing an ex-parte order in appropriate cases.

6.3

Applications in Execution, etc.—Applications for confirming sales in execution, or under a decree, whether held by the Sheriff or by the Commissioner for taking Accounts or by the Receiver shall also be by way of Interim Applications.

6.4

Interim Applications to be heard by Court hearing principal matter.—All Interim Applications be heard by the Court to which the principal matters are assigned.

6.5

Form of Interim Application.—Every Interim Application shall be in the same form as a petition setting out therein a brief statement of the relevant facts, the grounds in support of such application, a specific reference to the provision of the Code of Civil Procedure, 1908, these Rules or any other law under which it is made, prayers in the form of reliefs sought; and shall be

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29 signed, verified and affirmed in the same manner as a Petition. No separate Affidavit in Support of such Interim Application shall be required. 6.6

Signed undertaking required.—Every Interim Application shall, in addition to the above, contain, in the body of the Interim Application, a signed statement of the party making such Application undertaking to pay such sum by way of damages or costs as the Court may award as compensation in the event of a party affected sustaining prejudice by any order that might be made on such Interim Application. The Court may, in its discretion, while making the order on the Interim Application dispense with undertaking.

6.7

Notice to opposite party.—Notice of any Interim Application shall be given by the party making the application to the opposite party and shall be not less than seven days before the returnable date of such Interim Application, unless otherwise provided by the Court.

6.8

Filing of reply by the Opponents/Respondents named in the Interim Application.—The Opponent(s)/ Respondent(s) shall file his/their Affidavit or Affidavits in Reply, if any, together with copies of documents on which they rely no later than three days prior to the date fixed by the Court in the notice or on any subsequent dates to which the proceedings have been adjourned with the leave of the Court.

6.9

No Affidavit in Rejoinder without leave.—No Affidavit in Rejoinder shall be filed without leave of the Court.

6.10 Procedure at the hearing of the application.—All the applications under these rules be decided on the basis of affidavits of the parties. 6.11

Powers of Officer designated by Registrar-General to decide Interim Applications.—The High Court may by general or special notification confer the power of the Court to decide certain interim applications on the Registrar-General.

6.12 Adjournment of matter to Court.—Any party desiring to have any question to be decided by the Registrar-General, whether

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30 disputed or not, adjourned to Court, may apply to the RegistrarGeneral for such adjournment within 15 days from the passing of the order. If the application is within time, the Registrar-General shall adjourn the matter and list it before the Court assigned to hear such matters. If the party makes the application after the said period of four days, the Registrar-General may adjourn the matter to Court if he is satisfied that the party had sufficient cause for not making the application in time. The RegistrarGeneral may also suo-motu adjourn any matter to Court. 6.13

Interlocutory orders passed not to be drawn up.—Orders made on interim applications shall not be drawn up.

6.14 Drawing up of orders required to be drawn up as decrees.— (a)

The provisions of the Code of Civil Procedure, 1908 relating to drawing up of decrees shall apply mutatis mutandis to orders required to be drawn up as decrees.

(b)

Drafts of such drawn up decrees shall be posted on the High Court Website under the Case Status section and shall also be emailed to the Advocate on Record or the Party concerned to the email address provided and shall also be put up on the notice board of the decree department.

(c)

Any Advocate or party may inspect such draft in the Decree Department on an oral application.

(d)

If no objection is raised by the Advocate or party concerned to the form or contents of the drawn up decree or order within the time fixed for the same, the draft shall be settled and finalized by the officer designated for that purpose.

(e)

Any Advocate or party dissatisfied with the finalized drawn up decree or order may apply to the Registrar-General within one week of the date of finalization to have the same placed before Court, failing which the finalized and settled draft shall be deemed to have been accepted. If the draft is so placed before the Court, any variation made by the Court shall forthwith be incorporated in the draft.

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31 (f)

All final drawn up decrees and orders shall be signed by the Registrar (OS)/Prothonotary & Senior Master or by a designated officer, and shall bear the seal of the Court.

(g)

Orders passed by a Court which have not been signed by the Judge and which have been ordered to be drawn up; and all orders passed by the Registrar-General and ordered to be drawn up, shall be signed by the RegistrarGeneral and shall bear the seal of the Court.

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32

CHAPTER 7 TAXATION, COSTS AND FEES

7.1

Fees & Taxation:—Advocates’ fees, taxation, process and other fees shall be computed and levied in the manner and on the rates specified for the time being in {Schedule YY} to these Rules.

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CHAPTER 8 SERVICE

8.1

Forms of Service.—There shall be two forms of service of all notices, intimations and proceedings, viz., (1) through Court; and (2) private notice.

8.2

Responsibilities for Effecting Service.—

8.3

(a)

In all civil matters, it shall be the responsibility of the Joint Civil Judge, Junior Division and, in the case of Mumbai, the Principal Judge of the Court of Small Causes, to ensure the service of all notices, summons, processes, orders, warrants, decrees and intimations and proceedings sent through Court.

(b)

In all criminal matters, the responsibility to ensure the service of all notices, summons, processes, warrants, orders, intimations and proceedings sent through Court for the same shall be that of the Judicial Magistrate First Class, and, in Mumbai, the Chief Metropolitan Magistrate; and such Magistrate shall be entitled to avail of assistance from the local police for the purpose of effecting such service.

Modes of Service.— (a)

For each form of service, the mode of service and the time for the same shall in accordance with {Schedule YY} to these Rules as amended periodically.

(b)

The modes of service may include by Registered Post A/D, by courier/s approved by the High Court and by such other means as may be prescribed from time to time.

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34 8.4

Court Notices to be put up on High Court Website.— Regardless of jurisdiction and the nature of the matter, all notices issued through Court shall be put up on the High Court website on a special section dedicated to such notices. For convenience, the said section may be sub-divided into such hierarchically lower divisions as may be practicable. All Court notices shall be indexed and shall be searchable. A permanent searchable archive of all Court notices shall be maintained. Publication on the High Court website shall not be deemed to be good service PROVIDED HOWEVER that a Court may take the online availability of such notice into account in any matter in its discretion while deciding whether any party had or should be deemed to have had sufficient knowledge of the matter contained in such notice.

8.5

Service by Email.— (a)

Email service acknowledged by digital private key pairs.—Where any private service by email is acknowledged by digital key encryption, private key pairs or digital certificates as provided in the Information Technology Act, the same shall be accepted as proof of service provided that all necessary particulars of such digital certification are set out on Affidavit along with complete annexures evidencing the same.

(b)

Ordinary email service.—Service by ordinary email shall not be accepted as proof of service or proof of despatch UNLESS the party to whom such email is addressed appears before the Court on the date specified in such service/notice and acknowledges receipt; in which case the said service by email shall be accepted as good service and shall be deemed to have been proved; and such acknowledgement shall be specifically noted in the roznama of the proceedings at the hearing of the matter.

(c)

Ordinary email service where chain of email correspondence is shown to exist.—In any matter in which reference is made to a previous chain of email correspondence, any party may apply to the Registrar-

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35 General for leave to effect service by ordinary email. Such application shall state that the same is made under this Rule. The party seeking such leave shall annex to the application copies of sufficient supporting material evidencing the previous chain of email correspondence and shall also state the email address on which service is proposed to be effected; and the said email address sought to be served shall be one of those appearing in the previous chain of email correspondence. The party making the said application shall also state that to the best of his knowledge, information and belief the said email address is operational till not less than 30 days before the date of such application. On such email service being effected, and affidavit of service to that effect being filed as required by these Rules, the Court may, or if the party served appears and acknowledges receipt, shall, accept such email service as sufficient proof of service and proceed with the matter. PROVIDED THAT

8.6

(i)

in any matter if it is brought to the notice of the Court that service has not in fact been effected on such email address, or that an incorrect email address was stated in the aforesaid application or for any other sufficient reason no service was effected, and the party making the application has obtained an order on the basis of such service having been effected, then the Court may set aside or recall such order, or pass such other order as it deems fit (including as to the imposition of costs).

(ii)

Where, in such previous chain of email correspondence, there are multiple persons with distinct email addresses shown to be corresponding on behalf of the party sought to be served, then email service shall be effected on all such email addresses which are known to be recently active in the past three months.

Affidavit of Service.—Every Affidavit of Service, where required to be made either by these Rules or by an order of a Court, shall

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36 be in {Form No.VV} to these Rules and shall be filed in the Registry at least three days before the returnable date of the mater and the Registrar-General will verify the contents of such Affidavit of Service for accuracy and completeness regarding the factum of service. PROVIDED THAT where such an Affidavit of Service is required to be made by an order of the Court or by these Rules, and such Affidavit of Service is not made and filed with the Registry within the specified time or, in leave for late filing has been taken, at least 24 hours before the date fixed for hearing, the party required to make such Affidavit of Service shall not be entitled to be heard. 8.7

Service of Appeals, Applications and Petitions deemed to be waived in certain cases.—In any Petition, Appeal or Application, where a party has appeared before the Court on a Private Notice or a Court Notice, it shall not be necessary for the Petitioner, Appellant or Applicant as the case may be to serve the same proceedings afresh, and in every such case, notice shall be deemed to have been waived without an order of the Court; PROVIDED HOWEVER that the Court may, in its discretion, order or direct the service of notice as per these Rules;

8.8

Service of Rule Nisi deemed to be waived where Respondent appears at admission stage.—

8.9

(a)

In every Petition in which Rule Nisi may be issued by a Court, where a Respondent has appeared before the issue of such Rule Nisi, the service of Rule Nisi shall be waived by such Respondent without an order of the Court;

(b)

Where all Respondents have appeared before the issue of such Rule Nisi, the drawing up of the Rule Nisi shall be deemed to have been dispensed with;

Substituted Service.— (a)

Where an order for substituted service is made by any Court, in addition to the existing modes specified in {Schedule YY} for the same, a copy of the notice shall also be specifically posted on the separate, designated section

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37 of the Bombay High Court Website intended for that purpose. (b)

The party or Advocate obtaining the order for substituted service shall furnish a signed hard copy as well as a soft copy of such notice to the designated officer and the designated officer will cause such notice to be published on the Bombay High Court Website’s section for substituted service.

(c)

Expired notices published on the Bombay High Court website shall be permanently archived and shall be searchable and printable.

8.10 Writ of summons and other process not to be served on Saturdays, Sundays and holidays.—No writ of summons or other process shall be served or executed on Saturdays, Sundays, and Holidays, except by leave of the Court. 8.11

Service at advocate’s address not to be effected after 6:00 p.m.—No writ of summons or other process shall be served at the address furnished by an Advocate for service after 6:00 p.m. on week days.

8.12

Service on Advocates.—

8.13

(a)

When service is to be effected on an Advocate, such service may be effected on the Advocate or on his assistant or clerk.

(b)

When service is to be effected on a firm of Advocates, such service may be effected on any partner or assistant or clerk of such firm.

Translation of process to be served on person not knowing English.— (a)

When a summons or other process has to be served or executed, the Advocate at whose instance the summons or other process is issued shall certify whether the person to be served is conversant with the English language. If such certificate is not given, the authority or person effecting service or execution shall also serve such person with a

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38 true translation of the summons or other process in the language with which such person is familiar: PROVIDED THAT where the person to be served is not familiar with English, Marathi, Gujarati or Hindi, it will be sufficient to serve such a person with a translation of the summons or other process in Hindi. (b)

Where it is necessary to affix a warrant or order of attachment on the house, land or tenement of any person for the purpose of executing such warrant or order of attachment, the authority or person effecting service shall if such person is not certified as specified in clause (a) also cause to be affixed in some conspicuous place on the premises a true translation of the warrant or order in the language with which such person is familiar, and the proviso to clause (a) will also apply.

(c)

Sub rule (a) will also apply, mutatis mutandis, to service of an Interim Application.

8.14 On receipt of precept, warrant of attachment to issue.—Where under section 46 of the Code of Civil Procedure, 1908, a precept is received by the Officer designated by Registrar-General, he shall forthwith issue the appropriate warrant of attachment and forward it for execution in the manner specified and to the person or authority designated under these Rules.

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CHAPTER 9 COMPUTATION OF TIME

9.1

Computation of time.—In all cases in which any particular number of days not expressed to be “Clear Days” prescribed by these Rules or any practice of the Court, and not coming under the Statute of Limitations, the same shall be reckoned exclusive of the first day, and inclusive of the last day, unless the last day shall happen to fall on a Sunday or other day on which the offices are closed, in which case the time shall be reckoned exclusively of that day also, and any succeeding day or days on which the offices continue to be closed; PROVIDED THAT Written Statements due when the court is in recess or is closed may be filed on the day the Court re-opens.

9.2

“Month” means calendar month.—Where by these Rules, or in any decree or order, time for doing any act or taking any proceedings is limited by months, and where the word “month” occurs in any document which is part of any legal procedure under these rules, such time shall be reckoned as meaning 30 days for each month, unless otherwise expressed.

9.3

Time for giving security for costs when not to be reckoned.— The day on which an order for security for costs is served, and the time thence forward until and including the day on which such security is given, shall not be reckoned in the computation of time allowed to plead, answer interrogatories, or take any other proceedings in the suit or matter.

9.4

Power of Court to enlarge or abridge time.—Any application for enlargement of time whether under Section 148 of the Code of Civil Procedure, 1908 or any other law for the time being in

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40 force may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed. 9.5

No enlargement of time by consent of parties.—The time for service, effecting amendments permitted by the Court, for filing any document or for any other purpose for which is a time is prescribed by these Rules or the Code of Civil Procedure, 1908 as the case may be, may not be enlarged by consent of parties.

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CHAPTER 10 JUDGMENT, ORDER, DECREE & ROZNAMA

10.1 When judgment to be taken as ready.— (a)

Where Judgment has been reserved in a case heard by a Division or Special Bench consisting of two or more Judges, and all of them are not available for sitting together at one place, such judgment may be pronounced by any of the Judges, who heard the case after the transcript or the transcripts of the Judgment has or have been initiated by all the Judges who had heard the case.

(b)

A Judgment delivered by this Court, when initialled by the Judge pronouncing it, either on the transcript of the Judgment or on the approval sheet attached to it shall be the final judgment of which copies could be supplied to the parties or their Advocates unless the Judge delivering it desires that he wants to have a fair copy of the Judgment for approval. In the latter event, the Judgment shall be considered to be final when the fair copy is approved and initialed by the Judge.

(c)

Where judgment has been reserved by a Judge sitting single and the judge is unavailable to sit at the place where the matter was heard, the Single Judge may pronounce judgment via a video conferencing link in the facility provided by the High Court.

(d)

Where judgment has been reserved by a larger Bench of two or more Judges, and all of the Judges of the larger Bench are unavailable for sitting together at one place, such judgment may be pronounced by one or more of the Judges comprising the larger Bench with the other Judge or

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42 Judges joining by video conferencing link in the facility provided by the High Court; (e)

The video conferencing facility room shall, for the purposes of pronouncement of judgment, be deemed to be a Court.

10.2 Procedure when Advocate wishes to keep judgment before the Court for speaking to minutes.—Whenever an Advocate wants a judgment to be kept before the Court for speaking to the minutes, he shall file a note in the Office showing the points on which he wants to speak to the minutes and he shall also serve a copy thereof on the Advocate for the other side. 10.3 Procedure for preparation of decrees.— (a)

The Office shall prepare the draft of the decretal order on the Farad within a period of 15 days from the date of receipt of papers and proceedings together with the original judgment and order duly signed by the Judge/Judges and the bill of costs. The draft of the decretal order and the bill of costs together with the copy of the judgment shall be sent to the Advocates’ Room for the approval of the Advocates concerned and notice in that behalf shall also be put up in the Advocates’ Room.

(b)

If the draft decretal order and the bill of costs prepared by the Office is approved by the Advocates, the Advocates shall attest them in token of their correctness.

(c)

If the Advocates do not approve the draft decretal order or the bill of costs or require any clarification or correction in the judgment of the Court, they shall put in their notes slating specifically the grounds of their objection and the clarification or correction they require, and serve a copy thereof on the other side.

(d)

If the Advocates, fail to attest the draft decretal order of the bill of cost or to suggest any clarification or correction in the judgment within seven days from the date on which the matter was sent to the Advocates’ Room and notified as above, the Deputy Registrar shall sign the decree and the

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43 Taxing Officer and the Deputy Registrar shall sign the bill of costs. (e)

No amendment to the decree or the bill of costs shall be made after the decree is signed by the Deputy Registrar except upon a regular application in that behalf. The Deputy Registrar may, however, correct any clerical or arithmetical mistakes in decrees or orders which are brought to his notice.

10.4 Objections to draft decretal order and bill of costs.— Objections to the draft decretal order shall be decided by the Deputy Registrar and objections to the bill of costs by the Taxing Officer, after hearing the Advocates or the parties, if necessary. An Advocate or party dissatisfied with the decision of the Deputy Registrar or the Taxing Officer shall immediately file a note for placing the matter before the Court for revision of the impugned order. When such a note is filed, the decree shall not be signed until the decision of the Court. 10.5 Date on decree.—The decree shall ordinarily bear the date on which the judgment of the High Court was pronounced, The decree shall also show the date on which it is signed by the Deputy Registrar. 10.6 Supply of Stamp paper for decree which is required to be engrossed on such paper. (a)

All matters in which the question of liability of the decree for payment of stamp duty is likely to arise shall be referred by the Office to the Taxing Officer. The Taxing Officer shall decide whether the decree is liable for stamp duty and also determine the quantum of stamp duty payable. If in the opinion of the Taxing Officer, there are no sufficient materials on record to determine the stamp duty or if the Collector to whom reference for adjudication has been made under sub-rule (ii) below requires any particulars or evidence for determining the stamp duty, the Taxing Officer may require any party to furnish by affidavit or otherwise such particulars or evidence as he or the Collector, as the case may be, require for determining the

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44 stamp duty. Such particulars or evidence shall be furnished by the party, directed to do so, within one month from the date of the receipt of the letter asking for the same. (b)

When the Taxing Officer decides that the decree is liable to payment of stamp duty and also decides the quantum of stamp duty payable the party liable to pay the stamp duty or his Advocate shall supply the necessary stamp paper for engrossing the decree within one month from the date of the decision of the Taxing Officer. If the decision of the Taxing Officer is disputed, the party disputing it shall, within 14 days from the date of the decision of the Taxing Officer, deposit the prescribed fee for obtain in adjudication from the Collector.

(c)

In matters which are referred for adjudication of the Collector, the necessary stamp paper shall be supplied by the party liable to pay the stamp duty within one month from the date of Intimation given by the Office of the receipt of the adjudication from the Collector.

(d)

Any party interested in the decree may pay the entire stamp duty by supplying in full the necessary stamp paper. If the party so requires, the matter may thereafter be placed before the Court for orders or directions regarding apportionment of the stamp duty and the payment of the proportionate shares to the party who has supplied the said stamp paper. Such orders or directions shall* unless otherwise directed by the Court, be incorporated in the decretal order of the proceeding.

(e)

The Registrar may extend the time prescribed in sub-rules (i) and (ii) above or excuse delay for a period not exceeding 14 days in respect of adjudication and one month in respect of supply of stamp paper or necessary information or evidence.

(f)

If the adjudication fee or stamp paper, for the decree being drawn up, or the particulars or evidence, required by the Taxing Officer under sub-rule (i) above, are not supplied within the time prescribed above or within such time as

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45 may be allowed by the Registrar, the papers shall be filed without any decree being drawn up.

Decrees and Orders passed in Court 10.7 Interlocutory orders passed in Court not to be drawn up.— (a)

It shall not necessary to draw up Orders made in interlocutory roceedings unless the Court or the Prothonotary and Senior Master otherwise directs.

10.8 Drawing up decrees and orders passed in Court.— (a)

A Decree passed in Court, an Order made in Court other than an Order on an interlocutory application, and an Order made in Court on an interlocutory application which has been directed under the last preceding rule, shall be drawn up by the party initiating the proceeding, unless the Court otherwise directs. Such party shall lodge the draft of the Decree or Order, for settlement in the office of the Prothonotary and Senior Master within four weeks from the date of the original Judgment or Order being available and shall apply to fix a time to settle the draft. Such party shall forthwith forward copies of the draft to all parties who have appeared at the hearing of the suit or matter. The office of the Pothonotary and Senior Master shall check the draft and make such alterations in the draft as it may consider necessary and warranted by the directions of the Court. After the draft is checked, the office of the Prothonotary and Senior Master shall fix a date for setting the draft but ordinarily not earlier than ten days after the date of the lodging of the draft but within four weeks from the date of the lodging. A notice shall be put up on the notice board of the Decree Department intimating to the parties the date fixed for settlement of the draft. No other notice shall be given of the date so fixed, except that when a party has appeared in person, the party lodging the draft shall send notice of the meeting to him. Any party desiring to inspect the draft as checked by the office shall be

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46 entitled to do so on making an oral application to the person in charge of the Draft section of the Decree Department. The draft shall be finally settled by the Prothonotary and Senior Master or by any one of his assistants. If any part fails to attend the meeting for settlement of the Draft, the concerned Officer shall proceed to settle the Draft not withstanding such absence. (b)

If the party whose duty it is to draw up the decree or order does not lodge the draft in the office of the Prothonotary and Senior Master within ten days from the date of the decree or order, it shall be open to any other party to the proceeding to draw up and lodge such decree or order. Then the procedure prescribed in sub-rule (1) shall be followed.

(c)

In case the party initiating the proceeding is a party in person, the decree or order shall, at his request, be drawn up by the office of the Prothonotary and Senior Master. The Office shall give notice of the draft being ready to the party in person and shall put up a notice on the notice board of the Decree Department intimating the date fixed for the settlement of the draft. Any party desiring to inspect the draft shall be entitled to do so on making an oral application to the person in charge of the Decree Department. The draft shall be finally settled by the Prothonotary and Senior Master or by any one of his assistants.

(d)

Any party dissatisfied with the draft as settled by the office of the Prothonotary and Senior Master may, within two days from the date of settlement of the draft, apply to the Prothonotary and Senior Master to place the matter before the Court for settlement of the draft. If no such application is made, the draft is settled by the office of the Prothonotary and Senior Master shall be deemed to have been accepted. If such application is made, any variation made by the Court shall be incorporated in the draft.

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47 (e)

Decrees and orders passed in Court shall be signed by the Prothonotary and Senior Master or by one of his assistants and sealed with the seal of the Court.

10.9 Drawing up decrees in urgent cases.—In cases where it is necessary that the decree or order should be urgently drawn up any party may draw up the decree or order an lodge the draft in the office of the Prothonotary and Senior Master and apply to fix an urgent meeting to settle the draft of the decree or order. Such party shall forward copies of the draft to all other parties who have appeared at the hearing of the suit or matter and shall give intimation to them of the time fixed by the office of the Prothonotary and Senior Master for settling the draft of the decree or order. 10.10 Prothonotary and Senior Master may proceed ex-parte.—If any party fails to attend before the Prothonotary and Senior Master at the time of settling the draft of a decree or order or fails to produce his briefs or any documents called for by the Prothonotary and Senior Master, the Prothonotary and Senior Master may proceed to settle such draft in his absence or without the production of the briefs or documents aforesaid, or may require the matter to be mentioned to the Court. 10.11 Draft decree or order may be submitted to Court.—In cases of doubt or difficulty, the Prothonotary and Senior Master may submit the draft of the decree or order to the Court which who passed the decree or order. 10.12 Errors, how rectified after decree or order is sealed.—After a decree or order has been sealed, any application to rectify an inaccuracy or clerical or arithmetical error shall be made to the Prothonotary and Senior Master and he may, in his discretion, after notice to the parties when he deems it necessary, rectify such inaccuracy or error. The Prothonotary and Senior Master may, if he thinks fit, place the matter before the Court which passed the decree or order or in the event of his absence on leave or retirement before any other Judge and the Judge may, in his discretion, after notice to the parties when he deems it necessary, amend the decree or order so as to bring it in conformity with the judgment or rectify such inaccuracy or error.

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48 10.13 Applications for return of exhibits must be made within ten days.—Applications by parties or their Advocates for the return of exhibits put in at the hearing shall be made within ten days after the time for appealing against the decree in the suit has expired, or in case an appeal is filed within ten days after the disposal of the appeal. 10.14 Return of exhibits.—Documents, not directed by the Judge who has heard a suit or proceeding to be retained, will be returned by the Prothonotary and Senior Master on the expiration of the time for appealing (if no memorandum of appeal has been filed) unless cause to the country appears or they are of the nature specified in the fourth proviso to Order XIII, rule 9 of the Code of Civil Procedure. 10.15 Roznama of Proceedings (a)

There shall be a diary or index of proceedings called the Roznama. It shall be maintained in the manner and form specified in the following sub-rules. (i)

The Roznama shall clearly show the course of a suit or case from the beginning to the end in chronological order.

(ii)

It shall show in a concise form the progress of the suit or proceeding from day to day. The reasons for every adjournment shall also be stated.

(iii)

The Roznama shall be a faithful, complete and concise history of the case and of all proceedings taken in it.

(iv)

It shall contain the date of the delivery of the Judgment, of the signing of the decree and of any application for review of judgment, for amendment of the decree or for final decree.

(v)

It shall show in chronological order all proceedings subsequent to the passing of a preliminary decree, if any, and also contain a note of other proceedings, such as Commissioner’s report, if any.

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49 (vi)

An entry shall be made in the Roznama stating whether all witnesses summoned or present have been examined and if any such witness has not been examined, the reason for not doing so.

(vii) The Roznama shall be kept from day to day as an original document by the Associate and must always remain in File ‘B’ (see Chapter 15 ‘Destruction of Records’). Entries other than those made at the time of institution of the suit or proceeding shall normally be signed by the Judge. (viii) Every document admitted in evidence and recorded shall be mentioned in the Roznama in chronological order. The description of the document and the date of the document according to the Gregorian Calendar should also be mentioned in the Roznama. (ix)

The name of the Presiding Judge shall be written in the Roznama when a case is filed, and when it is taken up by another Judge his name shall also be entered.

(x)

The notice prescribed by Rule I of Order XX where Judgment is served or postponed shall be set out in the Roznama.

(xi)

The category of the Files (A, B, C or D; see Chapter 15 ‘Destruction of Records’) in which each paper or document mentioned in the Roznama is kept, shall be noted in red ink or pencil in the margin of the Roznama against each paper or document.

(xii) Similarly, a note as regards the return or loss or destruction of a document shall be made in red ink in the Roznama. (xiii) Before transmitting the record to the central record room, the Associate shall verify and make an endorsement mentioning that the documents are properly classified and kept in the appropriate files

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50 A, B, C or D (see Chapter 15 ‘Destruction of Records’) (xiv) The existing practice of minutes book or farad shall be stopped and Roznama be written instead of minutes or farad. (b)

The Roznama shall be also be made available on the Case Status information section for each case on the Bombay High Court website, and shall be updated periodically and, in any event, within 24 hours of the last entry made in the Roznama.

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51

CHAPTER 11 SEARCH AND COPIES

11.1

Contents of search application.—An application for search shall bear the court-fee stamp of the prescribed value and shall state precisely the number of the proceeding the record of which the search is sought; and if the application is for the search of a register prescribed by these rules, the description of and the year of the register.

11.2

Search in presence of officer and hours of search.—The search shall be made in the presence of an Officer of the Court between the hours of 11 a.m. and 4 p.m. on full working days and 11 a.rn. and 1.30 p.m. on Saturdays.

11.3

Application for search by third party to be supported by affidavit.—An application for search or certified copies presented by a person not a party to the proceeding shall be accompanied by an affidavit stating the grounds on which the search is required. The application may be rejected if the grounds thereof are considered insufficient or if sufficient cause is not made out; or may be granted on payment of prescribed fees and charges.

11.4

Assistant Registrar to deal with search applications.—All applications for search shall be dealt with by the Assistant Registrar.

11.5

Applications for supply of documents for copies— (a)

On a application bearing prescribed court-fee stamps the original papers in the record of any civil or criminal proceedings may be supplied to the Government Pleader or the parties or their agents for the purposes of taking

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52 copies, provided that the papers are kept under the control and supervision of an Officer of the Court. (b)

Documents shall be made available for taking copies during the hours prescribed above for taking search.

11.6

Applications for copies liable to stamp-duty.—All applications for certified copies liable to stamp-duty under Article 26 of Schedule I to the Bombay Stamp Act, 1958, shall be accompanied by the stamp-paper of the appropriate denomination.

11.7

Certified Copies.— Ordinary | Urgent (rates) Provided that the certified copies of any document shall be supplied free of cost to the Registrar when the same are required by him for the purposes of any prosecution or proceeding which is filed by him under the directions of this Court or under the administrative orders of the Honourable the Chief Justice or the Administrative Judges or for use in any proceeding in which he is or is made a party in his official capacity. (a)

N. B. All amounts excluding fractions of a rupee, if there be any shall be sent to the parties by Money Order after deducting Money Order Commission there from and the balance of the amount in fractions of a rupee shall be retained in Office after intimation to the parties on Money Order coupon that if the same are not collected either personally or through an Advocate the same shall be credited to Government after a period of one year.

11.8

Rates for Search.— The rates payable for search and copies shall be as prescribed from time to time in Schedule XX hereto.

11.9

Search and certified copies of documents to a party to suit or matter.—The Prothonotary and Senior Master shall, on the application of any party to a suit or matter, allowed search or grant certified copies of all papers and proceedings in the suit or matter, on payment of the prescribed fees and charges. When the party applies for the certified copy of a part of a document on record, the Prothonotary and Senior Master shall grant such copy.

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53 11.10 Depost for certified copies.—The Court Fee Stamp as may be prescribed by the State Government, from time to time, hereinafter, under the Bombay Court Fees Act shall be affixed on the application for issue of Certified Copy. Every application for a certified copy of any Judgment, Decree or Order and Minutes of Order shall be accompanied by such deposit as may be prescribed. Any further charges that may be found to be due shall be paid before the copy is furnished. If the amount deposited is found to be in excess of the actual charges, the excess shall be returned when the copy is furnished: Provided that, no such deposit shall be necessary when the application is made by or on behalf of the State of Maharashtra or the Union of India but on the undertaking of the Advocate concerned that charges will be paid irrespective of whether the certified copies are eventually collected or not. 11.11 Charges for certified copies.— (a)

The rates for obtaining the certified copies of documents shall be as set out in the table at Appendix NNN to these Rules.

(b)

When Advocate or a party applies for more than one certified copies of any document, he may also state in the application itself, whether he requires carbon copies of the said document. In such cases, the Office shall issue to him a maximum of five carbon copies ( in addition to the original certified copy at full rates) and shall charge for each such carbon copy one fourth of the fee prescribed for a single certified copy of the document in question with a minimum of 15 paise.

11.12 Application to state whether copy is required for private use or otherwise.— Every application for a certified copy shall state whether the copy is required for the private use of the person applying for it or otherwise. When the certified copy is required for a purpose other than private use, the requisite Court fee under Articles 24, 25 and 27 of Schedule II to the Bombay Court Fees Act, 1959, shall be paid in addition to the fees prescribed by rule 270.

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54 11.13 Applications for copies liable to stamp-duty.—All applications for certified copies liable to stamp-duty under Article 26 of Schedule I to the Bombay Stamp Act, 1958, shall be accompanied by the stamp-paper of the appropriate denomination. 11.14 Private copies may be certified as true copies.—Copies of the Judgment or any document on record in any civil proceeding in this court may, on the orders of the Prothonotary and Senior Master, be certified as true copies, upon an application made in that behalf, provided that the copies sought to be certified are neatly typed on good paper. In such case, only comparing fees shall be levied according to the scale of fees prescribed. In no case xerox copies shall be so certified. 11.15 The above rules to apply to certain other offices.—The rules contained in this chapter shall, with any necessary modifications, apply to applications for search of proceedings and for certified copies of documents in the offices of the Commissioner for Taking Accounts, the Court Receiver, the Taxing Master, the Sheriff of Mumbai and the Accounts Officer.

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55

CHAPTER 12 OFFICE OF THE CHIEF TRANSLATOR AND INTERPRETER

12.1

Translators office to be in two parts and to be supervised by Officer designated by Registrar-General and Registrar.—The Office of the Chief Translator and Interpreter shall as far as possible, be divided into two parts, the one containing the names of those employed in work for the Original Side, and the other those employed in work for the Appellate Side. The Registrar(O.S.)/Prothonotary and the Senior Master will supervise the one, and the registrar the other, and all complaints shall be made to, and will be inquired into, by those Officers respectively.

12.2

Oath affirmation to Translator and Interpreter.—Every Translator and Interpreter including a Special Translator and Interpreter shall before his admission to office make an oath or solemn affirmation that he will translate and interpret correctly and accurately all documents given to him for translation or interpretation and that he will well and truly interpret and explain all questions put to witnesses and the evidence given by them.

12.3

Registers of work.—Registers shall be kept showing the work that is received (per folio of ninety words), the date of receipt, the date of completion, the number of folios done by each member of the office and the amount of fees paid.

12.4

Return of work.—A return showing the work done by the several members of each division shall be forwarded monthly to the officer supervising such division.

12.5

Unofficial Translation or Interpretation prohibited.—No Translator and Interpreter shall translate or interpret any

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56 document, whether relating to a High Court matter or not, unless it is officially accepted by the office of the Chief Translator and Interpreter for translation or interpretation. 12.6 Interpretation of documents to blind persons.—When a pleading, affidavit or any other document is required to be interpreted to a blind person, the Interpreter shall read and interpret the pleading, affidavit or document to the blind person in the presence of an Officer authorised to administer oaths. The said Officer shall certify at the toot of the pleading, affidavit or document that the pleading, affidavit or document was read and interpreted in his presence to the party concerned, that the said party seemed perfectly to understand it and that he subscribed his signature or mark to the document in question in the presence of the officer. No such pleading, affidavit or document shall be used in evidence in the absence of such certificate, unless the Court is otherwise satisfied that the document in question was read and interpreted to and appeared to be perfectly understood by the party concerned. 12.7

Interpretation of documents to deaf and dumb persons.— When a pleading, affidavit or any other document is required to be interpreted to a deaf and dump person who is able to read, write and understand any particular language, it shall be lodged for translation into the language known to such person. The said person shall be asked to read the translation and then sign the translation and the pleading, the affidavit or the document in token of his having understood and approved its contents. The translation shall remain in the office of the Chief Translator and Interpreter and shall be produced in Court, it required, In such cases the Chief Translator and Interpreter shall recover the translation charges and not the interpretation charges.

12.8

Interpretation out of office hours.—Where: (a)

A document is required to be interpreted out of office hours (whether in the Court House or outside the Court House), or

(b)

The attendance of an interpreter is required to interpret evidence at a de-bene-esse examination or at an

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57 examination on commission out of office hours, (whether in Court House or outside the Court House), a written application stating the place at which the interpreter is required to attend and the purpose for which he is required shall be made to the Chief Translator. The application shall be accompanied by a deposit of the interpretation charges and the fee for the interpreter’s attendance in cases where it is payable under the Table of Fees. On receipt of such application the Chief Translator shall, unless he sees any reason to the contrary direct an interpreter to attend. As far as practicable the Chief Translator shall require the interpreters to attend in rotation. 12.9 Rule 8 of this Chapter to apply to Special Interpreters.—Rule 8 of this chapter shall apply, with any necessary modifications to Special interpreters appointed under Rule 19 of this Chpater. 12.10 When documents sent for translation.—A party to a suit or matter shall, as soon as possible send to the Chief Translator’s office for translation into English any document not in the English language on which he intends to rely at the hearing of the suit or matter. If he fails to do so or sends the same so late that the translation is not ready when the case is called on, the Court may not allow the said document to be tendered in evidence and may proceed with the hearing of the suit or matter, or he may adjourn the hearing of the suit or matter and pass such order as to the costs of the adjournment and of the translation as he may deem fit. 12.11 Deposit to cover fees.—When a party in person or an Advocate lodges a document for translation or lodges an official translation of a process of the Court for the purpose of preparing certified copies of the translation, he shall deposit with the Chief Translator and Interpreter a sum sufficient to cover the fees for such translation or certified copies. 12.12 Procedure when reader’s assistance is required.— (a)

A Translator, who requires the assistance of a reader to read a document before translating if, may, with the permission of the Chief Translator and Interpreter, call

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58 upon the party concerned to provide a reader to read the document. The document shall be transcribed at the dictation of the reader by a clerk of the Chief Translator’s office. The said clerk shall sign the transcript. The reader shall also subscribe his signature to the transcript and shall make an affidavit that he knows the language of the document and that he has truly and correctly and to the best of his ability read the document. The transcript shall remain in the Office of the Chief Translator and Interpreter and inspection thereof shall be given to the opposite party on application by such party. The transcript shall be produced in Court, if required. (b)

The Translator shall make an endorsement at the foot the translation, stating that the document was read over to him and giving the name, address and occupation of the person by whom the document was read.

(c)

If the party fails to provide a reader as required, the Chief Translator and Interpreter may return the document untranslated.

12.13 Translation from dictation of reader when inadmissible in evidence.—No translation of any document translated by the Translator from the dictation of a reader shall be read in evidence at the trial of any defended cause unless before such trial notice shall have been given to the opposite party or his Advocate on record, in order to enable such party to attend the Chief Translator’s Office and verify the correctness of the transcript. 12.14 If transcript is incorrect costs of fresh translation.—If the transcript is found to be incorrect, and a fresh translation is rendered necessary all costs of and incidental to such fresh translation shall be borne by the party filing the document. 12.15 Inspection of documents lodged in Chief Translator’s Office.—A party to a suit or matter shall be entitled to take inspection of a book or document lodged by the opposite party in the Chief Translator’s Office after obtaining the consent in writing of the opposite party and on payment of a fee of rupee one per day.

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59 12.16 Translation of document in possession of the other side.— Where translation of a document in the possession of one party is required by the other party for the hearing of the suit, the former, on a request made in writing by the latter, shall immediately send the original to the Chief Translator’s Office for translation, or allow the latter to take copies thereof, and after examination of such copies, without any delay certify them to be correct copies. Translations of such certified copies shall be admissible at the hearing. In dealing with the costs of the suit, the Court shall have regard to any failure to comply with the provisions of this rule. 12.17 Copy of translation to be furnished to the other side.—An Advocate on record who shall obtain a translation of any document to be used for the purpose of a suit or matter shall, if required, furnish a copy of such translation to the opposite party or his Advocate on payment of half the ordinary translation charges, 12.18 Intimation of change of Advocate to be given to the office.— After an Advocate on record sends a document for translation to the Chief Translator’s Office, if there is a change of Advocate, the Chief Translator’s Office shall be informed at once by such Advocate of such change, and of the name of the new Advocate, or the address of the client if he thereafter appears in person. 12.19 Special Translators and Interpreters.—In Translation of documents which are written in any language other than Marathi, Gujarati, Hindi or Urdu and interpretation of documents in the English language into any language other than the aforesaid languages shall be done by Special Translators and Interpreters appointed by the Chief Justice. Application for such translation or interpretation shall be made to the Chief Translator and Interpreter who will assign the work to the Special Translators and Interpreters. 12.20 Translations when admissible.—Documents which are not in the English language shall not be accepted in evidence unless officially translated or translated, at the instance of the Chief Translator, by a special translator, or by any retired translator of the High Court with the sanction of the Chief Justice. Unofficial translations may be accepted subject to official translation if good

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60 and satisfactory reason is given why the document was not lodged in the office of Chief Translator and Interpreter in time for translation. (a)

Notwithstanding anything contained in the foregoing Rule:— (i)

the Court may allow unofficial translation of documents to be put in at the hearing and dispense with official translation, provided that the translations are agreed to by all the parties appearing in the suit or matter;

(ii)

acknowledgments of service by Registered Post bearing a signature in Gujarati or Devnagari script, when annexed to an affidavit of service, need not be translated.

12.21 Translation may be ordered by Court.—The Court may at any time require a party to the suit or matter to produce and leave in the Chief Translator’s Office any document not in the English language in his possession for the purpose of being officially translated, and may order that the translation when made shall be filed with the proceedings in the suit. 12.22 Sanction for immediate translation.—The Officer designated by Registrar-General, on good cause being shown, may sanction the immediate translation of any documents on payment of double the usual fee. 12.23 Translator’s office to translate documents put in subject to translation.—The Chief Translator’s office shall, on the request in writing and at the cost of any party to the proceedings or his Advocate on record, translate any document which may, or so much of any document as may, have been admitted in evidence subject to official translation thereof. 12.24 Canction for translation or interpretation of document not relating to High Court matters during or after office hours.— (a)

Documents not relating to suits or matters in the High Court may be accepted by the Chief Translator and

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61 Interpreter for official translation or interpretation either during or after office hours on payment of charges prescribed in the Table of Fees with the previous sanction in writing of the Registrar-General and subject to such special or general orders of the Honourable the Chief Justice that may be passed from time to time. (b)

The Registrar-General may give written sanction provided he is satisfied that such work will not result in delaying the regular work of the office of the Chief Translator and Interpreter, High Court, Bombay.

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62

CHAPTER 13 OFFICE OF THE SHERIFF OF MUMBAI

13.1

13.2

Sheriff to serve and execute process.—When so directed by the Court, (a)

The Sheriff shall execute the process of the High Court. He shall serve such process within the local limits of the Ordinary Original Civil Jurisdiction of the High Court by his bailiff or if the party so desires by registered post pre-paid for acknowledgment. Where the process is to be served beyond the said limits, the Sheriff shall serve the same by registered post prepaid for acknowledgment.

(b)

The Sheriff shall not be compellable to go in person or by his bailiff beyond the said limits for the purpose of serving or execution any process, unless so directed by the Court.

Special bailiff to execute process.—When the Sheriff is so directed by the Court under the preceding Rule, (a)

Within limits.—Upon occasions when it may be necessary or expedient to get a writ of summons served or other process executed within the local limits of the Ordinary Original Civil Jurisdiction of the High Court by a person other than the Sheriff ’s bailiff, the Sheriff may appoint a person, nominated by the Advocate of the party, as his special bailiff for that purpose and in order to prevent any improper use or abuse of the process of the Court, the said Advocate shall give an indemnity to the Sheriff for its proper service or execution to the satisfaction of the Sheriff.

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63 (b)

Beyond limits.—Upon occasions when it may be necessary or expedient to execute process beyond the said ordinary limits, but within the limits of the State of Maharashtra, the Sheriff shall appoint such person as the Court may direct as his special bailiff for that purpose and in order to prevent any improper use or abuse of the process of the Court, the party at whose instance the same is issued shall give such security or indemnity to the Sheriff for its proper execution as the Court shall direct.

13.3

Date of lodging process to be noted on the process.—The Sheriff shall note on every process the date on which it was lodged in his office.

13.4

Sheriff to execute all warrants.—The Sheriff shall, unless otherwise ordered, execute all warrants of arrest, and of attachment and sale of movable and immovable properties in execution of decree and orders or the Court.

13.5

Warrant for arrest of an insolvent.— (a)

When forwarding to the Sheriff a warrant for the arrest of an insolvent or for the arrest of any person for contempt of Court, the Insolvency Registrar shall send with the warrant the Sheriff ’s fee for filing the same.

(b)

The Insolvency Registrar shall endorse on every bailable warrant issued by him the name of the person before whom the bail is to be justified.

13.6

Battaki when beaten.—For the purpose of Order XXI, Rules 36, 54,67 and 96 of the Code of Civil Procedure, the Sheriff shall beat a battaki on the premises at the time action is taken under the said rules.

13.7

Provisions as to time and day of service to apply.—The provisions of Chapter 8 regarding the time and day of service; service on Advocates and clerks; service on parties; translations and affixing of notices shall apply to all service effected by the Sheriff.

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64 13.8

On receipt of precept, warrant of attachment to issue.— Where under section 46 of the Code of Civil Procedure, 1908, a precept is received by the Officer designated by RegistrarGeneral, he shall forthwith issue the appropriate warrant of attachment and forward it to the Sheriff for execution. The Sheriff may refuse to execute the warrant, unless the fees due to him for execution are paid by the judgment creditor and a representative of the judgment creditor accompanies the bailiff to point out the property to be attached.

13.9

Deposit of subsistence allowance with warrant of arrest.— With every warrant of arrest there shall be deposited with the Sheriff the sum of Rs. 5 for the interim subsistence of the judgment debtor, pursuant to Order XXI, rule 39(I) of the Code of Civil Procedure.

13.10

Judgment creditor to make a deposit with the Sheriff for incidental expenses of maintenance of attached property.—When a warrant of attachment is lodged in the Sheriff ’s Office, the judgment-creditor shall deposit with the Sheriff such sum as will, in the opinion of the Sheriff, be sufficient to cover the incidental expenses of maintaining possession of the property to be attached. When the amount deposited becomes insufficient to cover the said expenses, the Sheriff shall be entitled to call upon the judgment-creditor to deposit such further amount or amounts as he may deem fit. If the amount be not deposited, the Sheriff shall be entitled to withdraw from possession.

13.11

Sheriff to insure attached property if necessary.—In case where, in the opinion of the Sheriff, it appears necessary to insure movable or immovable property which has been attached, the Sheriff may have it insured and require the judgment creditor to pay the insurance premium. It the judgment creditor fails to pay the premium, the Sheriff shall report to the Judge and obtain the Judge’s directions as to him may seem just.

13.12

Release of person arrested or property attached before judgment.—Any person arrested or any property attached before judgment shall be released from arrest and attachment

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65 by the Sheriff immediately on his being served with a certificate issued by the Officer designated by RegistrarGeneral that sufficient security has been taken by that officer. 13.13

Judgment debtor to be released on the written request of the judgment creditor.—The Sheriff shall release the judgment-debtor on the written request of the judgmentcreditor or his Advocate on record, unless some other warrant under which the judgment-debtor could be arrested has been lodged in his office.

13.14

Attachment to be withdrawn on the written request of the judgment creditor.—The Sheriff shall withdraw the attachment levied on movable or immovable property on the written request of the judgment-creditor or his Advocate on record, unless some other warrant under which the said property could be attached has been lodged in his office.

13.15

Levy of sums mentioned in warrant of arrest or attachment.—The Sheriff shall receive or levy the sums mentioned in every warrant of arrest or of attachment and a sufficient sum for interest (where interest is payable) besides his own fees and poundage.

13.16

Release of judgment debtor and withdrawal of attachment on receipt or realisation of moneys mentioned in the warrant.—On receipt or realisation of the moneys specified in the last preceding rule, the Sheriff shall, in the case of a warrant of arrest, release the judgment debtor, unless some other warrant under which the judgment debtor could be arrested has been lodged in his office, and in the case of a warrant of attachment withdraw the attachment, unless some other warrant under which the property in question could be attached has been lodged in his office.

13.17

Production before Judge of persons arrested, order of committal, warrant of committal.—Every person arrested who is not released under any of the preceding rules shall, as soon as practicable, be brought before the Judge or if he is not available, before any other Judge upon all warrants of arrest lodged against him in the Sheriff ’s office for an order of

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66 committal or otherwise, but in no case after 8:00 p.m. A note of the order and the rate of subsistence allowance fixed (if any) shall be endorsed on the warrant of arrest by the officer in attendance and authenticated by him with his initials. Upon production in the Officer designated by RegistrarGeneral’s office of the warrant with and endorsement ordering a committal, a separate warrant shall be issued for the commitment of the person to jail, in which the rate of subsistence allowance if fixed as aforesaid shall be specified; Provided that in case of two or more warrants the Judge may apportion the subsistence allowance between the Judgment creditors in such manner as he thinks just. 13.18

Production of person arrested after 8 p.m.—Every person arrested after 8 p.m. shall be immediately lodged in the civil jail and brought before the Judge or if he is not available, before any other Judge at the opening of the Court. If the next day happens to be a Sunday or other holiday, such person shall be brought before the Judge or if he is not available, before any other Judge, at his bungalow.

13.19

Superintendent of jail to keep in custody person arrested or committed.—The Superintendent of the Civil Jail, Mumbai, shall receive and keep in his custody any person arrested by the Sheriff till the said person can be placed before a Judge for an order of committal or otherwise. On an order of committal being made, the Sheriff shall lodge the said person in the Civil Jail and the Superintendent of the jail shall detain the said person until he is duly discharged according to law or the order of the Court. A certified copy of the warrant of committal shall be served on the Superintendent.

13.20

Production before Judge, under fresh warrant, of person already in custody.—When the Sheriff receives a warrant to arrest a person already in the custody of the Superintendent of the Civil Jail, Mumbai, under civil process, he shall forthwith bring the person before the Judge or if he is not available, before any other Judge for an order of committal. The Judge may then apportion the subsistence allowance

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67 between the detaining creditors in such manner as he thinks just. 13.21

Application for production of person in custody.—If it shall at any time be necessary that a person in the custody of the Superintendent of the Civil Jail, Mumbai, should be brought up before the Court, the application for that purpose shall be supported by an affidavit and by the production of the Sheriff ’s return of having executed the warrant of arrest. The officer having the custody of the Sheriff ’s return shall cause the same to be produced before the Court on a request being made to him in writing by the person making the application.

13.22

Liability for Sheriff ’s poundage.— (a)

In cases where a person is arrested or property is attached, the party or the Advocate on record for the party at whose instance the arrest was made or the attachment levied shall be liable to the Sheriff for his fees or poundage, as the case may be.

(b)

Any amount received by the judgment creditor from the judgment debtor in full or part satisfaction of a decree or order in respect of which a warrant of arrest or a warrant of attachment has been executed shall be presumed to have been realised under the warrant, if the warrant is merely suspended and not dead.

(c)

Where the execution-creditor or his Advocate on record receives direct any instalment or other sum ordered to be paid by the judgment debtor in full or part satisfaction of the decree or order, he shall file a precipe in the Sheriff ’s office informing him of the payment made.

(d)

The Advocate on record shall be responsible for filing this precipe, if the payment has been made through his office or he has been informed of it by the execution creditor.

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68 13.23

Advocate to file in Sheriff ’s Office copy of order releasing judgment debtor or raising attachment.—When an order is passed releasing a judgment debtor or raising an attachment, the Advocate on record for the party at whose instance the order is made shall file a certified copy thereof in the Sheriff ’s Office and shall inform the Sheriff whether there has been any satisfaction, compromise, or settlement and, if so, for what amount and also whether poundage has been paid in respect thereof.

13.24

Satisfaction not to be entered without Sheriff ’s certificate.—Where warrants in execution have been lodged with the Sheriff, no satisfaction in full or in part of any decree or order in any suit or matter shall be entered thereon without the production of a certificate of the Sheriff that no poundage is due to him.

13.25

Payment of money realised under warrant of arrest.—The Sheriff shall receive all money tendered to him under any warrant of arrest and shall, unless otherwise ordered, pay the same to the judgment creditor or to his Advocate on record if he is duly authorised and shall notify such payment to the Officer designated by Registrar-General. Sheriff to certify receipt of money in other cases.—In all other cases, whenever the Sheriff shall receive money under warrants of attachment or realise assets by sale or otherwise from the property of the judgment debtor, he shall soon thereafter certify to the Court the amount and date of such receipt or realisation and shall hold the same until further orders of the judge or the Officer designated by Registrar-General; provided that when a portion of the pay or salary of a judgment debtor is paid monthly to the Sheriff in execution of a decree or order, he shall certify the same to the Officer designated by RegistrarGeneral at such periods only as he may think fit.

13.26

Sheriff to levy the costs of Registrar(O.S.)/Prothonotary’s order.—When the amount mentioned in the margin of the warrant is paid, the Sheriff shall also levy the amount of the costs of obtaining the Officer designated by RegistrarGeneral’s order for payment.

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69 13.27

13.28

Sheriff to sell property of judgment debtor and to credit sale proceeds to Government, if unclaimed for one year.— (a)

Where there are goods of the judgment-debtor on the premises of which the Sheriff is directed to give vacant possession under a warrant of possession either under Order XXI, rules 35 and 36 or Order XXI, rules 95 and 96 of the Code of Civil Procedure, the Sheriff shall sell the same, but immediately thereafter and if possible prior thereto, he shall give public notice in the press as to the goods or the sale proceeds lying with him, if the value of the goods or the sale proceeds exceeds Rs. 500 and where a sale has taken place, he shall hold the same till a claim is made. If no such claim is made within one year from the date of the sale, the amount of the sale proceeds shall be credited to Government.

(b)

In cases where the Sheriff is directed to sell movable property and has sold such portion of the property as is sufficient to satisfy the judgment debt, costs of execution, etc,. he shall hand over the surplus property to the judgment debtor if he be present or to his authorised agent. If the judgment debtor is not present, nor represented by an authorised agent, the Sheriff shall sell the same immediately and hold the sale proceeds of the surplus property till a claim is made. If no such claim is made within one year from the date of the sale, the amount of the sale proceeds shall be credited to Government.

Sale of movable property subject to certain conditions.— Every sale of movable property by the Sheriff shall be made subject to the following conditions:— (a)

First, terms cash;

(b)

Second, Lots sold to be at the risk and expense of the purchaser from the time of sale, and to be removed by him with all faults and errors of description immediately after the sale.

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70 (c)

13.29

Third, should any mistake be made in describing any articles, such mistakes shall not be held to vitiate or affect the sale of such articles in any way, it being understood that intending purchasers shall satisfy themselves on all points before purchasing and no dispute shall be entertained after the sale.

Sale of immovable property subject to certain conditions.—Every sale of immovable property by the Sheriff shall be made subject to the following conditions: (a)

The highest bidder shall be the purchaser. If any dispute arises between two or more bidders, the property in dispute shall be put up again at the last undisputed bidding.

(b)

The person who shall be declared to be the purchaser shall deposit immediately twenty five per cent of the amount of his bid, and in default, the property shall forthwith be again put up and sold. Such deposit shall be made in cash, unless the execution creditor or his Advocate on record consents to receiving payment by cheque.

(c)

The balance of the purchase money, together with the amount of stamp duty payable on the sale certificate to be issued by the Court, shall be paid by the purchaser before the closing of the Sheriff ’s office on the thirtieth day from the day of sale or if the thirtieth day be a Sunday or other close holiday, then on the first day in which the office shall be open after the thirtieth day and in default of payment of the said amounts within such period, the deposit may, if the Court thinks fit, after defraying the expenses of the sale be forfeited to the Government and the property shall be resold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold. If the proceeds of the re sale be less than the price bid by such defaulting purchaser, the difference shall be leviable from him under the rules contained in Order

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71 XXI of the Code of Civil Procedure for the execution of a decree for money. (d)

The sale shall not become absolute until the same has been confirmed by the Court.

(e)

If the sale be set aside by the Court, or if the judgment debtor has no saleable interest Whatever in any lot sold under these conditions, the purchaser shall be entitled to receive back his purchase money with or without interest as the Court may direct.

(f)

The right, title and interest only of the judgment debtor in the above described property is sold by the Sheriff.

(g)

The sale is made under and subject to all other provisions contained in the Code of Civil Procedure relative to sales in execution of decrees.

13.30

Rules relating to arrest and attachment after judgment to apply to arrest and attachment before judgment.—The rules in this chapter relating to arrest or attachment in execution of a decree or order shall, with any necessary modifications, apply to arrest or attachment before judgment.

13.31

Sheriff may give authority to Deputy Sheriff.—The Sheriff may authorise the Deputy Sheriff or any other person to execute the process of the Court. Any act done by the Deputy Sheriff or such other person pursuant to such authority shall be deemed to be the act of the Sheriff.

13.32

Sheriff to include Deputy Sheriff, etc.—In these Rules the term “Sheriff ” shall include the Deputy Sheriff or other officer who may be appointed to execute the process of the Court.

13.33

Performance of Deputy Sheriff ’s duties during his absence.—During the temporary absence of the Deputy Sheriff, the Head Clerk may be authorised by the Sheriff by

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72 order in writing to perform the duties usually performed by the Deputy Sheriff.

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73

CHAPTER 14 OFFICE OF THE RECEIVER

14.1

Security to be given by a Receiver other than the Court Receiver.—When an order is made appointing a person, other than the Court Receiver, as receiver, the person appointed shall, unless otherwise ordered, first give security to the satisfaction of the Officer designated by Registrar-General in such sum as the Court may direct duly to account for what he shall receive in respect of the property of which he is appointed receiver at such periods as may be prescribed by these rules or as the Court may direct, and duly to pay or to deliver the same as the Court may from time to time direct.

14.2

Fees of Receiver.—Unless otherwise ordered by the Court, the Court Receiver shall charge fees according to the scale set out in the table at Appendix XXX to these Rules.

14.3

Court Receiver to charge office expenses to estate.—The Court Receiver shall, unless otherwise ordered by the Court, charge to suits, estates or matters under his management a sum which in his direction he considers proper, towards the expenses of his office including his salary and this he shall do so with due regard to the fees charged by him under these rules and to the value of each suit, estate or matter and the labour and trouble involved in its management.

14.4 Investment of moneys by the Court Receiver.—The Court Receiver shall, out of moneys standing to the credit of a suit or matter, invest such amount, as is not immediately required for payment or for meeting the current expenses relating to the suit or matter, in consultation with the parties to the suit or matter, in Government securities or in interest bearing deposits in any

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74 Scheduled Bank in the names of the Court Receiver as Receiver in suit or matter. The dividend or interest accruing on such investment shall be credited to the account of the same suit or matter from which the moneys were so invested. 14.5

Filing of Accounts with the Commissioner.— (a)

Period for filing Receiver’s account with the Commissioner.—A receiver, other than the Court Receiver, shall, in the absence of any directions of the Court to the contrary, file his account in the office of the Commissioner within three months from the expiry of a year from the date of his appointment and thereafter within three months from the expiry of each subsequent year.

(b)

Period for filing the Court Receiver’s account with the Commissioner.—The Court Receiver shall, in the absence of any directions of the Court to the contrary, file in the office of the Commissioner his account from the date of his appointment to the end of the next calendar year within three months from the expiry of the said calendar year and thereafter within three months from the expiry of each subsequent year; provided that where important entries in the account do not exceed a dozen on each side, the Court Receiver may file one account for a period not exceeding three years.

(c)

Where the Court Receiver is discharged after the end of a calendar year and before the account is filed, he may file his account up to the date of his discharge.

(d)

In drawing up every order for the appointment of a receiver, a provision shall be made requiring the receiver to file his account in the office of the Commissioner as provided by this rule.

14.6 Form of receiver’s account.—The account of a receiver to be filed in the office of the Commissioner shall be in Form No. 81 with such variations as the circumstances may require. An

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75 affidavit verifying the account shall be endorsed at the foot of the account and shall refer to it as an exhibit. 14.7 Certified copy of the Minutes of the decree or order to be served on the Receiver.—In a suit or matter where a Receiver has been appointed, a certified copy of the minutes of the decree or order containing provisions which directly or indirectly concern the Receiver shall be served on the Receiver by the party on whose application the decree or order is passed within one week from the date of such decree or order: Provided, however, that where the party is represented by an Advocate entitled to act on the Original Side of this Court, it shall be the duty of such Advocate to serve a certified copy of the minutes of the decree or order on behalf of the party within the time herein provided. 14.8 Provisions for payment of Receiver’s costs etc.—When an order is made directing the receiver to part with any property the order shall provide that the costs, charges, expenses and commission of the receiver shall be paid by such party as the Court may direct as a condition precedent to such delivery. 14.9 Rules in this chapter to apply to interim receiver and administrator pendente-lite.—The rules contained in this chapter and all other rules applicable to a receiver shall, with any necessary modifications, apply to an interim or provisional receiver and to an administrator pendente-lite. 14.10 Sales by Court Receiver.—The rules relating to sales of movable and immovable property shall, with any necessary modifications, apply to sales held by the Court Receiver.

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CHAPTER 15 DESTRUCTION OF RECORDS

15.1

Return of Documents.—Unless otherwise ordered by the Court, all original documents including translations and copies of judgments, decrees, orders and other papers, which are not required to be preserved, shall be returned to the party producing them after the expiry of the period for filing an appeal or if an appeal is filed, after the disposal of the appeal. The rest of the papers shall be marked, classified and arranged in files for the purpose of despatch to the Record Room as prescribed below.

15.2

Preservation of Records.—

15.3

(a)

The papers which are required to be preserved permanently shall be marked “A” and kept in File “A

(b)

The papers which are required to be preserved for 30 years shall be marked “B” and kept in File “B”

(c)

The papers which are required to be preserved for 5 years shall be marked “C” and kept in File “C”

(d)

The papers which are required to be preserved for 1 year shall be marked “D” and kept in File “D”.

Papers to be preserved permanently.—The following papers shall be permanently preserved: (a)

all judgments, decrees and final orders of the High Court, except orders summarily dismissing appeals or applications.

(b)

All registers of appeals and applications, including Writ Petitions.

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15.4

15.5

(c)

Such papers, in cases of historical, sociological or scientific value, as in the opinion of the Registrar, should be permanently preserved.

(d)

Judgments, decrees and final orders of the Supreme Court in cases decided by the Bombay High Court.

(e)

Files containing original judgments signed or initialed by the Judges.

(f)

Inspection notes and important correspondence made on the basis of inspection notes which have entitled administrative representation, departmental enquiry or proceedings.

Papers to be preserved for 30 years.—The following papers shall be preserved for 30 years: (a)

Judgments and/or orders of High Court summarily dismissing appeals and applications.

(b)

Paper-books or prints in cases in which a sentence of death or imprisonment for life is passed

(c)

Writs communicating final orders in applications decided under Articles 226 and 227 of the Constitution.

(d)

Farad Files, except farads of applications for interlocutory orders and applications necessary for the progress of the main proceeding.

Papers to be preserved for 5 years.—The following papers shall be preserved for 5 years: (a)

Paper-books other than those specified above in matters heard by the High Court.

(b)

Applications for interlocutory orders, applications necessary for the progress of the proceedings and applications for certificate for leave to appeal to the Supreme Court or to the High Court under the Letters Patent.

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78 (c)

Applications for transfer, bail or stay of proceedings,

(d)

Faradas and Orders made by the High Court in interlocutory applications mentioned in items (2) and (3) above.

(e)

Reports called for from the lower Courts.

(f)

Writs Communicating final orders to the lower Court except interlocutory orders and orders in Writ Petition.

(g)

Original memoranda of appeals, and cross objections, and original revision applications, references and applications for review.

(h)

Applications under Articles 226 and 227 of the Constitution.

(i)

Printed copies of the transcript record of the Supreme Court.

(j)

Ferists and receipts of Records and Proceedings by the lower Courts.

(k)

Copies of judgments of lower Courts or-Tribunals against which appeals or applications have been made to the High Court.

(l)

Objections to findings on issues called for by the High Court.

15.6

Papers to be preserved for three years.— The following papers shall be preserved for three years: The inspection notes and replies to the questionnaire received from the District and Sessions Judges or inspecting District Judges be destroyed after three years from the date .of their full compliance by them on the lines of Rule I (returns) and Rule 23 (Annual Statements of the Administrative Reports) Rules, 1900.

15.7

Papers to be preserved for one year.—.The following papers shall be preserved for one year:

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15.8

(a)

Writs communicating interlocutory orders of the High Court to the lower Courts.

(b)

Applications for issue of processes, etc.

(c)

Applications for stay of execution of orders passed by the lower Courts.

(d)

Applications for bail.

(e)

Presentation Forms.

(f)

Examination Memos.

(g)

Vakalatnamas.

(h)

Orders appointing Advocates in criminal matters.

(i)

Notices and Returns thereto.

(j)

R. & P. Writs including requests for extension of time for certifying R. & P.

(k)

Requisitions for printing.

(l)

Writs sending down the issues.

(m)

Notices of receipt of Findings.

(n)

Correspondence relating to Jail Petitions.

(o)

Writs for bail, arrest, stay, production of accused in Courts and other interlocutory orders.

(p)

Press copies of the record of the lower Courts.

Destruction of Records.— (a)

The papers in rejected matters including First Appeals, Second Appeals, Civil Revision Applications, Writ Petitions, Contempt Petitions etc. shall be destroyed after a period of two years from the date of the Order of their rejection, if they are not taken away by the parties or their advocates as provided in Rule 9 of Chapter V;

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15.9

(b)

Before destroying the papers as stated above, the Officer concerned shall notify three months in advance giving details thereof such as stamp number, the names of the parties, the name of the advocate/advocates, the date of rejection etc, The notice shall be published on notice-board on conspicuous space and the copies of the notice shall be sent to the Advocates’ Associations.

(c)

The Officer concerned shall ensure that Court Fee Stamps and Stamp Papers in all rejected matters to be destroyed are cancelled before destruction.]

Computation of period for the preservation of Record.— (a)

The period prescribed above for the preservation of the records shall be computed from the date of the final decision of the case and in case of appeal to the Supreme Court, from the date of the final decision of the Supreme Court.

(b)

A Board file shall be preserved for three years from the date of the last board in that file.

(c)

The outward register, the inward register and the stamp register shall be preserved for five years from the date of the last entry in that register.

15.10

All files pertaining to each case to be kept in one bundle.— All files pertaining to any particular case shall be kept in one bundle bearing the number of the proceedings. Each File shall be accompanied by list of the papers filed therein.

15.11

Register of cases of which the records are to be destroyed to be maintained in the Record Room.—A register in the form given below shall be maintained showing the numbers and years of appeals and other cases received in the RecordRoom of which the records are to be destroyed. The entries for each year shall be signed by the Record-keeper and the Assistant Registrar :- (table)

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81 15.12

Destruction of records to be carried out in the Summer Recess.— (a)

Notice shall be publicly given on the Court Notice Board that parties leave documents and papers with the records of case at their own risk and that they are liable to be destroyed in accordance with the rules for the destruction of records.

(b)

The destruction of records shall be carried out in the summer recess of each year. The records to be destroyed should, if they cannot be conveniently burnt, be torn up into very small pieces and made incapable of use again as documents. The fragments should be sold to the highest bidder, and the proceeds credited to Government.

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82

CHAPTER 16 MINORS AND PERSONS OF UNSOUND MIND

16.1

Next friend of minor to make affidavit; Order of appointment unnecessary.—When a suit is brought on behalf of a minor, the next friend shall make an affidavit, to be presented with the plaint in the suit, that he has no interest directly or indirectly adverse to that of the minor, and that he is otherwise a fit and proper person to act as such next friend. The date of birth of the minor, if known, or otherwise his age, shall also be stated. No order appointing the next friend by whom the suit is to be instituted will be necessary.

16.2

Application of provisions of Order XXXII of Code of Civil Procedure.—The provisions of Order XXXII of Code of Civil Procedure shall apply mutatis mutandis to the suits by minors and persons of unsound mind.

16.3

Procedure by petition when defendant is a minor.—When a plaintiff knows that a defendant is a minor, he shall, on the presentation of the plaint, present a petition for the appointment of a guardian for the suit for such defendant. Such Petition shall be in Form No. XX.

16.4

Person eligible to be guardian ad-litem.—The person to be appointed guardian for the suit, if he has no interest directly or indirectly adverse to that of minor and is otherwise a fit and proper person to be appointed guardian for the suit, will ordinarily be (a) the guardian of the minor appointed or declared by an authority competent in that behalf, or (b) the testamentary guardian, or (c) the natural guardian, or (d) the person under whose care the minor is, and the plaintiff shall, if possible, obtain the consent is writing of one of such

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83 persons, in order of priority referred to above, to his appointment as such guardian. 16.5

Procedure when plaintiff unable to obtain consent of persons eligible.—If the plaintiff is unable to obtain the consent of any of the persons mentioned in the last preceding rule, he shall state the reasons of his inability and propose some other fit and proper person for being appointed guardian for the suit; a notice will then issue to the minor if the minor is above 14 years of age and to the persons mentioned in the last preceding rule informing them that on a day to be therein named, the Prothonotary and Senior Master will, if no cause be shown to the contrary, proceed to appoint the person proposed by the plaintiff, or some other fit and proper person, to be such guardian as aforesaid. (Form No.XX).

16.6

Service of summons on guardian ad-litem.—

16.7

(a)

On such appointment being made, the summons and other processes or Notices in the suit shall be served on such guardian-ad-litem on behalf of the minor unless otherwise ordered.

(b)

Where no guardian-ad-litem has been appointed or for any other reasons the Court orders on a minor personally and such minor is unable to acknowledge the same, the service shall be effected by serving any person in whose charge minor is or with whom he habitually resides.

(c)

In case there is no such person, the service shall be effected by affixing a copy of the writ or other process with a translation thereof on the outer door of the house in which the minor ordinarily resides.

Application by foreigner for appointment as guardian of person or property of minor.— (a)

When a foreigner makes an application in person, or through an Advocate, for being appointed as the guardian of the person or property of a minor not

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84 related, to him, such Advocate or party in person shall address a letter to the Secretary of the lndian Council of Social Welfare, Mumbai, forwarding therewith a copy of such application, and informing him of the date fixed for the hearing thereof, and further requesting him that any representation which the Indian Council of Social Welfare may make in the matter, should be submitted to the Officer designated by Registrar-General of this Honourable Court, in writing in duplicate four days before the hearing of the said application and that such a representation would be considered by the Court before passing the order on the application. The Court may, while passing the order on the application, direct the applicant to pay, as condition precedent, such sum as it may fix to the Indian Council of Social Welfare, Mumbai, as costs of making the representation. If costs are awarded to the Council, the Officer designated by Registrar-General shall not issue a certified copy of the order made on the application, to the applicant, until he produces a receipt from the Council for payment of their costs awarded by the Court. (b)

16.8

Endorsement of copies of orders to the Government of India.—Whenever foreign nationals are declared guardians of Indian Children with permission to remove such children out of India under the provisions of the Guardians and Wards Act, 1890 copies of such orders shall be endorsed to the Government of India, Ministry of education and Social Welfare (Department of Social Welfare).

Commissioner to be informed of the appointment of a guardian of a minor’s property etc.—When an order is made appointing a person guardian of the property of a minor, the Officer designated by Registrar-General shall, on issuing the order of appointment, forward to the Commissioner a certificate stating the name of such guardian and the terms

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85 and conditions, if any, on which such appointment has been made. 16.9

Instructions to guardians.—Except in cases falling under Rule 16.7 of this Chapter, whenever an order is made declaring or appointing a person the guardian of the person or of the property of a minor, there shall be annexed to the order instructions for the guidance of such guardian in Form No.XX with such variations as the circumstances of the case may require.

16.10

Deposit of minor’s moneys.—When the Court is of the opinion that it is necessary to safeguard the moneys which a minor is entitled to in a suit or matter, the Court, shall ordinarily direct that the moneys belonging to the minor be deposited with the Accounts Officer of the High Court. When making the order, the Court shall, as far as possible, state the date of birth of the minor or the age of the minor. Such statement shall be incorporated in the decree or order.

16.11

Investment of minor’s money.—When a decree or order directs money to be deposited with the Accounts Officer on behalf of a minor in a suit or matter, the Accounts Officer shall, unless otherwise ordered, invest the money in securities prescribed by Rule made under Indian Trusts Act by the High Court. Any surplus interest in his hands not required to be paid over to the minor or his guardian and aggregating to Rs. 200 or over shall also be invested by the Accounts Officer in the said securities. The Accounts Officer shall forward a statement of such investments to the Officer designated by Registrar-General for the information of the Chief Justice every year.

16.12

Certain rules to apply to guardians of minors.—Rules 33.23, 33.24, 33.25, 33.26, Rule 14.5(a) and Rule 14.6, shall with any necessary modifications, apply to a guardian of the person or property of a minor appointed by the Court.

16.13

Commissioner’s certificate to be obtained before depositing un-ascertained sum with Accounts Officer.— When a decree or order directs an un-ascertained sum to be

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86 deposited with the Accounts Officer of the High Court on behalf of a minor, the party concerned or his Advocate on record shall lodge in the office of the Commissioner accounts with all vouchers relating thereto for verification in a summary manner of the sum to be deposited and shall obtain from the Commissioner a certificate as to the correct amount of such sum. The Accounts Officer shall not receive any such sum unless accompanied by such a certificate, provided however that this certificate shall not be required when money is deposited either by the Officer designated by Registrar-General or by the Commissioner or by the Court Receiver, or if such certificate is expressly dispensed with by order of the Court. 16.14

Ascertained amount to be deposited and Accounts Officer’s receipt to be produce before Commissioner.— Within seven days from the issue of the Commissioner’s certificate mentioned in Rule 16.13 above the party concerned or his Advocate on record shall forward the amount specified in the certificate to the Accounts Officer and within seven days thereafter shall produce before the Commissioner for his inspection the receipt of the Accounts Officer in respect of the amount so forwarded. ‘In default of the production of the said receipt within the period aforesaid, the Commissioner shall refer the matter to the Court which after hearing the party concerned or Advocate on record shall make such order as it may deem fit.

16.15

Application of Rules XX to YY of this Chapter to persons of unsound mind.—The provisions contained in Rules XX to YY of this Chapter shall so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind, and shall also apply to persons who, though not so adjudged, are found by the Court on inquiry by reason of unsoundness of mind or mental infirmity to be incapable of protecting their interest when suing or being sued.

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87

PART II : JURISDICTION

CHAPTER 17 ORIGINAL JURISDICTION

17.1

Holding of Court on Original Side.—A Court for the exercise of the Original Jurisdiction of the High Court on its several sides may be held before one or more Judges of the High Court. Such Judge or Judges may, subject to any rules of the Court, exercise in Court or in Chambers all or any part of the Original Jurisdiction of the High Court. Note.— The Ordinary Original Civil Jurisdiction of the High Court extends to Greater Mumbai as defined in the Greater Bombay Laws and the Bombay High Court (Declaration of Limits) Act, 1945 (Bom. Act No. XVII of 1945), as amended periodically.

17.2

Reference to two or more Judges.— If it shall appear to any Judge, either on the application of a party or otherwise, that a suit or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice, who shall make such order thereon as he shall think fit. This Rule shall apply mutatis mutandis to every other kind of jurisdiction exercised by the High Court.

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CHAPTER 18 JURISDICTION (CIVIL AND CRIMINAL) OTHER THAN ORIGINAL

18.1

Jurisdiction ordinarily exercised by a Division Bench of two Judges.—The Civil and Criminal jurisdiction of the Court (other than Original Jurisdiction) shall, except in cases where it is otherwise provided for by these Rules, be exercised by a Division Bench consisting of two or more Judges.

18.2

Matters which may be disposed off by a Single Judge.— Save as otherwise expressly provided by these Rules, a Single Judge may dispose of the following matters:— (a)

Civil Matters:—

Appeals.—

(i)

(A) from an original decree in a suit from which an appeal lies to the High Court as from an original decree, wherein the value of the subject-matter in dispute in the court of the first instance does not exceed the value provided in Schedule XXX to these Rules, or wherein the value of the subject-matter still in dispute on appeal is or is less than the value provided in Schedule XXX to these Rules;

Explanation:— the expression ‘the value of the subject-matter still in dispute on appeal’ appearing in this sub-clause shall be

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89 construed to mean, where there is an appeal as well as a cross-appeal or cross-appeals or cross-objections, the highest of the principal values of the subject-matters in dispute in the appeal as well as the cross-appeal or the cross appeals or the cross-objections; (B) from appellate decrees in suits from which appeals lie to the High Court as from appellate decrees; (C) from decrees under section 144 of the Code of Civil Procedure: (D) from orders under section 104 or Order XLIII, Rule 1 of the Code of Civil Procedure;

Civil Revisional Jurisdiction.—

(ii)

(A) All applications for the exercise of the Court’s Civil Revisional Jurisdiction, unless otherwise provided for by any other law for the time being in force. (B) All applications in respect of orders passed by the Registrar, Deputy Registrar, Assistant Registrar or the Special Officer in those appeals or petitions which are to be dealt with by a Single Judge under these Rules. (iii)

Miscellaneous and Other Applications:—All other applications including miscellaneous applications relating to the above;

(iv)

References:— (A) References under Section 113 of the Code of Civil Procedure, 1908 except those in the provisos thereto;

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90 (B) Civil Court references Contempt of Courts Act; (b)

under

the

Criminal Matters:—

Appeals:—

(i)

(A) Against (I)

convictions except in which the sentence of death or imprisonment for life or imprisonment exceeding 10 years has been passed;

(II) acquittals except in which the accused was charged with the offences punishable with sentence of death or imprisonment for life or imprisonment exceeding 10 years. (III) under section 377 and 372 (Appeal by victim) of the Code of Criminal Procedure subject to clauses (I) and (II) above; (IV) all revision applications and Court notices for enhancement of sentence for offences punishable on conviction with sentence of imprisonment exceeding 10 years, or death; (V) (deleted in view of S.454 and 454(2) of the CrPC)orders directing payment of compensation, expenses and/or fees (VI) orders binding over the accused and in the meanwhile to be of good behaviour or admonishing the accused.

Applications:—

(ii)

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91 (A) For leave to appeal under section 378(4) of the Code of Criminal Procedure against acquittals except wherein the offence with which the accused was charged is one punishable on conviction with a sentence of death or imprisonment for life or imprisonment exceeding ten years; (B) For bail (also an application under Section 390 of the CrPC) or stay in respect of any appeal or application already pending in the High Court relating to matters specified in clauses (A)(I) and (A)(II) above; (C) For leave to appeal to the Supreme Court under Article 134 of the Constitution of India in matters disposed off by a Single Judge. (D) All miscellaneous applications, including applications for bail or stay not arising in or out of any Appeal already pending in the High Court; (E) All applications under Article 227 of the Constitution of India challenging the orders and decisions of Subordinate Courts constituted under the Code of Criminal Procedure, 1973; (F) All applications under section 482 of the Code of Criminal Procedure challenging orders passed by Subordinate Courts or seeking quashing of proceedings before such Courts; (G) All applications u/s 407 and 402 of the Criminal Procedure Code. 18.3

Applications for furlough or parole and similar matters

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92 arising out of matters already disposed off.— (a)

All Applications/petitions for furlough or parole under Prison (Bombay Furlough and Parole) Rules, 1959 (or under the (Prison Goa, Daman and Diu Furlough and Parole) Rules, 1968) or for temporary bail in the matters pending before Division Bench or a Single Judge shall be placed before the respective fora; and

(b)

Applications/petitions of aforesaid nature arising out of matters already disposed off shall be placed before the Single Judge assigned with criminal matters.

18.4

Applications for transfer of proceedings in lower Courts.— All applications for transfer of any proceedings including those under Sections 24 of the Code of Civil Procedure, 1908 or 407 and 402 of the Code of Criminal Procedure, 1973 pending for trial or disposal in any Civil Court or Criminal Court subordinate to the High Court or over which the High Court has the power of superintendence, to another Court subordinate to or under the superintendence of the High Court, or to the High Court may be disposed off by a Single Judge.

18.5

Difference of opinion between judges of a Division Bench.—Where a point of difference of opinion between Judges of a Division Bench is decided in the manner provided for in section 98 of the Code of Civil Procedure or Section 392 of the Code of Criminal Procedure as the case may be, after the third Judge to whom the reference is made has given his opinion, the matter shall be placed before the Division Bench which had originally heard the matter and it shall pronounce the final judgment or order disposing of the matter; PROVIDED THAT where one of the Judges constituting such Division Bench has ceased to be a Judge of the High Court or has for the time being ceased to sit at Mumbai, Nagpur, Aurangabad or Goa, as the case may be (the Division Bench whereof originally heard the matters), the matter shall be placed before the Division Bench of which the other Judge is a member.

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93 PROVIDED FURTHER that where both Judges of the Division Bench which originally heard the matter have ceased to be Judges of the High Court or have ceased to sit at Mumbai, Nagpur, Aurangabad or Goa, as the cease be, the matter shall be placed before a Division Bench dealing with the class of cases to which the referred matter belongs.

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CHAPTER 19 CRIMINAL JURISDICTION

19.1

Appellate side to hear applications under E.O.C.J.— Applications for the exercise of the Extraordinary Original Criminal Jurisdiction conferred on this Court by Clauses 24 and 29 of the Letters Patent, and applications under sections 96 an 407 of the Code of Criminal Procedure, shall be heard and disposed off on the Appellate Side.

19.2

Cases transferred to be heard on the Original Side in its Criminal Jurisdiction.—But the cases directed to be tired by the High Court will be tried on the Original Side in the exercise of its Criminal Jurisdiction, according to the provisions of the said Code of Criminal Procedure before such Judge as the Chief Justice shall appoint.

19.3

Sitting of criminal sessions.—The criminal sessions of the High Court shall be held at such time and on such dates as the Chief Justice may direct.

19.4

Clerk of the State to issue summonses and processes.—All summonses, precepts, rules, orders, mandatory processes shall be issued from and returned into the office of the Clerk of the State, and shall be subscribed and sealed by the Clerk of the State. The authority designated for service or appointed by an order of the Court, through its or his Officers, shall execute them by service in accordance with the provisions of sections 61 to 68 of the Code of Criminal Procedure.

19.5

Witnesses residing beyond certain limits not to be summoned.—No summons shall be issued by the Clerk of the State to compel the attendance as a witness of any person resident and at the time residing beyond the limits of Greater

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95 Mumbai, Salsette and Karanja, unless the Court so orders. 19.6

Service on Consuls and Consular Officers.—Where subpoenas are required for the attendance of Consuls and Consular Officers, a letter should always take the place of a subpoena to be signed by the Clerk of the state and containing all the particulars required to be stated in subpoena. Such letter should then be forwarded to the General Administration Department of the Government of Maharashtra, for favour of service by the Department on the Consul and ample time should be allowed so as to secure such service in good time and the attendance thereafter by the witness.

19.7

Attendance of witnesses under recognizances and beyond jurisdiction.—In cases where witnesses resident beyond the local limits of the Ordinary Original Criminal Jurisdiction of the High Court have been bound over by recognizances or summoned to attend and give evidence at the trial of any person committed by any Magistrate in any district to any criminal sessions of the High Court, it shall not be necessary for the Clerk of the State to issue any summons of such witnesses, but the Clerk of the State shall in all such cases, in sufficient time before the day appointed for holding the criminal sessions, send a letter to the Magistrate of the district from which the committal was made, stating the day on which the criminal sessions are to be held, with a list of the witnesses from whom recognizances have been taken and of those to whom summonses have been issued, and requesting the Magistrate to cause the witnesses to be served with notice to attend on the day named in sufficient time to ensure their attendance on that day.

19.8

Mode of recording evidence.—The evidence of each witness, as his examination proceeds, shall be taken down in writing by the Presiding Judge or in his presence and hearing and under his personal direction and superintendence.

19.9

Classification of habitual criminal by the presiding Judge.—The Judge presiding at the criminal sessions may (with a view to enable the prison- authorities to separate

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96 habitual convicts from others) classify as a habitual criminal any of the following persons convicted before him:— (a)

any person convicted of an offence whose previous conviction or convictions under Chapter XII, XVI, XVII or XVIII of the Indian Penal Code taken by themselves or with the facts of the present case show that he habitually commits an offence of offences punishable under any or all of those chapters;

(b)

any person committed to or detained in prison under section 123 (read with section 109 or section 110) of the Code of Criminal Procedure;

(c)

any person convicted of any of the offences specified in (i) above when it appears from the facts of the case, even although no previous conviction has been proved, that he is by habit a member of a gang of dacoits or of thieves, or a dealer in slaves or in stolen property;

(d)

any person convicted by a Court or Tribunal acting outside India under general or special authority of an offence which would have tendered him liable to be classified as a habitual criminal if he had been convicted in a Court established in India;

Provided that any person classified as a habitual criminal may apply for a revision of the classification, and the Judge may, either on such application or of his own motion, revise his classification.

Explanation.—For the purpose of this rule a conviction shall include an order made under section 118, read with section 110 of the Code of Criminal Procedure. 19.10

Action to be taken if the misconduct of the police comes to the notice of the Presiding Judge.—Where any instance of misconduct or abuse of authority by the police comes to the notice of the Judge presiding at the criminal sessions, the Clerk of the State shall inquire of the Judge whether he desires such instance of misconduct or abuse of authority by

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97 the police to be reported to Government, and in the event of the Judge so desiring, he shall communicate to Government accordingly. APPLICATION FOR BAIL 19.11

Bail application to whom to be made.—Applications for bail in respect of persons to be tried by the High Court shall be made to the Judge appointed to try the case but in the absence of such Judge, such applications may be made to the Judge in Chambers.

19.12

Application for bail of prisoner committed to Sessions.— When a person it to be tried by the High Court, application may be made on his behalf hat he may be bailed on giving 48 hours’ written notice to the Public Prosecutor. Such notice shall contain the names, residence and description of the persons whom he proposes as his sureties. The application shall be supported by an affidavit stating when, by whom, for what offence and under what circumstances the prisoner was committed and where he is detained in custody and the grounds for the application. A copy of such affidavit shall be served upon the Public Prosecutor with the said notice. The Public Prosecutor may file affidavits in opposition to the application and may appear to oppose the making of an order that the prisoner be admitted to bail.

19.13

Clerk of the State to write to Magistrate to produce depositions.— On the hearing of such application the Court may direct the Clerk of the State to write a letter directing the Magistrate by whom such prisoner has been committed to produce the depositions taken before him in the case, unless such depositions shall have previously been forwarded to the office of the Clerk of the State.

19.14

On Public Prosecutor consenting order on shorter notice.—The application mentioned in rule {13} may be made on any shorter notice than 48 hours if the Public Prosecutor consents thereto or waives his right to 48 hours notice, but in every case the written notice and affidavit mentioned in the said rule must be served on the Public Prosecutor before the

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98 application is made. 19.15

Amount of bail and number of sureties.—If the order be that the prisoner shall be released on bail, the Court shall direct to what amount such bail shall be taken and with how many sureties, and unless the Court approves of the names proposed as bail or shall otherwise direct, the Clerk of the State or his Deputy in his absence shall after examination, approve the same if he is satisfied of their sufficiency.

19.16

Prisoner may be released on entering recognizances.— Unless the Court shall otherwise order the recognizances of the sureties and of the prisoners shall be entered into before the Clerk of the State or his Deputy in his absence, and the Clerk of the State or his Deputy is authorised to direct by letter the Jailor, in whose custody the prisoner is, to bring up the prisoner before the Clerk of the State or his Deputy to enter into his recognizances, and on the prisoner being so brought up, the Clerk of the State or his Deputy may, on recognizances being entered into according to the Judge’s order, direct that the prisoner shall be released.

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99

CHAPTER 20 SPECIAL JURISDICTION : TESTAMENTARY AND INTESTATE JURISDICTION

20.1

20.2

20.3

Definitions.—In this chapter, unless there is anything repugnant in the subject or context: (a)

“Judge” means the Judge hearing testamentary matters.

(b)

“Letters of Administration” includes letters of administration with the will annexed;

(c)

“Will” includes a codicil.

Non-contentious matters.— (a)

Non-contentious matters shall include applications for probate or letters of administration or succession certificate and the obtaining thereof when there is no contest as to the right thereto.

(b)

They shall also include the issuing of probate or letters of administration or succession certificate in contentious cases when the contest is terminated, and

(c)

Shall also include all ex-parte applications in matters of testacy and intestacy, not being proceedings in any suit.

Powers of the Registrar-General.—The Registrar-General shall have full power to administer oaths or solemn affirmations in all matters relating to the testamentary and

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100 intestate jurisdiction of the Court, to issue subpoenas to bring in and lodge Testamentary papers and documents and to exercise in non contentious matters the powers conferred by the Indian Succession Act, 1925, on the District judge. 20.4

Application through Advocate or in person.—Application for probate or letters of administration or succession certificate shall be made either in person or through an Advocate entitled to practice in this Court.

20.5

Application by parties in person. Personal attendance.— Persons desirous of applying in person for grant of probate or letters of administration or succession certificate shall not apply by letter, but shall attend in person at the office of the Registrar-General, All fees payable by such parties shall be paid in advance in Court fee stamps.

20.6

Applications for (1) probate (2) Letters of Administration where the deceased has left a Will; and (3) Letters of Administration where the deceased died intestate.— (a)

Applications for (1) probate; (2) Letters of Administration where the deceased has left a Will or (3) Letters of Administration where the deceased died intestate shall be made by petition.

(b)

There shall be annexed to the petition: (i)

If for Probate or Letters of Administration with Will Annexed, a copy of the last will and testament of the deceased. If the will be not in the English language, an official translation thereof shall also be annexed. The original will shall be filed separately and kept by the Registrar-General in the strong room of his office.

(ii)

a schedule of the property and credits which the diseased died possessed of or entitled to at the time of his death which have or are likely to come to the petitioner’s hands,

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101

(c)

(iii)

a schedule showing the debts of the deceased and all other items which by a law the petitioner is allowed to deduct for the purpose of ascertaining the schedule the debts of the petitioner is allowed to deduct for the purpose of ascertaining the net estate of the deceased, and

(iv)

a schedule of property, if any, held by the deceased in trust for another and not beneficially or with general power to confer a beneficial interest.

(v)

the vakalatnama signed by the petitioner (Form No.5),unless the petitioner appears in person;

(vi)

in case of a probate petition, the executor’s oath (Form No.101); in case of Petition for Letters of Administration with Will annexed, the administrator’s oath (Form No. 106); and in case of a Petition for Letters of Administration on intestacy in Form No. 104 ;

(vii)

the affidavit of one of the attesting witnesses, it available, (Form No.102); and.

(viii)

a copy of the estate duty return, if filed with the Controller of Estate Duty.

The petition for probate shall be in Form No. 97; for Letters of Administration with will annexed in Form No. 105; and for Letters of Administration on intestacy in Form No. 103; with such variations as the circumstances of each case may require:

The Schedules to the petition shall be in Forms Nos.98, 99 and 100 respectively with such variations as the circumstances of each case may require. 20.7

Application for succession certificate.—The application for succession certificate shall be made by petition. There shall

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102 be annexed to the petition a schedule of the property of the deceased in respect of which the succession certificate is applied for. The petition shall be in Form No.110 with such variations as the circumstances of each case may require and shall be accompanied by— (a)

the vakalatnama signed by the petitioner (Form No.5), unless the petitioner appears in person;

(b)

the petitioner’s oath (Form No. 112); and

(c)

a copy of the estate duty return, if filed with the Controller of Estate Duty.

The schedule to the petition shall be in Form No. 111 with such variations as the circumstances of each case may require. 20.8

Name, etc., of petitioner and caveator in petition and caveat.—The name, place of residence, description and occupation, if any, of the petitioner shall be given in every petition and of the caveator in every caveat.

20.9

Verification of petition.—The petition for probate or letters of administration or succession certificate shall be subscribed by the petitioner and his Advocate on record (if any), and shall be verified by the petitioner in the manner prescribed for verification of filings as provided in these Rules.

20.10

Payment of Court fees.—The Court fees noted at the foot of the notice issued by the Registrar-General shall be paid within three days after receipt of such notice.

20.11

Certificate of Officer designated by Registrar-General for court fee paid in advance.—Every application for probate or for letters of administration or for succession certificate shall be accompanied by the certificate of the Registrar-General that the Court fee payable has been paid, unless the Court otherwise directs.

20.12

Delay in application.—In any case where an application for probate or letters of administration or succession certificate is made for the first time after the lapse of three years from the death of the deceased, the reason for the delay shall be

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103 explained in the petition. Should the explanation be unsatisfactory, the Registrar-General may require such further proof of the alleged cause of delay as he may deem fit. 20.13

Interlineations alterations, etc., in the will should be sworn to by the attesting witness.—When interlineations, alterations, erasures or obliterations appear in the will (unless duly executed as required by the Indian Succession Act, 1925, or recited in or otherwise identified by the attestation clause), a statement shall, if possible, be made in the affidavit of the attesting witness whether they existed in the will before its execution or not. If the attesting witness is unable to make the statement, he shall state so in the affidavit.

20.14

In absence of attesting witness other evidence to be produced.—If it is not possible to file an affidavit of any of the attesting witnesses, an affidavit of some other person, if any, who may have been present at the execution of the will shall be filed, but if no affidavit of any such person can be filed, evidence on affidavit shall be produced of that fact and of the handwritings of the deceased and attesting witnesses, and also of any circumstances which may raise a presumption in favour of due execution.

20.15

Production of deed paper etc., referred to in will.—If a will contains a reference to any deed, paper, memorandum, or other document of such a nature as to raise a question whether it ought not to form a constituent part of the will, such deed, paper, memorandum or other document shall be produced, with a view to ascertain whether it is entitled to probate and if not produced, its non production shall be accounted for.

20.16

Unsigned or unattested will.—In cases in which it is not necessary that a will should be signed by the testator or attested by witnesses to constitute a valid testamentary disposition of the testator’s property the testator’s intention that it should operate as his testamentary disposition shall be clearly proved by affidavit or otherwise.

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104 20.17

Attempted cancellation to be accounted for.—Any appearance of an attempted cancellation of a testamentary writing by burning, tearing, obliteration or otherwise, and every circumstance leading to a presumption of abandonment or revocation of such writing or part thereof shall be accounted for.

20.18

Application for probate of nun-cupative or privileged will.—Application for probate of a nun-cupative or privileged will shall be referred for disposal to the Court.

20.19

Disclosure of all persons having prior right to the grant.— The petition for letters of administration shall disclose the names of all persons having a prior right to the grant and shall state whether the party applying is the only next of kin or one of the next of kin of the deceased.

20.20

Administration to a creditor.—In all applications by a creditor for letters of administration, it shall be stated particularly how the debt arose.

20.21

Marking will.—Every will, copy of a will or other testamentary paper, which is sworn to or affirmed by an executor or administrator, shall be marked by the person before whom the oath or affirmation is made.

20.22

Proof of identity.—The Registrar-General may, in cases where he deems it necessary, require proof, in addition to the statements made in the petition for probate, or letters of administration or succession certificate, of the identity of the deceased or of the party applying for the grant.

20.23

Renunciation of probate or letters of administration.—No person, who renounces probate of a will or letters of administration to the property of a deceased person in one character, shall, without the leave of the Judge, apply for representation to the estate of the same deceased in another character.

20.24

Application by constituted attorney.—An application for letters of administration certificate may be made by a constituted attorney of a person residing out of the State of

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105 Maharashtra, provided that such constituted attorney resides within the State and that such application is made through an Advocate entitled to practice in this Court. 20.25

Proof of execution of power of attorney.—Unless a power of attorney appointing a constituted attorney can, under section 85 of the Indian Evidence Act, 1872, be presumed to have been executed and authenticated as in the said section mentioned, the Registrar-General may require further proof of its due execution.

20.26

Notice of application to whom to be given—The RegistrarGeneral shall give notice of all applications for probate or letters of administration to the Collector of Mumbai and the Superintendent of Stamps.

20.27

Notice to next of kin.— (a)

In all applications for probate, letters of administration and succession Certificate, notice of the application shall be given to all the heirs and next of kin of the deceased mentioned in the petition except to those whose consent has been filed in the proceedings.

(b)

In all applications for probate and letters of Administration the citation shall be affixed on some conspicuous part of the Court house and also in the office of the Collector of Mumbai.

(c)

In addition, (i)

the citation shall also be submitted by the Advocate or the party applying for probate, letters of administration or succession certificate to the Registrar-General for being uploaded to the designated and publicly accessible section of the High Court website.

(ii)

Such information shall be provided in both hard and soft copy in the prescribed format. Where possible, the information may be e-

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106 filed. (iii)

The particulars to be uploaded shall include and be as per the information on the hard copies of the citation posted as above. The same shall be verified by the RegistrarGeneral. The Advocate or party concerned shall submit a letter duly signed confirming that the soft copy uploaded contains all the information to be found in the hard copy.

(iv)

The citations page of the High Court website shall be a permanent record with a search feature. All previous citations, even after issue of probate, etc., shall be retained in searchable archives arranged chronologically by year.

(d)

In all applications for succession certificate, notice of the application shall be affixed on some conspicuous part of the Court house. The provisions of the preceding rule regarding publication on the High Court website shall apply mutatis mutandis to applications for succession certificates.

(e)

No grant of probate, letters of administration or succession certificate shall ordinarily be made until after the expiry of thirty clear days from (i)

the date of the service of the citation or notice, or from the publication thereof in newspapers, if required, or

(ii)

from the affixing thereof on the court house and in the Collector’s Office,

whichever is earlier, unless the Court otherwise directs. 20.28

Issue and return of processes.—All processes and citations shall issue from and be returnable to the office of the Registrar-General and shall be prepared, signed and dated by him or one of his assistants and sealed executed and returned, in the same manner as processes in suits on the

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107 Original Side of the Court. 20.29

Service of citations.— (a)

Mode of Service.—Notwithstanding anything contained in these Rules regarding service, citations shall be served personally by leaving a true copy of the citation with the party cited and taking his acknowledgment on the original.

(b)

Service by advertisement.—Citations which cannot be served in the manner provided by the preceding Rule or in the manner as the Registrar-General may direct shall be served by publishing the same in such local newspapers as the Registrar-General may direct.

20.30

Caveat.—Any person intending to oppose the grant of probate or letter of administration shall file a caveat in Form No. XX within thirty days from the service of the citation upon him or within such shorter time as the Court may direct. Notice of the filing of the caveat shall be given by the Registrar-General to the petitioner or his Advocate on record. The Court may extend the time to file a caveat, provided the grant has not in the meantime been issued.

20.31

Affidavit in support of caveat.— (a)

An affidavit in support of a caveat shall be filed within eight days from the date of the filing of the caveat, notwithstanding the Court vacations.

(b)

Such affidavit shall succinctly state (i)

the right and interest of the caveator, and

(ii)

the grounds application.

of

the

objections

to

the

(c)

The rules as to pleadings and filings in the Code of Civil Procedure, 1908 and in these Rules shall apply to such Affidavit.

(d)

A copy of the said affidavit shall be served by the caveator on the petitioner or his Advocate on record.

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108

20.32

(e)

If such affidavit is not filed within the prescribed time, the caveat shall not prevent the grant of probate or letters of administration.

(f)

No such affidavit shall be filed after the expiry of the said period of eight days without an order of the Court.

Procedure on affidavit in support of caveat being filed.— (a)

No later than two weeks after the date of filing of the affidavit in support of the caveat being filed, the caveat along with the Affidavit in Support thereof shall be placed before the Court hearing testamentary matters.

(b)

At such hearing, the Court may, suo-motu or on the application of the Petitioner(s)— (i)

If it is of the opinion that no case has been made out for refusing the grant of probate or letters of administration, reject the Caveat for reasons to be recorded;

(ii)

If it is satisfied a case has been made out requiring hearing but that the matter can be decided on affidavits, accept the Caveat and call for such further Affidavits as it thinks fit, and proceed to dispose of the matter without recording oral evidence.

(iii)

If it is of the view that evidence is required to be taken, accept the Caveat and direct that the Petition shall be numbered as a suit, in which case— (A) The petition shall be treated as the plaint and the affidavit in support of the caveat shall be treated as the Written Statement of the Caveator. (B) The petitioner shall be the plaintiff and the Caveator shall be defendant;

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109 (C) Notice of the fact that the petition has been numbered as a suit shall be given by the Registrar-General to the petitioner or his Advocate on record, such notice to be in Form No. XX; (D) The procedure in such suit shall as nearly as may be, be according to the procedure applicable to civil suits on the Original Side of the Court. (iv)

(c)

Pass such further order as it thinks fit; provided however, that no Affidavit in Reply to the Caveat/the Affidavit in Support thereof shall be permitted to be filed by the Petitioner.

Where there are two or more caveators and each of them has filed an affidavit in support of his caveat, such caveats will be listed together before the Court and the Court may accept one or more of such caveats and reject the others. Where more than one caveat is accepted, separate suit numbers shall not be given to the petition, but all the caveators whose caveats are accepted shall become party defendants in one suit.

20.33

Notice to prove will in solemn form.—In a testamentary suit, the party opposing the will may, with his affidavit, give notice to the party setting up the will that he merely insists upon the will being proved in its solemn form and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not, in any event, be liable to pay the costs of the other side, unless the Court is of the opinion that there was no reasonable ground for opposing the will.

20.34

Affidavit opposing grant of succession certificate.—Any person intending to oppose the grant of succession certificate shall, within fourteen days from the service of the notice upon him or within such shorter time as the Court may direct, file an affidavit stating his right and interest in the estate of the deceased and the grounds of his objection to the application.

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110 A copy of the said affidavit shall be served on the petitioner or his Advocate on record. The petition shall be placed on the board of the Court on a day to be fixed by the RegistrarGeneral. The Registrar-General shall notify on his notice board the date on which such petition shall be set down for hearing and he shall do so at least eight days before such date. If a party has appeared in person, the Registrar-General shall give notice of the date to such party by sending a letter to him by post under certificate of posting. At the hearing of the petition, the Court may make such order as it may deem fit. 20.35

Procedure when two or more petitions for succession certificate are filed.—When two or more petitions have been filed for the grant of a succession certificate, the petitions shall be placed on the board of the Court on a day to be fixed by the Registrar-General. The Registrar-General shall notify on his notice board the date on which such petitions shall be set down for hearing and he shall do so at least eight days before such date. If a party has appeared in person, the Registrar-General shall give notice of the date to such party by sending a letter to him by post under certificate of posting. At the hearing of the petitions, the Court may make such order as it may deem fit.

20.36

Provisions regarding indigent person to apply—The provisions of Order XXXIII of the Code of Civil Procedure and the rules relation to suits by indigent persons contained in Part II, Chapter XIII shall, with any necessary modifications, apply to applications for probate, letters of administration and succession certificate. In cases where the petitioner has been given leave to proceed as an indigent person the Registrar-General shall, before issuing the grant, place the papers before the Court and the Court may impose such terms and conditions on the petitioner as he thinks fit to secure payment of the court fees payable.

20.37

Search of proceedings.—Search of proceedings shall be granted only on precipes signed by the applicant or his Advocate on record.

20.38

Certified copies.—Certified copies of wills and other

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111 documents furnished by the office shall be signed by the Registrar-General or one of his assistants and shall be sealed with the seal of the Court. 20.39

Production of papers in other Courts.—No papers and proceedings filed in the office shall be produced in Courts other than the High Court without the order of the Court, and no original will filed in the office shall be produced in any place beyond the limits of the High Court, except in the custody of one of the clerks of the office of the RegistrarGeneral and under a like order.

20.40

Grants limited to State of Maharashtra.—All grants of probate or letters of administration shall, unless otherwise ordered, be issued by the Registrar-General so as to have effect only throughout the State of Maharashtra.

20.41

Grants throughout India.—In all cases in which it is sought to obtain a grant of probate or letters of administration to have effect throughout India, such grant shall be expressly asked for, and it shall be further stated in the petition that, so far as the petitioner has been able to ascertain or is aware, there are no property and credits other than what are specified in the schedule attached to the petition.

20.42

Amendment of grant to extend to India.—A grant limited to the State of Maharashtra may be amended on obtaining on order from the Registrar-General so as to extend its effect throughout India. The application shall be by affidavit stating where the additional property and credits are situated. The Registrar-General shall make the order for amending the grant on the petitioner paying the court fee in respect of the additional property and credits and in the case of grant of letters of administration on the petitioner giving a further bond in respect of the said property and credits.

20.43

Application for extension of succession certificate.—The Registrar-General may extend a succession certificate to any debt or security not originally specified therein. The application for such extension shall be by affidavit stating the particulars of the debt or security; and on payment of the

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112 court fee payable in respect thereof and on the petitioner giving a further bond, if required, the certificate may be extended. 20.44

Limited letters of administration.—Unless otherwise ordered by the Court, limited letters of administration shall not be granted unless every person entitled to the general grant has consented or renounced or has been cited and has failed to appear.

20.45

Limited grant not to be Issued to person entitled to general grant.—Unless otherwise ordered by the Court, a limited grant shall not be issued to a person who is entitled to a general grant of administration to the property of the deceased.

20.46

Blind or illiterate testator.—The Registrar-General shall not grant probate of the will or letters of administration with the will annexed of any blind or obviously illiterate or ignorant person, unless he is satisfied that the will was read over to the testator before its execution, and that the testator understood at such time the contents thereof.

20.47

Administration Bond Administration.—

20.48

in

the

case

of

Letters

of

(a)

In all cases of letters of administration, save and except under section 241, Indian Succession Act, 1925, the person to whom the grant is made shall give a bond in Form No. 118 with one surety and the bond shall, unless the Court otherwise directs, be given for the gross value of the estate. Such bond shall be prepared in the registry.

(b)

The exception made above in respect of a grant under section 241 shall not operate when the deceased is a Hindu, Muslim, Buddhist, Sikh or Jain.

Administration Bond in the case of succession Certificate.—In all cases of succession certificate, the person to whom the grant is made shall give a bond in Form No. 120 with one surety and the bond shall, unless the Court

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113 otherwise directs, be given for the gross value of the estate. Such bond shall be prepared in the registry. 20.49

Surety to be justified in certain cases.— (a)

20.50

In the following cases the surety to the bond shall justify for the whole amount of the estate:(i)

When the person to whom the grant is made has taken out letters of administration or succession certificate for the use and benefit of a lunatic or person of unsound mind, unless he be a committee of the estate of such lunatic appointed by the Court and has given security.

(ii)

When the person to whom the grant is made has taken out letters of administration or succession certificate for the use and benefit of a minor, unless he be a guardian of the property of such minor appointed by the Court and has given security.

(iii)

When the person to whom the grant of letters of administration or succession certificate is made is entitled to a life interest.

(b)

When the person to whom the grant of letters of administration or succession certificate is made is entitled to a portion only of the estate, the surety to the bond shall justify for the whole estate less the share of the grantee and of such sharers as shall consent in writing thereto.

(c)

In all other cases the surety may be a common surety. The Court may, however, in a proper case and for reasons to be recorded in writing dispense with the justification of surety.

Companies as sureties.—An approved company may be accepted as a common or justifying surety and in such cases the bond shall be given for the amount of the property for which the grant is to be made. The Registrar-General shall

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114 maintain a list of companies approved for this purpose by the Chief Justice. 20.51

Attestation of bonds.—Administration bonds shall be attested by a Gazetted Officer of the Court or the Chief Superintendent of the office of the Registrar-General or, if executed outside the Court house, by such person as may be nominated by the Registrar-General for that purpose.

20.52

Application under section 10 of the Administrators General Act, 1963.—An Application under section 10 of the Administrators General Act, 1963, (Act No 45 of 1963)shall be made by petition and presented to the Judge hearing testamentary matters in Court.

20.53

Probates etc., to be drawn up by the office.—All probates or letters of administration or succession certificates shall be drawn up by the office of the Registrar-General and shall be in Forms Nos. 121,122,123,124, 125,128 or 129 as the case may be, with such variations as the circumstances of each case may require.

20.54

Schedules of property etc., to be annexed to grant.— Copies of the schedules annexed to the petition for probate or letters of administration shall be annexed to the grant of probate or letters of administration.

20.55

Grant under section 254 of the Indian Succession Act.— Whenever under section 254 of the Indian Succession Act, 1925, the Court appoints as administrator a person other than the person who would have been entitled to the grant, the fact shall be so stated in the grant.

20.56

Registrar(O.S.)/Prothonotary may refer a matter to Court.—In the case of doubt or difficulty in any non contentious matter, the Registrar-General may refer the matter to the Court.

20.57

Registers of grants.—All grants of probate, letters of administration and succession certificate issued during a calendar year alongwith the wills and their translations, if any shall be copied out in registers to be maintained by the

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115 Registrar-General. 20.58

Certificate under section 274 (1) (a) of the Indian Succession Act.—With every certificate to be sent to a High Court under the provisions of section 274 (1) (a) of the Indian Succession Act, 1925, the Registrar-General shall send a copy of so much of the schedule of the property and credits of the deceased as relates to the estate within the jurisdiction of such Court.

20.59

Bills of costs in suits.—All bills in testamentary suits shall be taxed in the same manner as in other civil suits.

20.60

Notice by executor or administrator to creditors under sections 360 and 367 of the Indian Succession Act.— Where an executor or administrator has given notice to creditors and others in the form contained in Form No. 134 such notice shall be deemed to satisfy the requirements of sections 360 and 367 of the Indian Succession Act, 1925.

20.61

Notice to be given to parties of the filing of the account.— Executors, administrators and holders of succession certificate who have filed in the Court an account of their administration shall give notice thereof to all parties on whom the citation or notice had been served before the grant or who had waived service thereof, and shall within two weeks from the filing of the account file in the proceedings an affidavit proving service of such notice.

20.62

Disposal of petitions for non-prosecution.—All testamentary petitions, in which grants or certificates have not been issued owing to non prosecution of the petitions for one year after the petitions have been filed, shall be treated as disposed off and no action shall be taken on such petitions, unless an order is obtained from the Judge in Chambers giving permission to the petitioner to Proceed with the petition already filed.

20.63

Practice.—In cases not provided for by this Chapter, or by the rules of procedure laid down in the Indian Succession Act, 1925, or by the Code of Civil Procedure, the Judge may, if he

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116 thinks fit, follow the practice and procedure of the Probate Division of the High Court of Justice in England, so far as they are applicable and not inconsistent with this Chapter and the said Act and the said Code.

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117

CHAPTER 21 SPECIAL JURISDICTION : ADMIRALTY JURISDICTION

RULES FOR REGULATING THE PROCEDURE AND PRACTICE IN CASES BROUGHT BEFORE THE HIGH COURT UNDER THE COLONIAL COURTS OF ADMIRALTY ACT, 1890 (53-54 VICTORIA CH.27)

21.1

Definitions.—In this Chapter, unless there is anything repugnant in the subject or context: (a)

“Action in rem” means an Admiralty action in rem;

(b)

“Court” means the High Court of Judicature at Bombay;

(c)

“Judge” means a Judge of the said Court exercising jurisdiction under these rules;

(d)

“Limitation Action” means an action by the ship owners or other persons under the Merchant Shipping Act, 1958 as amended for the limitation of the amount of their liability in connection with a ship or other property.

(e)

“Officer designated by Registrar-General” means the Admiralty Registrar of the Court;

(f)

“Registry” means the office of the Registrar(O.S.)/Prothonotary and Senior Master;

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118 (g)

“Sheriff” means the Sheriff of Mumbai or the Deputy Sheriff or other officer who may be appointed to execute the process of the Court;

(h)

“Sheriff ’s Costs & Expenses” shall mean the costs and expenses arising out of the arrest or seizure and subsequent sale of the vessel. If the vessel is abandoned and if Court so directs on an application, having regard to the exigencies of the case, such costs and expenses may also include the cost of upkeep of the vessel and the subsistence of the crew.

(i)

“Suit” means any suit, action or other proceeding instituted in the Court in its Admiralty Jurisdiction.

21.2

Institution of Suits.—A suit shall be commenced by a plaint signed and verified according to the provisions of the Code of Civil Procedure, 1908.

21.3

Caveat against arrest of property.— (a)

Any person desiring to prevent the arrest of any property shall file in the registry a preceipe, signed by himself or his Advocate, who may be acting for him, requesting that a caveat be entered against the arrest of the said property and undertaking to enter an appearance in person or a Vakalatnama in any suit that may be instituted against the said property and undertake to give security in such suit in a sum not exceeding the amount to be stated in the preceipe or to pay such sum into the registry. The Caveat shall contain the name, address and email address of the Caveator. A caveat against the issue of a warrant for the arrest of the said property shall thereupon be entered in a book to be kept in the registry, called the “Caveat Warrant Book”. The Caveat Warrant Book shall reflect the amount of security that the Caveator is willing to offer.

(b)

The fact that there is a caveat against arrest in force shall not prevent a party from getting a warrant of

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119 arrest issued and the property to which the caveat relates, arrested. (c)

21.4

Where any property with respect to which a caveat against arrest is in force is arrested in pursuance of a warrant of arrest, the person at whose instance the caveat was entered may apply to the Court by a notice of motion for an order under this rule and, on the hearing of the application, the Court, unless it is satisfied that the person procuring the arrest of the property had a good and sufficient reason for so doing, may order discharge of the warrant of arrest and may also order such person to pay to the applicant, damages in respect of the loss suffered by the applicant as a result of the arrest.

Caveat against release of arrested property.— (a)

Any person desiring to prevent the release of any property under arrest shall file in the registry a precipe, signed by himself or his Advocate, who may be acting for him, requesting that a caveat be entered against the release of the said property. The Caveat shall contain the name, address ad email address of the Caveator and/or his Advocate as the case may be.

(b)

A caveat against the release of the said property shall thereupon be entered in a book to be kept in the registry, called the “Caveat Release Book”. The caveat shall mention the amount of the claims of the Caveator.

21.5

Property not to be released unless notice is given to the caveator.—No property arrested under a warrant shall be ordered to be released, unless notice is given to the person who has filed a caveat against the release thereof and whose caveat is outstanding in the Caveat Release Book.

21.6

Caveat against payment out of sale proceeds of property.—Any person desiring to prevent the payment out of Court of any money in Court representing the proceeds of

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120 sale of any property shall file in the registry a preceipe signed by himself or his Advocate who may be acting for him, requesting that a caveat be entered against payment out of Court of the said proceeds of sale. A caveat against the payment out of Court of such sale proceeds shall thereupon be entered in a book to be kept in the registry, called the “Caveat Payment Book”.The caveat shall mention the amount of the claims of the Caveator. 21.7

Duration of caveat.—A caveat, whether against the issue of a warrant, the release of property, or the payment of money out of the registry, shall be valid for six months from the date of its entry. The period of validity of a caveat shall not be extended, but this provision shall not be taken as preventing the entry of successive caveats.

21.8

Withdrawal of caveat.—A caveat may be withdrawn by the party on whose behalf it has been entered, but the preceipe to withdraw the caveat shall, unless otherwise permitted by the Officer designated by Registrar-General, be signed by the person who signed the preceipe for entering the caveat.

21.9

Application to set aside a caveat.— (a)

An application to set aside a caveat shall be made by Chamber Summons supported by affidavit. Such Chamber Summons shall be heard as expeditiously as possible.

(b)

Any person interested in release / setting aside of Caveat, (the Applicant) shall give a notice in writing to Caveator at the address notified in the Caveat requiring that the Caveat be released / withdrawn either unconditionally or on such terms as the Applicant proposes for release of the Caveat. The Applicant shall set out his interest in the release of vessel / property under arrest.

(c)

If the caveator does not wish to act / comply with the notice, he shall file his suit and move an application for the arrest of the vessel within two working days of

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121 the receipt of the notice. In the event of failure of the Caveator to do so, the Caveat shall be deemed to have been discharged. However, the time may be extended at the discretion of the Court, subject to such condition as the Court may deem fit. (d)

A party delaying the release of any property by the entry of a caveat shall be liable to be condemned in costs and be liable to pay damages to the applicant in respect of the loss suffered by the applicant by reason of the delay caused due to the entry of the caveat, unless he shall show, to the satisfaction of the Court, good and sufficient reason for having entered the caveat.

(e)

The Court will consider whether, at the behest of the Caveator, the arrest shall continue or the Caveat should be set aside.

21.10

Copy of Plaint in suit against property to be served before filing plaint, on party who has entered caveat.—Any person instituting a suit against any person in respect of which a caveat has been entered in the “Caveat Warrant Book” shall, before filing the plaint, serve a copy thereof upon the party on whose behalf the caveat has been entered or upon his Advocate and annex to the Plaint a statement of such service.

21.11

Party entering caveat to give security on filing of plaint.— Within three days from the filing of the plaint, the party on whose behalf the caveat has been entered shall, if the sum in which the suit has been instituted does not exceed the amount for which he has given the undertaking, give security in such sum or pay the same into the registry.

21.12

On default suit may proceed ex-parte.—After the expiration of three days from the filing of the plaint, if the party on whose behalf the caveat has been entered shall not have given security in such sum or paid the same into the registry, the plaintiff may apply to the Officer designated by RegistrarGeneral to set down the suit forthwith for hearing as an undefended suit : Provided that the Court may on good cause

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122 shown and on such terms as to payment of costs as it may impose extend the time for giving security or paying the money into the registry. 21.13

Judgment or the claim and enforcement of payment.— When the suit comes before the Court, if the Court is satisfied that the claim is well founded, it may pronounce judgment for the amount which appears to be due, and may enforce the payment thereof by order and attachment against the party on whose behalf the caveat has been entered, and by the arrest of the property if it then be or thereafter come within the jurisdiction of the Court.

21.14

Application to arrest property in a suit in rem.—If the suit is in rem an application for the arrest of the property proceeded against shall be made to the Court and shall be supported by affidavit. The affidavit shall state the nature of the claim and that it has not been satisfied. It shall also state the nature of the property to be arrested and if the property is a ship, the name and nationality of the ship. There shall be annexed to the affidavit a certificate of the Officer designated by Registrar-General certifying that search has been made in the Caveat Warrant Book and that no caveat has been filed against the issue of a warrant for the arrest of the said property. A party applying under this rule shall give an undertaking in writing, or through his Advocate, to pay such sum by way of damages as the Court may award as compensation in the event of a party affected sustaining prejudice by such order.

21.15

Execution of warrant of arrest of property.— (a)

Unless otherwise ordered by the court, a warrant of arrest may be executed only by the Sheriff or the Deputy Sheriff or his substitute.

(b)

A warrant of arrest shall not be executed if the person at whose instance it was issued lodges a request to that effect with the Sheriff.

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123 21.16

Arrest of vessel not to prevent loading/discharge, etc.— The arrest of a vessel shall not prevent loading and/or discharge of cargo or the vessel being shifted within port limits under directions of the Port Authority.

21.17

Nationality of the ship to be stated and notice to be given to Consul in suits for possession, wages or necessaries.— In a suit for possession or for wages or in respect of necessaries supplied, the nationality of the ship proceeded against shall be stated in the plaint, and if the ship is a foreign ship, notice of institution of the suit shall be given to the Consul of the State to which the ship belongs, if there be one resident in Mumbai.

21.18

Warrant with Court’s leave though particulars wanting.— The Court may in any case allow the warrant of arrest to be issued though the affidavit or plaint may not contain all the required particulars, and in a suit for wages may also waive the service of the notice.

21.19

Sheriff to serve process.—The Sheriff shall serve the process of the Court and shall return the process to the Registry within four days from the service thereof.

21.20

Service of Writ of Summons, writ or warrant of arrest, when dispensed with in suit in rem.— In a suit in rem no service of Writ of Summons or warrant of arrest shall be required, when the Advocate for the defendant agrees to accept service and to give security or to pay money into Court.

21.21

Service of writ of summons or warrant of arrest in a suit in rem how effected.— (a)

In a suit in rem the Writ of Summons or the warrant of arrest shall be served on the property against which the suit is brought.

(b)

Where the property is ship or cargo on board, service shall be effected by affixing the original Writ of Summons or the Warrant of Arrest for a short time on any mast of the ship or on the outside of any suitable

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124 part of the ship’s superstructure, and leaving a duplicate thereof affixed in its place, when removing the original Writ of Summons or the warrant of arrest. (c)

Where the property is cargo which has been landed or transhipped, service shall be effected by placing the original Writ of Summons or the warrant of arrest for a short time on the cargo and leaving a duplicate thereof upon the cargo, when removing the original Writ of Summons or the warrant of arrest.

(d)

Where the cargo is in the custody of a person who will not permit access to it, service shall be made upon the custodian.

(e)

Where the property is freight, service shall be effected by serving on the cargo in respect of which the freight is payable or on the ship in which the cargo was carried, in the manner hereinabove prescribed in this rule for service on a cargo or on a ship.

21.22

Sheriff may apply for directions.—The Sheriff may at any time make a report to the Court and apply for directions with respect to property under arrest in a suit. The Court may direct notice of the application to be given to any person concerned with the property before passing orders on the report.

21.23

Application for sale of arrested property.—In a suit in rem if the property proceeded against has been arrested, the plaintiff may, at any time after service of the Writ of Summons or the Warrant of Arrest upon the Defendant, apply to the Court by Notice of Motion for an order that the arrested property be sold by the Sheriff and the sale proceeds be paid into the registry to the credit of the suit. The Court may make such order for the appraisement and sale of the vessel on the application as it may think fit. Provided, however, no such order shall be passed unless the Plaintiff has issued an undertaking to the Court to bear all costs, charges and expenses connected with and/or associated with the sale of the arrested property.

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125 21.24

Interveners.— (a)

Where property against which a suit in rem is brought is under arrest or money representing the proceeds of sale of that property is in Court, a person who has interest in that property or money but who is not a defendant to the suit may, with the leave of the Judge, intervene in the suit.

(b)

An application for the grant of leave under this rule may be made ex-parte by affidavit showing the interest of the applicant in the property against which the suit is brought or in the money in Court.

(c)

A person to whom leave is granted to intervene shall thereupon become a party to the suit and shall file an appearance in person or a vakalatnama therein within the period specified in the order granting leave. On filing such appearance or vakalatnama, the intervener shall be treated as if he were a defendant in the suit.

(d)

The Judge may order that a person to whom he grants leave to intervene in a suit, shall, within such period as may be specified in the order, serve on every other party to the suit such pleading as may be so specified.

21.25

Judgment for the plaintiff if claim well founded.— When the suit comes up for hearing before the Court, if the Judge is satisfied that the plaintiff ’s claim is well founded, he may pass a decree for the plaintiff and may order the property proceeded against to be sold with or without previous notice and the sale proceeds paid into the registry to the credit of the suit or make such other order in the premises as he may think just.

21.26

Order for sale of property and determination of priority of claims.— (a)

Where in a suit in rem the Court has ordered the property proceeded against to be sold, any party who has obtained or obtains a decree or order against the said property or the proceeds of sale thereof may—

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126 (i)

In a case where the order for sale contains the further order referred to in sub-rule (b), after the expiration of the period specified in the order under sub-rule rule (b) (i), or

(ii)

in any other case, after obtaining judgment,

apply to the Court by Interim Application for an order determining the order of priority of the claims against the proceeds of sale of the said property. (b)

(c)

Where in a suit in rem the Court orders the property proceeded against to be sold, it may further order— (i)

that the order of priority of the claims against the proceeds of sale of the property shall not be determined until after the expiration of ninety days or of such other period as the Court may specify, beginning with the day on which the proceeds of sale are paid into Court;

(ii)

that any party to the suit or to any other suit in rem against the property proceeded against or the sale proceeds thereof may apply to the Court to extend the period specified in the order;

(iii)

that within seven days after the date of payment into Court of the proceeds of sale, the Sheriff shall send for publication in such newspapers as the Court may direct a notice complying with the provisions of sub-rule (c).

The notice referred to in sub-rule (b) shall state— (i)

that the property (particulars to be specified) has been sold by the order of the High Court in a suit in rem giving the number of the suit and the names of the parties to the suit;

(ii)

that the gross proceeds of the sale, specifying the amount thereof, have been paid into Court;

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127

21.27

(iii)

that the order of priority of the claims against the sale proceeds will not be determined until after the expiration of the period (specifying it) specified in the order for sale;

(iv)

that any person having a claim against the property or the proceeds of sale thereof, should apply to the Court for leave to intervene and prove his claim before the Court and obtain a decree before the expiration of that period.

(d)

The Sheriff shall lodge in the registry a copy of each newspaper in which the notice referred to in sub-rule (b) (iii) has appeared.

(e)

The expenses incurred by the Sheriff in complying with an order of the Court under this rule shall be included in his expenses relating to the sale of the property.

(f)

An application to extend the period referred to in subrule (b)(i) shall be made by Interim Application, which shall be served on the parties to the suit and on all persons who have obtained leave to intervene in the suit.

Release of arrested property.—Subject to the provisions of Rule, property arrested under a warrant may be ordered to be released: (a)

at the request of the Plaintiff, and all persons if any, who have entered Caveats in the Caveat Warrant Book before an appearance in person or a vakalatnama is filed by the defendant; or

(b)

on the Defendant paying into Court the amount claimed in the suit; or

(c)

on the Defendant giving such security for the amount claimed in the suit or such quantum of security as the Court may otherwise direct; or

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128 (d)

on any other ground that the Court may deem just.

21.28

Instrument of release.—Property arrested under a warrant shall only be released under the authority of an instrument issued by the Officer designated by Registrar-General, to be called an instrument of release.

21.29

Release by Sheriff on lodging praeceipe with the instrument of release.—The instrument of release when obtained shall be lodged with a praecipe in the office of the Sheriff by the party obtaining the same who shall also at the same time pay all costs, charges and expenses attending the care and custody of the property whilst under arrest, and the Sheriff shall thereupon release the property by taking all necessary steps in that regard.

21.30

Sales by order of the Court.—Every sale under the decree of the Court shall, unless the Judge shall otherwise order, be made by the Sheriff in like manner as a sale of movable property in execution of a decree in an ordinary civil suit, and the Sheriff shall be entitled to receive the same fees and poundage as he would be entitled to in such a case.

21.31

Procedure by Sheriff on sale of property.—The Sheriff shall pay into Court the gross proceeds of sale of any property sold by him, and shall at the same time bring into the registry the account of sale, with vouchers in support thereof, for taxation by the Taxing Master of the Court, to whom the same shall be transmitted by the Officer designated by Registrar-General for that purpose.

21.32

Assessors.— (a)

The Court may if it thinks fit, and shall upon request of either party to the suit, summons to its assistance, in such manner as it may direct two competent assessors who shall attend and assist the court in hearing any suit or cause relating to salvage, towage, or collision or issues arising out of navigation or seamanship; the parties will be entitled to call expert witnesses with leave of the court.

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129 (b)

Every such assessor shall receive his fees for his attendance, to be paid by such of the parties as the court may direct

21.33

Appearance before Taxing Master.—Any person interested in the proceeds may be heard before the Taxing Master on the taxation of the account of expenses, and an objection to the taxation shall be heard in the same manner as an objection to accounts filed before the Commissioner for Taking Accounts.

21.34

Payment of moneys.—All money to be paid into Court shall be paid to the Officer designated by Registrar-General.

21.35

Payment of money out of court.—Money paid into Court shall not be paid out of Court, except in pursuance of an order of the Court.

21.36

Security for latent demands.—Security for latent demands shall not, unless the Judge shall otherwise order be required on the payment of money out of Court.

21.37

Security.—If security is to be given, it shall be given according to the rules and practice of the Court regarding the giving of security in suits filed on the Original Side of the Court.

21.38

Fees of Officers, Sheriff and Advocates.—The fees to be taken by the officers of the Court, by the Sheriff and by Advocates shall be as prescribed for proceedings under the Original Civil Jurisdiction of the High Court.

21.39

Rules and practice of the O.S. to apply, if not inconsistent with the rules in this Chapter.—The rules and practice of the Court in the manner of suits and proceedings on the Original Side of the Court shall, if not inconsistent with the rules in this part, apply to suits and proceedings on the Admiralty Side of the Court.

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130 21.40

Forms of Admiralty Division may be followed.— (a)

(b)

21.41

Forms: (i)

The warrant of arrest shall be in Form XX;

(ii)

The instrument of release shall be in Form XX;

(iii)

The Registrar General’s Certificate certifying that there is no caveat against the arrest of the vessel shall be in Form XX;

(iv)

The caveat against arrest of vessel shall be in Form XX;

(v)

The caveat against release of vessel shall be in Form XX;

(vi)

The undertaking to pay damages shall be in Form XX;

In all other cases, the forms used in the Admiralty Division of the Supreme Court in England under the Rules of the Supreme Court or such other rules or directions for the time being in force may be followed with such variations as the circumstances of each case may require.

Supersession of rules.—The rules contained in this Chapter shall apply to suits brought in the Court in the exercise of its Admiralty and Vice-Admiralty Jurisdiction in supersession of all former rules.

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131 LIMITATION OF LIABILITY

21.43

Limitation of Liability.—Any action for limitation of liability filed by ship owners or other persons under Part XA of the Merchant Shipping Act, 1958 as amended shall be by way of a suit as contemplated in Chapter 21.

21.44

In a limitation action the person seeking relief shall be the Plaintiff and shall be described in the Plaint by his name.

21.45

The Plaintiff shall make one or more or all the persons with claims or possible claims against him in respect of the casualty/occurrence to which the action relates Defendant(s) to the Suit.

21.46

At least one of the Defendant(s) to the action must be named in the Suit by his name but the other Defendant(s) may be described generally (if not by their names).

21.47

Service of Writ of Summons.—The Writ of Summons must be served on one or more of the Defendants who are named by their names therein and all other known Claimants who may have claims against the Plaintiff(s).

21.48

Publication of institution of suit.— (a)

In addition to service of Writ of Summons, publication of the institution of the suit and the cause of action, reliefs claimed and the returnable date of Writ of summons shall be published in three prominent local newspapers in Mumbai, two English newspapers and one vernacular newspaper and in Lloyds List, London.

(b)

Where the casualty has arisen in a foreign country, the Court may in its discretion direct that the advertisement must also be placed in a local newspaper in that country.

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132 21.49

The Plaintiff(s) shall within two weeks of the service of Writ of Summons and publication of the notice in compliance with Rule 21.48 above file an Affidavit of Service in which the Plaintiff(s) shall state the following— (a)

The names and addresses of the Defendants who have been served with the Writ of Summons along with proof of service attached thereto.

(b)

The names of all the persons who, to the knowledge of the Plaintiff(s), have claims against the Plaintiff(s) in respect of the casualty to which the action relates, not being Defendant(s) to the action who are named in the writ by their names and the address of the persons, if known to the Plaintiff(s).

(c)

Proof of publication as provided in Rule 21.48 above.

21.50

Every Defendant(s) upon whom a Writ of Summons is served must within 3 weeks of such service file a Written Statement in court and serve a true copy thereof to the Plaintiff.

21.51

A restricted limitation decree may be obtained against any named Defendant(s) who fails to file a defense within the time specified for doing so; and a copy of the decree must be served on the Defendant(s) to whom it applies and such Affidavit of Service must be filed in Court within 15 days of such service having been effected on the Defendant(s). Such Defendant(s) would, however, may approach the Court within the time fixed in the decree to have the decree set aside.

21.52

Where one or more of the Defendant(s) upon whom the Writ of Summons has been served do not admit the Plaintiff ’s right to limitation of liability, suit vis-à-vis those Defendant(s) will then proceed for hearing. (a)

When a limitation decree is granted the court— (i)

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may order that any proceedings relating to any claim arising out of the occurrence be stayed and the vessels (if any) that are under arrest

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133 be released;

21.53

(ii)

may order the Plaintiff(s) to establish a limitation fund(s) in such monetary currency or currencies by depositing the amount so decreed into court and make such other arrangements for payment of claims against which liability is limited; or

(iii)

may order that any payments made by the Plaintiff(s) pursuant to individual or restricted limitation decree(s) shall be deemed to be payment made by the Plaintiff(s) as part of setting of limitation fund; or

(iv)

will, if the decree is a general limitation decree, give directions as to advertisement of the decree and set a time within which notice of claims against the fund(s) must be filed or an application made to set aside the decree.

When the court grants a general limitation decree the Plaintiff(s) must— (a)

advertise it in such manner as per Rule 21.48 above and within such time as the court directs; and

(b)

file a copy of such advertisements in the Court

21.54

Any person other than a Defendant(s) upon whom the writ of summons has been served may apply to the court within the time fixed in the decree to have a general limitation decree set aside.

21.55

An application under Rule 21.54 must be by way of an Interim Application— (a)

stating that the Applicant has a bonafide claim against the Plaintiff(s) arising out of the occurrence; and

(b)

setting out sufficient grounds for the contention that the Plaintiff(s) is not entitled to the relief given to him by decree, either in the amount of limitation or at all.

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134 21.56

The Plaintiff(s) may constitute an interim limitation fund(s) by making payment into court of the entire amount of liability in realisation of the claim as per Part XA of the Merchant Shipping Act, 1958 as amended.

21.57

Upon construction of an interim limitation fund, no vessel or property owned by the Plaintiff may be arrested or detained. Any vessel arrested, attached or detained by any claimant, belonging to such Plaintiff shall upon proof of constitution of an interim limitation fund(s) be released from arrest.

21.58

Service of proceedings for creation of an interim limitation fund(s) shall be in accordance with rules 21.47 and 21.48 above.

21.59

A limitation fund(s) may be established before or after a limitation claim has been started. The Limitation fund(s) however shall be final only after the court passes a decree in the limitation suit filed by the Plaintiff(s). (a)

Where a limitation fund(s) is established it must be: (i)

in the monetary currency or currencies as may be determined by this Hon’ble Court equivalent of the number of special drawing right to which the Plaintiff(s) claims to be entitled to limit his liability under the Merchant Shipping Act, 1958 as amended; together with

(ii)

interest if payable from the date of the occurrence giving rise to his liability to date of payment into Court.

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135

PART III

CHAPTER 22 FILINGS, GENERALLY

22.1

For the purposes of these Rules, “filings” includes all plaints, Written Statements, Petitions, Memoranda of Appeals, Affidavits, Applications and proceedings filed with the High Court registry.

22.2

All filings shall be typed or computer-printed in English using the following specifications: (a)

All filings shall be double spaced;

(b)

Paragraphs shall be sequentially numbered;

(c)

All filings shall have continuous pagination such that each filing begins with a page number immediately following the last page of the filing filed immediately prior thereto;

(d)

All filings shall be stitched along the left side. No filing may exceed, in one volume, more than 300 pages (150 leaves printed on both sides).

(e)

All filings shall have inner margins on all sides of at least 1.5 inches width and shall be printed on durable A4-sized white paper of 80 gsm weight and, shall as far as possible, be printed on both sides;

(f)

If computer-printed, all filings shall use the Times New Roman, Times, Georgia or equivalent serif font in minimum point size 12 and not exceeding point size 14;

(g)

Exclamation marks, underlining and bold face should not be used, except as otherwise permitted by these

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136 Rules. Italics are permitted for quotations or for words and phrases other than in English; (h)

All citations in the body text of the filing must be in the standard format of the journal cited and must mention the name of the case;

(i)

Amounts mentioned in the plaint shall be expressed in figures and sums of money in rupees and paise. When Indian dates are given, the corresponding English (Gregorian calendar) dates shall also be added. Generally, English/Gregorian calendar dates shall be in the format of date in digits, the full month in words and the full year in digits, eg. 08 December 2010. No commas shall be used within the date.

(j)

Every alteration, interlineation and erasure in a filing shall be authenticated by the initials of the officer before whom it is declared.

(k)

Copies of exhibits shall be annexed to the filing.

(l)

For all Original Side filings, if an exhibit is in a language other than English, an official translation of such exhibit shall be annexed to the filing, PROVIDED HOWEVER that if the original document is in Marathi an undertaking to furnish an office translation when required by the court shall be sufficient.

(m)

For all filings in the High Court, Exhibits annexed to the filing shall be marked separately and not collectively. Every exhibit shall commence on a new page and shall bear a separate numerical mark in serial order, such as Ex. “1”, Ex. “2” etc., followed by the abbreviation in brackets of the number of the party annexing such an exhibit; eg, Exhibit “1(P)” to indicate the first exhibit annexed by the Plaintiff or the Petitioner; Exhibit 24(R2) to indicate the twentyfourth exhibit annexed by the 2nd Respondent, etc. Such reference shall be printed in bold and underline, eg., Exhibit “1”. Alphabets should not be used in

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137 marking Exhibits. Reference to the Exhibit mark may optionally be given in the margin of the filing (in bold and underlined font). (n)

The pages of the filing with all its annexures shall be numbered serially.

(o)

A particularized index shall be prepared of the filing and its annexures, showing the distinctive page numbers of each annexure/exhibit. Where a single filing spans more than one volume (each volume being of a maximum of 200 leaves whether or not these are printed on both sides), each volume shall have such a detailed index, and the page numbering shall be continued in each additional volume from the last page number of the preceding volume. Additional Volumes shall also bear a mark on the first page, above the index, indicating the volume number.

(p)

All filings initiating a proceeding with their annexures shall be stitched together bookwise in the following order, viz. (i)Index, (ii) filing, (iii) Vakalatnama (if applicable), (iv) Memorandum of Registered Address (if applicable) and (v) Copies of Exhibits.

22.3

Powers of the office to reject papers not properly typed or not in conformity with rules.—The office may refuse to accept any such papers which are not typed as prescribed or which do not conform to the requirement of these rules PROVIDED THAT the Registrar may, if he deems fit, on application of a party or his Advocate, direct the office to accept a matter not complying with the above rules and grant time to the party or his Advocate not exceeding 14 days for such compliance.

22.4

Copies of Photographs if relied on, to be furnished to the other side.—When photographs are annexed as exhibits to a pleading or when photographs are disclosed and relied on, the party seeking to use them shall, on request, furnish a sufficient number of copies of such photographs to the other side.

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138 22.5

Particulars of claim to be annexed to plaint.—Where a plaintiff seeks to recover a debt or a liquidated sum of money, there shall be annexed to the plaint particulars of the plaintiff ’s claim.

22.6

Filings to be verified and before whom.—All filings shall be verified within the local jurisdiction, before one of the officers of the Court appointed in that behalf and elsewhere in India before the officer indicated by the Section 139 of the Code of Civil Procedure, 1908. The verification shall be in Form No. xxx.

22.7

Affirmation by declarant from knowledge and belief.—The declarant shall state what paragraphs or portions of his filing he swears or solemnly affirms to from his own knowledge and what paragraphs or portions he swears or solemnly affirms to on his own belief, stating the grounds of such belief.

22.8

Identity of declarant.—The Officer, before administering oath or affirmation and certifying the filing, shall satisfy himself as to the identity of the declarant who shall be either known to the Officer personally or identified before him by a person whom he personally knows or whose identity is duly established to the satisfaction of the officer by any of the following documents, namely Passport, Driving Licence, Voters Identity Card, PAN Card, or Photo Identity Card, issued by any Government Department. The manner in which the identification is made shall be certified by the Officer administering the oath.

22.9

Deputation of officers for oaths and affirmations.— (a)

Whenever an oath or a solemn affirmation is required to be administered to a party outside the offices of this Court for the purposes of any proceedings pending or intended to be filed in this Court, or for the purposes of any proceedings arising from a proceeding filed in this Court, the Registrar, on a request by the party or party’s Advocate, may depute for the purpose one of the officers of this Court empowered to administer oaths and solemn

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139 affirmations or, in the case of a District Court, any registrar from such District Court. (b)

Such officer shall, in addition to the usual fee prescribed under the Rules for administering oaths and solemn affirmations and to be recovered in the form of court-fee stamps, be entitled to charge fees in cash as specified in the table appendix XX to these Rules.

(c)

The party or the Advocate concerned shall, at his own cost, be required to provide conveyance both ways to the officer between the Court-house and the place of attendance.

(d)

A single fee in cash as provided above shall be chargeable for any number of oaths and solemn affirmations administered at one place on one occasion.

(e)

The fees recovered as provided above shall be credited to Government if the attendance is required during office hours, and if the attendance is required outside office hours and on Sundays and holidays, the officer shall be entitled to appropriate the said fees to himself.

22.10

Presentation of proceedings by a party in person.—The presentation of any matter or proceeding by any person not represented by an Advocate shall be made by such person personally.

22.11

Language of proceedings presented by party in person.— Matters presented by the party personally may be either in Marathi or in English; Provided that the party or the Advocate shall be required to put at his expense official translations of the same in English whenever a specific order in that respect is passed.

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140 22.12

Presentation of proceedings of parties represented by Advocates.—The presentation of any matters or proceedings on behalf of a party by an Advocate shall be made by such Advocate personally or by his registered clerk.

22.13

Language and other requirements of proceedings presented by Advocates.—Matters presented by Advocates shall be in English, and shall be signed by the Advocate concerned or by any other Advocate on his behalf provided that the Advocate concerned ratifies the same by affixing to it his signature within one week of the date of its being filed in Court.

22.14

Plaint to be lodged before presentation— (a)

A plaint in which leave of the Court is to be applied for shall, except in cases of special urgency, be lodged for examination before 4.15 p.m.

(b)

All other filings shall be lodged with such officer as the Officer designated by Registrar-General may direct.

22.15

Plaint to be properly stamped.— The plaint and documents therewith, when so lodged, shall be properly stamped with uncancelled stamps ready for filing.

22.16

Power to decide office objections.— (a)

Within two working days from the date of presentation of the filing, the same shall be scrutinized for any office objections, especially as to jurisdiction, appropriate court fee and the like.

(b)

After the filing is scrutinized, if any office objection is raised for examination of the filing, the office objections shall be immediately notified on the High Court website case status system along with a date when Officer designated by the Registrar shall hear the Advocate/party in regard thereto and which shall be no later than two weeks from the date when the office objections are raised.

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141 (c)

On hearing the party or the Advocate, the Officer designated by Registrar-General may decide the office objection and order the filing to be registered.

(d)

If the office objections are not removed within 10 days of the same being notified to the Advocate/party in person, the filing shall be put up before the RegistrarGeneral for non-removal of office objections.

(e)

If the designated officer finds that a plaint is required to be rejected in view of the provisions of Order VII Rule 11(a) of Code of Civil Procedure, he shall submit the same to the Judge together with his reasons for further order. The Judge may, upon hearing the party of his Advocate, pass such order as he deems fit.

22.17

Office to raise objection of limitation where necessary copies are not filed within limitation.—The office shall note in particular whether a certified copy of the judgement or order which is required to be filed along with the appeal or the application for a valid presentation thereof is filed within the period of limitation prescribed for the appeal or the application. If it is found that such copy is not filed within the prescribed period of limitation, the office shall treat that the matter as filed beyond the period of limitation.

22.18

Statement showing matter is within limitation to accompany matter.— (a)

Every matter presented to the Court shall be accompanied by a statement showing how the same is within the period of limitation prescribed for it.

(b)

Matters beyond limitation to be accompanied by application for condonation of delay.—If it is beyond the prescribed period of limitation it shall be accompanied by an application for condonation of the delay staling the circumstances under which the delay has occurred and the grounds for excusing the same.

(c)

Office not to accept matters not in conformity with the rule.—Any matter not complying with the

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142 requirements of this rule shall be not accepted by the office. 22.19

22.20

Registrar to be moved by a note against refusal to accept on the ground of limitation.— (a)

The Advocate or the party aggrieved by the refusal of the office to accept the matter under the foregoing rule may, within a period of seven days from such refusal, require by a note that the matter be placed before the Registrar for orders regarding the question of limitation. When such note is presented the matter shall, forthwith be placed before the Registrar for orders, If the matter is not placed before the Registrar within seven days from the filing of the note, the party of the Advocate shall move the Registrar for orders on the note.

(b)

Court to be moved within seven days by a note against Registrar’s order.—If the Registrar upholds the contention of the office, and if the Advocate or the party is dissatisfied with the order of the Registrar, he shall file a note within seven days from the date of the order of the Registrar for placing the matter before the Court for revision of the Registrar’s orders, and the office shall forthwith place the matter before the Court. If the office fails to place the matter before the Court within three days from the filing of the note, the party or the Advocate shall move the Court for orders on the note.

Dismissal of suit on application of plaintiff, to be a bar to fresh suit.—Where on the application of the plaintiff the Court dismisses the suit either for want of prosecution or for any other reason, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.

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143 22.21

Form of appearance/vakalatnama to be filed on behalf of a party.— (a)

Where a party appears in person, he shall file an appearance in Form No. XX.

(b)

Where a party appears by Advocate who, under the rules is entitled to act, appear and plead on the Original Side, the Advocate shall file a vakalatnama in Form No. XX.

22.22

Removal of a suit for trial to High Court from any Subordinate Court.—When an order is made by the High Court, Appellate Side, under the Extraordinary Civil Jurisdiction for the removal of a suit from any Subordinate Court, the Registrar, High Court, Appellate Side, shall transfer the papers in such suit, when received, to the Officer designated by Registrar-General, who shall treat the suit as suit filed on the Original Side and shall enter it in the General List of suits.

22.23

Notes to be filed for limited purposes only.—The extant practice of filing of precipes shall be stopped. All applications requiring a judicial order shall be made by way of an Interim Application as provided in these Rules. For applications not requiring a judicial order, including applications for production of papers, circulation of matters and other administrative matters, a note shall be filed in the office by the Advocate or the party in person, which shall be in the form of a simple letter addressed to the Registrar-General, the Prothonotary & Senior Master or the officer concerned, giving the short title of the matter and specifying the purpose of filing of the note.

22.24

Certain Interim Applications exempted from verification by the party.—Interim Applications for speaking to the minutes or other similar purposes being in the nature of routine applications for correction of typographical mistakes or corrections in the order and the like shall not be required to be affirmed or verified by the party on whose behalf the same is filed, provided that the same are filed under signature of

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144 the Advocate on record and are accompanied by (a) a specific prayer that such affirmation and verification be dispensed with; and (b) a specific averment, shortly stated, to the effect that the application being made is in the nature of a routine application for correction of typographical errors or corrections in the record, etc. 22.25

22.26

Interim and ad-interim reliefs, how to be prayed for and form of pleadings.— (a)

In any matter where interim reliefs are sought, it shall not be necessary to set out in the body of the pleading the full text of the interim relief but it shall be sufficient to only state that in view of the facts and circumstances pleaded the party is entitled to interim and ad-interim reliefs and also setting out the necessary averments regarding balance of convenience, urgency and irreparable injury, etc. Where any particular interim relief sought requires a specific pleading, it shall be sufficient to set out the pleading or averment but not the relief itself.

(b)

In the prayers, all interim reliefs shall be in distinctly number sub-prayer clauses grouped together under a common prayer clause for interim reliefs.

Compulsory E-Filing.— The Court may prescribe and periodically amend rules and procedures for compulsory efiling. The same shall be appended in a Schedule or Annexure to these Rules and shall, when so prescribed, be deemed to be incorporated in these Rules in extenso.

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145

CHAPTER 23 PROCEDURE AFTER PRESENTATION, REMOVAL OF OFFICE OBJECTIONS, ETC

23.1

Cancellation of stamps.—The court-fee stamps on all the memoranda of appeals or cross-objections, on applications and other documents presented in the office shall be cancelled on the day of presentation or within a reasonable time from the date of presentation, but invariably before the document is filed or registered.

23.2

When enquiry need not be made regarding difference in court-fee paid.—When the court-fee paid on an appeal is found to correspond with the court-fee paid and accepted in the Court below, no further enquiry need be made, unless it appears that the court-fee has been assessed on a mistaken principle and that a different court-fee stamp is required on the appeal.

23.3

Examination of matters filed.— (a)

Procedure for and the manner of examining matters filed.—The office shall examine every memorandum of appeal or cross-objections and every application as soon as possible after it is filed and prepare in duplicate a memorandum of objections in regard to the same. Where the objection relates to the valuation of the claim made in the memorandum of appeal or cross-objections or in any application or to the court-fee to be paid on such memorandum of appeal or cross-objections or application or on any copy or documents required to be Filed therewith, the office shall state what in its opinion the correct

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146 valuation is and what the correct amount of court-fee payable is. Such memorandum of objections shall be made ready within ten days from the date of Filing, provided that, in respect of matters filed on the reopening day of the High Court after the Summer Recess such memorandum may be completed within 21 days from the date of Filing. (b)

Manner of notifying office objections.—As soon as the memorandum of objections is ready the office shall notify the matter on the Notice Board under the signature of the Assistant Registrar calling upon the party or the Advocate concerned to remove the office objections within 14 days from the date of such notification. The matters shall be notified with reference to the stamp numbers or the Register Numbers, as the case may be, the District from which they arise and the names of the Advocates, if any. A copy of the notice shall be kept filed in the office, and a copy of the same shall also be supplied to the Advocates Association of Western India. The office shall also endorse on the memorandum of objections and its duplicate the date on which the matter was notified as above.

(c)

Period within which office objections should be removed.—The Advocates or the parties concerned shall receive from the office a copy of the memorandum of objections after acknowledging receipt thereof and shall remove all the objections within the 14 days allowed under the foregoing subrule.

(d)

Special provision for party appearing in person.— Notwithstanding anything contained in the foregoing sub-rules, where a party appears in person, the, office shall arrange to give him under acknowledgement the memorandum of objections on the very day on which the presents the matter, unless the party agrees to call at a later date, in which case the office may give him a

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147 fixed date convenient to him (but not later than ten days from the date of the presentation of the matter) on which he should call at the office for receiving the memorandum of objections, and the office shall keep the memorandum of objections ready on the said day and deliver it to him under acknowledgment. The party in such cases shall be required to remove the objections within 14 days from the date of the receipt of the memorandum of objections. In case the party fails to turn up on the appointed day, the procedure prescribed under sub-rule (ii) and (iii) shall be followed. 23.4

Office objections relating to claim and court-fee.— (a)

Manner of dealing with office objections relating to claim and court-fee.—Where the objection relates to the amount of claim in respect of any memorandum of appeal or cross-objections of any application, or where the objection relates to the amount of court-fee to be paid on any memorandum of appeal or cross-objections or any application or on any copy or document required to be filed with the memorandum or the application, the party or the Advocate shall amend the claim or make good the deficit court-fee within the period of 14 days allowed under the foregoing rule. If he disputes the office objection, he shall file within the said period a note staling how the objection raised by the office is not tenable and how the claim stated by him or the courtfee paid by him is the correct one. In either case the objection shall be deemed to have been removed.

(b)

Dispute regarding claim or court-fee to be referred to the Taxing Officer.—Where a note has been filed disputing the office-objection in relation to the claim or the court-fee under the foregoing sub-rule, the office shall, unless it is satisfied with the explanation given by the party or the Advocate, refer the matter,

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148 within three days from the filing of the note to the Taxing Officer for deciding the dispute. (c)

Taxing Officer to decide dispute within 14 days.— The Taxing Officer shall decide the dispute referred to him within 14 days from the date of reference.

(d)

Procedure where the decision of the Taxing Officer is accepted.— if the decision of the Taxing Officer is against the party or the Advocate and if he accepts the decision of the Taxing Officer, he shall accordingly amend the claim or make good the deficit court-fee within 14 days from the date of the decision of the Taxing Officer.

(e)

Procedure where the decision of the Taxing Officer is disputed.—If the party or the Advocate disputes the decision of the Taxing Officer, he shall make the necessary Revision Application against the decision of the Taxing Officer to the Court and shall amend the claim or make good the deficit court-fee, if so required, as per the decision of the Court within 14 days from the decisions of the Court.

(f)

Registrar to refuse registration if claim is not amended or deficit court-fee is not made good within time allowed.—If the party or the Advocate fails to amend the claim or make good the deficit court-fee within the period prescribed therefor under sub-rules (iv) and (v), the Registrar shall refuse registration of the matter.

(g)

All other objections to be removed within time prescribed though dispute regarding claim or court-fee is not finally decided.—Notwithstanding that the objection regarding claim or court-fee is not finally decided, the party or the Advocate shall be bound to remove all other objections within the prescribed time.

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149 23.5

23.6

Registrar to refuse registration where objections are not removed within prescribed time.— (a)

Except as provided in Rule 4, immediately after the expiry of the period prescribed under Rule 3 for the removal of office objections, the office shall place before the Registrar all such matters in which all or any of the objections have not been removed within the prescribed time and the Registrar shall refuse registration of all such matters:

(b)

Registrar’s Powers to condone delay and order registration.—Provided, however, that, if the party or the Advocate removes all objections within a period of 14 days next after the expiry of the period prescribed under Rule 3 and also makes a regular application with the necessary court-fee stamp for excuse of delay in removing the objections, the Registrar may excuse the delay and order that the matter be registered:

(c)

Special provisions when objections are removed within the period of limitation prescribed by the Limitation Act.—Provided further that if a matter is still within the period of limitation allowed under the Limitation Act, 1963, even though the period prescribed under Rule 3 may have expired, no regular application with the necessary court-fee stamp for excusing the delay shall be necessary, but that an ordinary note explaining the position under the Limitation Act, 1963, and requesting that the matter be registered would be sufficient, and the Registrar, if satisfied that the matter is still within the period of limitation prescribed by the Limitation Act, 1963 shall order the matter to be registered.

Procedure for revision of the Registrar's order refusing registration.—Notwithstanding anything contained in Rule 7 of an order of the registrar refusing registration of any matter under the foregoing rules of this Chapter shall be revisable only upon a regular stamped application which shall be filed within seven days from date of the order of the Registrar

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150 complained of, provided that the Court may, for good cause shown, condone the delay in making the application. Such application shall, unless dispensed with by the Court, be supported by an affidavit explaining the circumstances under which the objections could not be removed within the time allowed. 23.7

Registration of matters.—Where all office objections are removed within the time prescribed by Rule 3 or the delay has been excused under Rule 5 or 6, the officer shall take orders from the Assistant Registrar for admission of the matter to the file after which the matter shall be immediately entered in the appropriate register. Such matter shall be entered in the register and shall be numbered in accordance with the serial number of sequence of the entries in the register.

23.8

Registration of matters under Special Acts.—Appeals presented under Special Acts, such as the Indian Succession Act (XXXIX of 1925), the Guardians and Wards Act (VIII of 1880), etc. shall be registered in the ordinary way as First or Second Appeals, as the case may be.

23.9

Papers to be returned when registration is refused.— Whenever registration of any appeal, memorandum of crossobjection or application is for any reason refused by the Registrar, the papers shall be returned to the party or the Advocate who presented the same.

23.10

Kinds of registers to be maintained.—The office shall maintain separate register for each of the following classes of proceedings for each calender year:— (a)

First Appeals.

(b)

Second Appeals.

(c)

Letters Patent Appeals.

(d)

Appeals from Order.

(e)

Civil Revision Applications.

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151

23.11

(f)

Special Civil Applications under Articles 226, 227 and 228 of the

(g)

Constitution.

(h)

Civil Applications for Interlocutory Orders.

(i)

Miscellaneous Civil Applications.

(j)

Civil References-

(k)

Proceedings under the Companies Act.

(l)

Register of cases not Prosecuted.

(m)

Register of Transferred Suits.

(n)

The Family Court Appeals.

(o)

Contempt Petitions.

(p)

Contempt Appeals.

(q)

Review Petitions.

(r)

Tax Appeals.

(s)

Arbitration Petitions.

(t)

Public Interest Litigation Matters.

Special procedure where matters are required to be placed before Court before removal of objections.— (a)

Notwithstanding anything contained in the foregoing rules, any matter which a party or an Advocate requires to be placed before the Court before the removal of office objections, shall be registered subject to office objections and may, subject to the special or general orders of the Court taking such matters, be placed before the Court, provided the party, where he appears in person, and in other cases the Advocate, undertakes in writing personally to remove the office objections including objections in regard to court-fee. If any such matter placed before the Court is admitted, the office shall specify all the

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152 objections within seven days from the date of the order admitting the matter and the party or the Advocate, as the case may be, shall remove the office objections within 14 days from the date of the Court's order admitting the matter failing which the matter shall be placed before the Court which may dismiss it for want of prosecution: (b)

Certain objections to be waived where the matter is summarily rejected.—Provided that where such matter is dismissed summarily, all objections, excepting those relating to court-fee and Vakalatnama and those of which the objections relating to court-fee are based, shall be waived.

23.12

Where certified copies are not supplied within ten days, explanation to be called from lower Court.—If in any case the time shown by the endorsement to have been occupied in obtaining a copy of the decree, judgment or order is found to be greater than 10 days. an explanation of the delay should be obtained from the lower Court and Registrar should submit the same, if he considers it necessary, to one of the Administrative Judges.

23.13

Refund of excess of court-fee paid through inadvertence etc.— (a)

If it appears to the office at any time that a court-fee of greater value than is required has been affixed to a memorandum of appeal or cross-objections or to an application through inadvertence, mistake, or miscalculation, the matter shall be placed immediately before the Taxing Officer and upon his so certifying, a refund certificate shall be granted to the party or the Advocate, before admitting the matter to the appropriate register.

(b)

Refund of excess of court-fee on conversion of one kind of proceeding into another.—If as a result of one kind of proceeding being converted into another under the order or with the permission of the Court a

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153 lower court-fee becomes payable on the converted proceeding, a refund certificate for the amount of difference between the amount of court-fee paid on the original proceeding and that payable on the converted proceeding shall, after obtaining the orders of the Taxing Officer, be granted to the party or the Advocate concerned before admitting the converted matter to the appropriate register.

23.14

(c)

Refund of court-fee paid through oversight where party is entitled to exemption.—If it is found that in any case a party entitled to any statutory exemption in respect of court-fee has paid any court-fee which the party was exempt from paying, a refund certificate for the amount of court-fee covered by the exemption shall, after obtaining the order of the Taxing Officer, be granted to the party or the Advocate concerned, before admitting the matter to the appropriate register:

(d)

Special powers of the Registrar in the matter of refund of excess of court-fee.—Provided that the Registrar on a note being presented to him by the party or the Advocate concerned in this behalf shall have the power to order the issue of the necessary certificate under sub-rules (i), (ii) and (iii) notwithstanding that the matter has been admitted to the register before granting the refund certification required, and

(e)

No certificate of refund in respect of sums less than Rs.3.—Provided further that no such certificate shall be granted under sub-rules (i) and (ii) for any sum less than Rs. 3 in any one case.

Amount of court-fee refunded to be endorsed on document.—Where the refund certificate is granted in respect of the whole or part to any amount of court-fee, a statement of the amount of refund shall be annexed or endorsed under the signature of the Registrar on the document to which such court-fee stamps were affixed.

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154

CHAPTER 24 WRIT PETITIONS UNDER A. 226 (INCLUDING HABEAS CORPUS) AND APPLICATIONS UNDER A.227

24.1

Definitions.—In this Chapter, (a)

The expression “order” means any order passed by a quasi-judicial or administrative authority under any statute but shall not include a mere notice or demand

(b)

The expressions “Subordinate Court” and “Subordinate Courts or Tribunals” mean and include all labour courts, industrial courts, the Charity Commissioner, School and University Tribunals, the Cooperative Courts, the Maharashtra Revenue Tribunal and such other courts or tribunals as may be prescribed by notification from time to time, but shall not include: (i)

The Caste Scrutiny Committee;

(ii)

Any tribunals constituted under the special acts mentioned in Articles 323A or 323B of the Constitution; and

(iii)

Any authority or committee constituted under or pursuant to any orders or directions of the High Court.

(iv)

Courts or Tribunals which are required to be presided over only by former Judges of the Supreme Court or the High Court, excluding the Courts and Tribunals referred to above;

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155 (v)

24.2

24.3

Any authority or tribunal as may be specified from time to time either by notification or by an order of a Division Bench of two or more judges.

Jurisdiction to be exercised by a Division Bench.—The following Petitions/Applications shall be heard and disposed off by a Division Bench of two judges, viz.:— (a)

All Petitions invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or seeking writs, order or directions in the nature of Article 226 of the Constitution of India;

(b)

All Petitions other than those referred to in the preceding Rule invoking Article 226 of the Constitution of India wherein reliefs under Article 227 of the Constitution of India are also sought, except those in which an order of a Subordinate Court is challenged or impugned;

(c)

Any Petition in which there is a vires challenge;

Petitions and Applications which may be disposed off by a Single Judge.— (a)

All applications under Article 227 of the Constitution of India;

(b)

Save as provided herein, all Writ Petitions impugning orders of Subordinate Courts;

shall be heard and decided by a Single Judge of the High Court. 24.4

All other Writ Petitions to be heard by a Division Bench.— All other Writ Petitions not otherwise provided for in the preceding Rules in this Chapter shall be heard and disposed off by a Division Bench consisting of two judges.

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156 PART V : ORIGINAL SIDE WORK

CHAPTER 25 PLAINT AND INSTITUTION OF SUIT

25.1

Particulars of claim to be annexed to plaint.—Where a plaintiff seeks to recover a debt or a liquidated sum of money, there shall be annexed to the plaint particulars of the plaintiff ’s claim.

25.2

Plaint to be lodged before presentation— (a)

A plaint in which leave of the Court is to be applied for shall, except in cases of special urgency, be lodged for examination before 4.15 p.m.

(b)

All other filings shall be lodged with such officer as the Officer designated by Registrar-General may direct.

25.3

Plaint to be properly stamped.— The plaint and documents therewith, when so lodged, shall be properly stamped with uncancelled stamps ready for filing.

25.4

Removal of a suit for trial to High Court from any Subordinate Court.—When an order is made by the High Court, Appellate Side, under the Extraordinary Civil Jurisdiction for the removal of a suit from any Subordinate Court, the Registrar, High Court, Appellate Side, shall transfer the papers in such suit, when received, to the Officer designated by Registrar-General, who shall treat the suit as suit filed on the Original Side and shall enter it in the General List of suits.

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157

CHAPTER 26 WRIT OF SUMMONS

26.1

Summons to defendant.— The Writ of Summons to appear and answer shall be in one of the Form Nos. xx, xx and xx as may be applicable to the case with such variations as the circumstances of the case may require.

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158

CHAPTER 27 SPECIAL PROVISIONS REGARDING WRITTEN STATEMENT, SET OFF AND COUNTER-CLAIM

27.1

Payment with denial of liability.— (a)

In an action for damages the defendant may at any time after he has filed his appearance in person or a vakalatnama pay into Court a sum of money in satisfaction of the plaintiff ’s claim with a denial of liability.

(b)

Notice of such payment shall be given to the plaintiff. The notice shall be in Form No.XX with such variations as the circumstances may require.

27.2

Mode of withdrawing money paid with denial of liability.—After the money is paid into Court under the last preceding rule, the plaintiff may, without prejudice to his claim under Section 34 of the Code of Civil Procedure, 1908, within 7 days of the receipt of notice of payment into Court apply by Interim Application for payment of the said money to him in satisfaction of his claim and the Court may at the hearing of the summons make such order as to payment of the money and costs as it thinks fit.

27.3

Applicability to other proceedings.—The aforesaid Rules shall apply mutatis mutandis to Land Acquisition References and accident, compensation and insurance claims.

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159

CHAPTER 28 THIRD PARTY PROCEDURE

The rules in this Chapter (“Third Party Procedure”) are subtantially part of the Code of Civil Procedure, 1908 as amended vide Maharashtra Amendment published in the Maharashtra Government Gazette, Pt.IVK, p.788 dated 31.12.1987 as Rules 11 to 36 of Order VII. The same are included in these Rules for convenience and the Maharashtra Amendment shall be deemed to stand modified by these Rules, where necessary.

28.1

Third party notice.—Where in a suit a defendant claims against any person not already a party to the suit (hereinafter called the Third Party)— (a)

that he is entitled to contribution or indemnity, or

(b)

that he is entitled to any relief or remedy relating to or connected with the subject matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff, or

(c)

that any question or issue relating to or connected with the subject matter of the suit is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the third party or between any or either of them,

such Defendant may apply to the Court for leave to issue a Notice (hereinafter, “the Third Party Notice”) against such Third Party.

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160 The Defendant shall file an Affidavit in support of such Third Party Notice. 28.2

Form and service of notice.— (a)

The Third Party Notice shall: (i)

State the nature of the claim made by the plaintiff against the defendant and

(ii)

Also state (A) the nature and grounds of the claim made by the defendant against the Third Party or (B) the nature and the extent of any relief or remedy claimed by him against the Third Party or (C) the nature of the question or issue sought to be determined and

(b)

The Third Party Notice shall be sealed and served on the Third Party in the same manner as a writ of summons.

(c)

Time for service shall commence running from the date of the order granting leave to issue the Third Party Notice.

(d)

A copy of the plaint and a copy of the affidavit of the defendant in support of the Third Party Notice shall be served on the Third Party along with the Third Party Notice.

(e)

Such Notice shall be in Form No.17 or No.18 with such variations as the circumstances of the case may require.

(f)

A copy of the Third Party Notice and the affidavit of the defendant in support of the Third Party Notice shall be furnished to all parties to the suit within two weeks from the date of the order granting leave to

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161 issue the Third Party Notice. 28.3

Effect of service of notice.—The Third Party shall, as from the time of the service upon him of the Notice, be a party to the suit with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

28.4

Third party to enter appearance or vakalatnama.—If the third Party desires to dispute the plaintiff ’s claim in the suit as against the defendant on whose behalf the Notice has been issued or his own liability to the defendant, the Third Party shall enter an appearance in person or a vakalatnama in the suit within two weeks from the service of the Notice; Provided that a person so served and failing to appear by the returnable date may apply to the Court for leave to appear and such leave may be given on such terms as the Court may think fit.

28.5

Consequence of failure to enter appearance or vakalatnama.—If the Third Party does not enter an appearance in person or a Vakalatnama he shall be deemed to have admitted the claim stated in the Third Party Notice and shall be bound by any judgment or decision in the suit, whether by consent or otherwise, in so far as it is relevant to any claim, question or issue stated in the Notice.

28.6

Decree when third party makes default in appearance or vakalatnama.— Where the Third Party defaults in entering an appearance in person or through an Advocate in the suit— (a)

where the suit is decreed after trial in favour of the plaintiff, the Trial Court may, at or after the trial, pass such decree in favour of the defendant against the Third Party as the nature of the case may require; Provided that execution thereof shall not issue without the leave of the Court until the decree against the defendant has been satisfied, and

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162 (b)

in cases where the suit is decreed in the plaintiff ’s favour otherwise than by trial, the Court may, at any time after the decree against the defendant has been satisfied, on the application of the defendant by Interim Application pass such decree in favour of the defendant against the Third Party as the nature of the case may require.

28.7

Third party to file affidavit in reply.— If the Third Party enters an appearance in person or through an Advocate he shall within two weeks thereafter file an affidavit in reply to the Affidavit of the Defendant in support of the Third Party Notice, setting out his case in respect of the Third Party Notice and his case, if any, in respect of the Plaint.

28.8

Appearance of or vakalatnama on behalf of third party.— (a)

Where the Third Party enters an appearance in person or through an Advocate and files his affidavit as required by the last preceding rule, and the suit appears on board for directions before the Court, the Court may— (i)

order any claim, question or issue stated in the Third Party Notice to be tried in such manner, before, at or after the trial of the suit, as the Court may think fit and may, in that event, give the Third Party leave to defend the suit either alone or jointly with any defendant, upon such terms as he may think just, or to appear at the trial and take such part therein as he may think just and generally may make such orders and give such directions as to the Court may appear proper for having the questions and the right and liabilities of the parties most conveniently determined and enforced and as to the extent to which the Third Party shall be bound or made liable by any decree in the suit; or

(ii)

dismiss the Third Party notice.

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163 (b)

Any order made or direction given under this rule may be varied or rescinded by the Court at any time before the disposal of the suit.

28.9

Defendant to take out Interim Application for directions in certain cases.—Where for any reason it is not possible for the Court to give directions on the Third Party Notice at the time when the suit appears on the board for directions, the defendant issuing the Third Party Notice shall, within two weeks, after the filing of the affidavit in reply by the Third Party, apply for directions by Interim Application addressed to the Third Party and to all parties to the suit. Upon the hearing of such application, the Court may pass such orders and give such directions as are mentioned in the last preceding rule.

28.10

Costs.—The Court may decide all questions of costs as between a Third Party and the other parties to the suit, and may order any one or more to pay the costs of any other, or others, or give such direction as to costs as the justice of the case may require.

28.11

Setting aside third party proceedings.— Proceedings on a Third Party Notice may, at any stage of the proceedings, be set aside by the Court.

28.12

Right of the third party and of each successive third party to apply for third party notice against other persons.— (a)

Where the Third Party makes against any person not already a party to the suit (to be called “the Second Third Party”) such a claim as is mentioned in rule 1 of this Chapter he may by leave of the Court issue a Third Party Notice to that effect.

(b)

Where the Second Third Party in his turn makes such a claim as is mentioned in rule 1 of this Chapter against any person not already a party to the suit (to be called “the Third Third Party’”) or where each successive Third Party in his turn makes such a claim against any person not already a party to the suit, such

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164 Second “Third Party or any successive Third Party in his turn makes such a claim against any person not already a party to the suit, such Second or successive Third Party, as the case may be, may, by leave of the Court issue a Third Party Notice to that effect. (c)

28.13

28.14

The provisions contained in the preceding rules as to the Third Party procedure shall, with necessary modifications, apply to all cases where Third Party Notices have been issued, whether at the instance of the Third Party or any successive Third Party.

Right of defendant to issue third party notice against codefendant.— (a)

Where a defendant makes against a co-defendant such a claim as is mentioned in rule xx of this Chapter he may, without leave of the Court, issue and serve on such co-defendant within six weeks from the service of the Writ of Summons upon the defendant making the claim, a notice stating the nature and grounds of such claim and shall at the same time file an affidavit in support of such claim and furnish copies thereof to all parties in the suit.

(b)

The provisions contained in the preceding rules regarding Third Party procedure shall, with necessary modifications, apply to cases where a defendant has issued such notice against a co-defendant, but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the suit.

Third Party proceedings in a counter-claim.—Where in any suit a counter-claim is made by a defendant, the provisions contained in the preceding rules regarding Third Party procedure shall, with any necessary modifications, apply in relation to the counter-claim as if the subject-matter of the counter-claim were the subject matter of the suit, and as if the person making the counter-claim were the plaintiff and the person against who it is made a defendant.

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165

CHAPTER 29 DISCOVERY AND INSPECTION

29.1

Agent may make affidavit of documents when a party is not residing in Greater Mumbai.—Where the transactions which form the subject-matter of a suit have been carried on wholly or principally in Greater Mumbai and any party is not residing in Greater Mumbai at the time an affidavit of documents is required to be filed, such affidavit may be made on behalf of such absent party by his agent in Greater Mumbai.

29.2

Procedure where the affidavit is required to be made by absent party personally.—If in the case provided for by the last preceding Rule , any party desires to have such affidavit made by all or any of the absent parties personally, he shall be at liberty to apply on an Interim Application for an order to that effect to the Court setting forth the grounds for making such order and the Court after hearing the opposite party may make such order; but the party obtaining it shall, before serving the same, deposit a sum of Rs.1,000 in Court for the cost of the opposite party of such order and affidavit, which costs shall be dealt with by the Court which tries the case.

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166

CHAPTER 30 MATTERS ARISING PENDING SUIT

30.1

Ex-parte applications for formal amendment of filings and other documents.—Applications for amendment of filings and other documents for the purpose of rectifying clerical errors or typographical errors in names, dates or sums may be made to the Registrar-General.

30.2

Amendments how to be made.— (a)

If the amendment be by omitting some original matter, the said matter shall be struck through with a single line ensuring that the deleted portion is legible.

(b)

In cases of an addition by amendment, the matter to be added shall be typed and pasted into the original filing.

(c)

All amendments other than those in (a) above shall

(d)

(i)

Be in bold face and enclosed in curly brackets ({})

(ii)

In the margin thereof contain an endorsement indicating the date when the amendment was carried out and also the date of the order permitting the amendment.

Subsequent amendments shall also indicate the number of the amendment (“second amendment”; “third amendment” etc)

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167 ILLUSTRATION: AMENDMENT HOW TO BE MADE Amendment made on 5.1.2011, vide order dt. 15.12.2010 in IA 345/2010

{By a letter dated 7 July 2007, the 1st Defendant requested the Plaintiff to forward copies of the relevant documents}

2nd Amendment; made on 8.1.2011, vide order 18.12.2010 in IA 349/2010

{Set out amended text}

30.3

Amendment for Addition of Parties.—Where any amendment is sought for addition of parties to any proceeding, unless the Court otherwise directs, service of the proceeding shall only be required as provided in these Rules after the proceeding has been amended to join the parties thereto.

30.4

Attestation of amendment.—Any amendment made pursuant to an order shall be attested by the Officer designated by Registrar-General or Master and Assistant Registrar(O.S.)/Prothonotary or any one of the Assistant Masters or Associates.

30.5

Directions to be given.—On the returnable date of the Writ of Summons or such later date as may be assigned, the Judge shall, for the speedy determination of the suit and the avoidance of multiplicity of interlocutory proceedings, give such directions with respect to pleadings, interrogatories, particulars, admission of facts and documents, examination of witnesses, discovery, inspection and production of documents, fixing a date for setting issues and for trial of any issues are preliminary issues, fixing a date for hearing of the suit and such other matters, as he may think fit.

30.6

No affidavit to be made.—No affidavit shall be made or used by any party when the suit is on board for directions, except by leave of the Court.

30.7

Plaintiff's admission of such defence and procedure thereon.—Whenever any defendant in his Written Statement alleges any grounds of defence which have arisen after the commencement of the suit, the plaintiff may file an

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168 admission of such defence in Form No.XX and, if such defence is an answer to the whole suit may thereupon apply to the Court for leave to withdraw the suit.

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169

CHAPTER 31 COMMISSIONER FOR RECORDING EVIDENCE

31.1

Marking of Documents.—Before the evidence Affidavit is filed, commonly admitted documents should be tendered in a compilation to Court and the Court may mark them in evidence.

31.2

Procedure for and upon filing of Affidavit in lieu of Examination-in-Chief.— (a)

Each party shall file the respective Affidavits in lieu of Examination in Chief of each of his witnesses consecutively, i.e., the affidavit of every subsequent witness following the first witness shall be filed after the cross-examination of the first witness is completed. The Court may fix such schedule for this purpose as it thinks fit.

(b)

Upon the filing of each Affidavit in lieu of examination-in-chief, the Affidavit will be placed before the Court for directions and all objections as to admissibility of any portion of the Affidavit and as to the admissibility of all documents sought to be proved by such Affidavit shall be decided by the Court.

(c)

In the event that the Court marks any document subject to proof of contents, then the fact that questions in cross-examination have been put in respect of such documents while evidence is being recorded by the Commissioner for Taking Accounts shall not result in such documents being proved PROVIDED THAT such questions in crossexamination are put subject to a specific objection

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170 taken and recorded in respect of each such document. 31.3

31.4

Appointment of Commissioner for Recording Evidence.— On receipt of the Affidavit in lieu of Examinationin-Chief, of the witnesses on affidavit with documents under Order 18, Rule 4 (Amendment Act, 2002 of the Code of Civil Procedure), the Court may appoint a Commissioner for recording cross-examination or re-examination of the witnesses, as the case may be. (a)

Any Advocate or retired judge of the subordinate judiciary may be appointed Commissioner for recording evidence by consent of parties, even if such Advocate or retired judge is not on the panel of Commissioners formed by the High Court under these Rules;

(b)

On failure of parties to agree upon the name of a person to serve as Commissioner, the Court may appoint any person from the Panel to serve as such Commissioner, and the allotment of work shall be by rotation so as to ensure as far as possible an even distribution of work among the members of the panel.

The Panel of the Commissioner shall be formed of Retired Judges of the Subordinate Judiciary and from the Members of the Bar, practising in the High Court at Bombay having minimum five years’ practice as an Advocate, having ability to record the evidence and willing to be appointed on the panel. (i)

The panel of the Commissioners shall be prepared in April every two years or as directed by the Hon’ble the Chief Justice by the Officer designated by Registrar-General.

(ii)

On the death of a Commissioner or for other sufficient cause on the application of any party or on its own motion, the Court may at any time remove a Commissioner appointed under these Rules and appoint another in his

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171 place as provided herein. (iii)

31.5

Where the Commissioner appointed under Rule xx dies, is removed, retires, ceases to work for any reason or is incapable of acting as such, leaving commission work incomplete, the Court may appoint another person from the Panel of Advocates or a person nominated by consent of parties, to carry out incomplete commission work.

Remuneration of Commissioner.— (a)

The Commissioner appointed under these rules shall be entitled to remuneration at the rate of not less than Rs.1000 per hour, subject to maximum of Rs.5000 a day or such other higher rate as the Hon'ble Court may direct.

(b)

If the remuneration of the Commissioner is fixed on a per hour basis, after evaluating probable hours to be consumed for recording evidence and the approximate remuneration of the Commissioner, the parties to the proceeding shall deposit in equal shares (or, if there be more than one opposing party, in such shares as the Court may decide) the said amount with the Commissioner within a week of his or her accepting the Commission. The parties shall thereafter deposit such additional amounts as may be required to be paid to the Commissioner from time to time.

(c)

All payments to the Commissioner incurred as costs by the partis shall be subject to final orders in the proceeding.

31.6

The Commissioner appointed under these Rules shall have power to administer Oath.

31.7

The Commissioner shall fix the date, time and place of the Commission work in consultation with parties to the proceedings or as per the order of the Court.

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172 31.8

Procedure when evidence is to be taken on interrogatories.—If an order is made on the application of a party for the issue of a commission under section 76 of Order XXVI, rule 4 of the Code of Civil Procedure and the opposite party joins in the said commission and the evidence is to be taken on interrogatories, each party shall file his interrogatories-in-chief with the Officer designated by Registrar-General and deliver a copy thereof to the opposite party within a fortnight from the granting of such order. In all such cases, cross-interrogatories shall be filed within ten days from the service of the copy of the interrogatories-in-chief and re-interrogatories within six days from the service of the cross-interrogatories; in default of such filing, the commission may be issued, but in any of the above cases of cross or re-interrogatories, application may be made to the Court to enlarge the time.

31.9

Preparation etc. of commission.-The commission shall be prepared by the Officer designated by the Registrar-General, who shall seal the same and annex thereto the interrogatories, cross-interrogatories and re-interrogatories, if any, and shall forward it in a sealed envelope to the Commissioner therein named, with a direction that the same be returned to him when executed.(Form No.24).

31.10

Deposit of fees of the Commissioner.—Whenever a commission is to be sent outside Greater Mumbai, the Advocate on record at whose instance the commission is issued shall deposit with the Commissioner a sum of not less than Rupees Five Thousand as an advance towards the payment of the fees of the Commissioner in question, and undertake at the same time to pay a further sum in case the fees of the Commissioner in question, and undertake at the same time to pay a further sum in case the fees of the Commissioner exceed the amount deposited.

31.11

Procedure in examination of witness.—The Commissioner taking an examination under the preceeding rules shall have regard to the provisions of the Indian Evidence Act and shall, in case the Advocate examining the witness presses any

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173 question to which the other side objects, record such question, objection and the answer thereto, but the same shall not be admitted as evidence unless the Judge before whom the deposition is put in evidence shall so direct. 31.12

31.13

Manner of Recording Evidence.— (a)

The Commissioner shall administer oath in the manner set out in Form XXX annexed to these Rules.

(b)

The Commissioner shall record all evidence in Question and Answer form unless otherwise ordered by the Court.

(c)

The questions shall bear running serial numbers for each witness from the start of the cross-examination to the close of that witness’s examination.

(d)

The evidence recorded shall have continuous page numbers throughout the examination of each witness.

Preparation of Report.—At the conclusion of the evidence, the Commissioner shall prepare a report in the following format which shall be submitted and filed by him in the High Court Registry. The report shall contain (a)

A cover page indicating the short title of the matter and the name of the Commissioner, the beginning and end dates of the Commission and the place or places where the Commission did its work.

(b)

A memo page giving the short title of the matter, the order of appointment of the Commissioner, the dates of all the hearings and a list of the witnesses examined along with their respective witness identification numbers.

(c)

A compilation of the evidence recorded as follows: (i)

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Part I shall contain: The Affidavit in lieu of Examination-in-chief of each witness, starting with the first witness, followed by the evidence recorded of his cross-examination

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174 and re-examination (if any), and the entire volume will have continuous paging throughout. There shall be an index to the volume giving the page numbers of each Evidence Affidavit and the pages number of the Cross-examination and Re-Examination (if any) of each witness; (ii)

(d)

Part II shall have a list of the documents introduced in evidence or marked for identification arranged by date on which they were so introduced or marked. The Volume shall be paginated and shall have a tabular index listing the Sr No, the date of the document, its description, page number, exhibit or identification number and the corresponding page number of the evidence volume I.

The entire report shall have a general index with running page numbers.

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175

CHAPTER 32 PROCEDURE AT HEARING OF SUITS

32.1

Translation of entry to be marked instead of a copy thereof.—When an entry in any book which is not in the English language is put in evidence under Order XIII, Rule 4 of the Code of Civil Procedure, the translation of such entry shall be marked and recorded in lieu of a copy thereof.

32.2

Proceedings in another suit how put in as evidence- When any proceedings in a suit filed in the Court are necessary to be put in as evidence in another suit in the Court, they shall not be removed from the file of the former suit unless true copies thereof are substituted in the file of the former suit, unless the Judge shall otherwise direct.

32.3

Exhibits to be officially translated.—Subject to Rule NN of Chapter YY, no document, not in the English language, shall be read or received in evidence without an official translation thereof, except by leave of the Court.

32.4

No decree unless suit on board.—No suit shall be disposed off unless it is listed on that day.

32.5

Sale and sub-division of securities implied in order for payment of fund.— Every decree of order for the payment of money out of a fund which is subject to the order of the Court shall, for the purpose of such payment, be deemed to authorise the sale and sub-division of the securities belonging to the fund or of a sufficient portion thereof.

32.6

Liberty to apply implied in decree or order that is not final.—In every decree and order that is not final, liberty to apply shall be implied.

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176

CHAPTER 33 COMMISSIONER FOR TAKING ACCOUNTS

33.1

Removal of suits in matters from the list of References to the Commissioner and placing them on board for directions.— (a)

Where a matter is referred to the Commissioner for the purpose of taking an account, within one week from the date of the order or decree, any party may, failing which the party at whose instance the Commissioner For Taking Accounts has been appointed shall, file an authenticated copy of the decree or order of reference in the office of the Commissioner within ten days from the date of the decree or order and shall inform the Officer designated by Registrar-General of his having done so.

(b)

If such intimation is not given to the Officer designated by Registrar-General within the said period of one week , the Officer designated by Registrar-General shall, unless otherwise ordered, remove the matter from the list maintained by his office of matters referred to the Commissioner.

(c)

Suits and matters which the Commissioner has certified for non-prosecution or for refusal or neglect of a party to do or perform any act which he was directed to do or perform and suits and matters which have been settled or otherwise concluded and suits and matters in which reports have been made disposing of the case shall also be removed from the

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177 said list maintained by the office of the Officer designated by Registrar-General. (d)

Suits and matters which are removed from such list under sub-rule (c) or which are removed on the ground that the Commissioner has certified them for non-prosecution or for refusal or neglect of a party to do or perform the required act shall be set down for directions before the Court. The Officer designated by Registrar-General shall notify the date on which the suit is to be set down. If a party has appeared in person, the Officer designated by Registrar-General shall give notice of the date to such party in accordance with the provisions in these Rules regarding service on parties in person. The Court may give such directions as he may deem fit.

33.2

Copy of decree or order to be filed.—Where a party to a matter desires to take proceedings under any decree or order in the office of the Commissioner for Taking Accounts (hereinafter referred to as “the Commissioner”), he shall file in the office of the Commissioner an authenticated certified copy of the decree or order.

33.3

Manner of proceeding with the matter.—At the time appointed for considering the matter of the said decree or order, the Commissioner shall proceed to regulate, as far as may be, the manner in which the matter is to be proceeded with and shall give such directions as may be necessary.

33.4

Procedure in default of filing statement of account.— (a)

Where a party who has been directed to file a statement of account has made default in filing such account, the Commissioner may debar him from taking any further part in the proceedings before him and may proceed with the hearing of the reference or he may direct any other party to file a statement of account or he may remove the reference from his file or; make such other order as he thinks fit.

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178 (b)

33.5

Where the Commissioner has directed any other party to file a statement of account, he may debar the party in default from being heard on the statement of account filed by such other party.

Procedure on refusal or neglect of a party to do some act required to be done.— (a)

Where a party to a proceeding has refused or neglected to do any act which he has been directed by the Commissioner to do, the Commissioner may refuse to hear him and may debar him from taking any further part in the proceedings before him. Where it is not expedient or practicable for the Commissioner to proceed with the reference or matter by reason of such refusal or neglect, the Commissioner may remove the reference or matter from his file and certify the fact to the Officer designated by Registrar-General, giving reasons for the removal.

(b)

Notwithstanding that no such report has been made/no such order has been passed, any party concerned may apply by Interim Application for an order that the party in default do the required act within a specified time. The Court may thereupon make such order as it deems just.

(c)

If the Court directs the party in default to do the required act within a specified time and if the said party fails to do the act within such time, any party concerned may apply by Interim Application that action be taken against the party in default for disobedience of the Court’s Order. On the hearing of such Application , the Court may order that the property of the person guilty of such disobedience be attached and may also order such person to be detained in civil prison for a term not exceeding six months (unless in the meantime the Court directs his release),or may make such order relating to the suit or proceeding as the Court may think fit.

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179 (d)

No attachment under this rule shall remain in force for more than one year at the end of which time, if the disobedience continues, the property attached may be sold and out of the sale proceeds the Court may order such compensation to be paid to any party affected as it thinks fit and as to the balance, if any, the Court shall pass an order that it be paid to the party entitled thereto.

33.6

Commissioner may remove matter from the file on default of appearance.—If the party who gets a notice or other process issued does not appear on the day fixed for the hearing of the reference or matter or on any other day to which the hearing may be adjourned, the Commissioner may adjourn the hearing or remove the reference or matter from his file or pass such other order as he may in the circumstances deem fit. When the Commissioner makes an order for removal, he shall certify to the Registrar-General that the reference or matter has not been prosecuted and that it has been removed from his file.

33.7

Commissioner may proceed ex parte.—If any party concerned in any reference or matter who shall have been duly served with notice does not appear on the day fixed for the hearing of the notice or on any other day to which the hearing may be adjourned, the Commissioner shall be at liberty to proceed ex-parte as regards such party.

33.8

Commissioner may award costs of adjournment or costs of removal of matter.—When the Commissioner grants an adjournment or makes an order for removal of a reference or matter from the file, he may make such order as to costs as he may deem just. The costs shall be quantified by the Commissioner. The order for costs shall be executed as if it were an order of the Court. The party desiring to enforce the order for costs shall file a certified copy thereof in the Office of the Registrar-General and apply for execution. Execution shall then issue as in the case of an order of the Court.

33.9

When reference or matter not prosecuted, Commissioner may remove same from file.—In any case in which no

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180 effective proceedings have been taken in the office of the Commissioner for a period of three months in any reference or matter pending before him, the Commissioner may, after giving notice to the parties who have appeared before him, remove the reference or matter from his file and certify to the Officer designated by Registrar-General that. the reference or matter has not been prosecuted and that it has been removed from his file. Notice to a party who has appeared in person shall be given by sending the notice to him by post under certificate of posting. 33.10

Reference or matter not to be restored without order.— When a reference or matter is removed from the file of the Commissioner it shall not be restored to his file without an order of the Court.

33.11

Commissioner may obtain process for attendance or for production of documents.—The Commissioner shall be at liberty in all matters referred to him to obtain the process of the Court to compel the attendance of witnesses or the production of any document which he may desire to inspect, and to examine such witnesses on oath or solemn affirmation touching the matters referred to him as he may think proper.

33.12

Unofficial translation of exhibit may be furnished to Commissioner.—An Advocate on record shall be at liberty to furnish to the Commissioner an unofficial translation of any exhibit put in before him. Should the correctness of such unofficial translation be challenged, the Commissioner may, on reference to the interpreter in attendance, decide the point and amend the translation if necessary, or may require the document or any portion of it to be officially translated.

33.13

Registered Clerks of Advocates on written authority may be permitted to appear before Commissioner.—Registered Clerks of Advocates may, on the written authority of their employers, appear and act for their employers in any matter before the Commissioner for which such authority is given, but the Commissioner may require the attendance of the Advocate on record whenever he thinks fit. The Commissioner shall have power, subject to an appeal to the

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181 Court, to exclude from the aforesaid privilege any clerk whom he may consider incompetent or to have abused such privilege.

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182 33.14

Appearance on a claim made against the estate of a deceased person.—In any matter for the administration of the estate of a deceased person where a claim is made against the estate of the deceased by a person not a party to the matter, no party other than the executor or administrator shall, unless by leave of the Commissioner be entitled to appear, except at his own risk as to his costs and the costs occasioned by his appearance to other parties entitled to appear and appearing, unless the Commissioner otherwise directs.

33.15

Commissioner may make interim report.—The Commissioner may, suo motu or upon the application of a party, make an interim report concerning any matter or thing arising in or about the matter referred to him in order that the directions of the Court may be obtained thereon. Such interim reports shall be brought before the Court by such party as the Commissioner shall direct. The party so directed shall apply by Interim Applications for the necessary directions and shall serve the summons on all parties concerned. The Court may give such directions or pass such orders on the report as to him may seem just.

33.16

Commissioner to report if unable to make report in time.—If the Commissioner is unable to make his final report within the period fixed by the decree or order or, where no time is fixed, within one year from the filing of the authenticated copy of the decree or order in the Commissioner’s Office, he shall make a report setting out the reasons why the matter could not be completed within such period. The Officer designated by Registrar-General shall place such report before the Court for such orders as the Court may deem fit. The Officer designated by RegistrarGeneral shall notify on notice board the date on which the report is to be placed before the Court and be shall do so at least eight days before such date. If a party has appeared in person, the Officer designated by Registrar-General shall give notice of the date to such party by sending a letter to him by post under certificate of posting.

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183 33.17

Report of Commissioner binding on parties unless discharged or varied.—When the Commissioner has made his final report pursuant to any decree or order or the Court, he shall inform the parties who have appeared before him of the same and shall then forward it to the Officer designated by Registrar-General for being filed. The report shall be binding on all parties to the proceedings, unless the same is discharged or varied as hereinafter provided.

33.18

Exceptions to Commissioner’s report and their hearing.—

33.19

(a)

Any party desiring such report to be discharged or varied shall within one month from the filing thereof in the office of the Officer designated by RegistrarGeneral file his exceptions thereto and serve a copy of the same on the other parties to the matter. After the exceptions have been filed as aforesaid, the matter shall be set down for hearing on such exceptions. If any party after having filed exceptions abandons or does not proceed with them, any other party in the same interest shall be at liberty to proceed with such exceptions.

(b)

The Court may for sufficient cause allow exceptions to be filed within such time after the expiry of twenty days as he may think fit.

Setting down of suit for hearing on exceptions to Commissioner’s report.— (a)

Unless otherwise ordered, the matter shall be set down on board for hearing on exceptions to the Commissioner’s report and for further directions on the date assigned by the Registry but no later than two weeks after the time prescribed for filing of exceptions has expired. The Officer designated by Registrar-General shall notify the date on which the suit is to be so set down. If a party has appeared in person, the Officer designated by Registrar-General shall give notice of the date to such party.

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184 (b)

The matter shall be set down for hearing on the exceptions before the Court which made the order of reference if available, and if not, before any other Court.

33.20

Confirmation of Commissioner’s report, when exceptions not filed.—When no exceptions have been filed to vary or discharge a report within the prescribed time the Officer designated by Registrar-General shall, at the request of any party to the proceedings, certify such fact on the report; and such certificate shall appear on such report before the matter is placed on board for confirmation of the Commissioner’s Report and for further directions.

33.21

Procedure when no application made for confirmation.— (a)

33.22

If, in a matter referred to the Commissioner, no application is made for confirmation of the Cominissioner’s report within one month from the date on which the same is filed in the office of the Officer designated by Registrar-General, the matter shall be set down on board for directions and the provisions of sub-Rule 33.19 shall apply mutatis mutandis to such matters.

Procedure when Receiver fails to file account, etc.— (a)

Where a receiver neglects to file his account as provided in these Rules or to get it passed, the Commissioner may require the receiver and the parties or any of them to attend the office of the Commissioner to show cause why cause why such account has not been filed or if filed, why the passing thereof has not been proceeded with and thereupon the Commissioner may give such directions as to him may seem proper.

(b)

If the Commissioner does not see fit to require the Receiver or the parties to attend as aforesaid, or if he shall not be satisfied with the explanation offered to him, the Commissioner shall make a report in the

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185 matter and after informing the receiver and the parties transmit it to the Officer designated by Registrar-General. The Officer designated by Registrar-General shall place such report before the Court. The Officer designated by Registrar-General shall notify the date on which the report is to be placed before the Court. If a party has appeared in person, the Officer designated by Registrar-General shall give notice of the date to such party. The Court may pass such order on the report as may seem just. 33.23

Upon account being filed notice to proceed etc. to issue.— Upon a receiver’s account being filed in the office of the Commissioner for being passed, a notice to proceed thereon and other necessary notices shall be got issued by the Receiver.

33.24

Commissioner’s certificate to be binding on parties unless discharged or varied.—When the Commissioner has completed the examination of an account filed by a Receiver, he shall issue a certificate stating the result of such examination. He shall inform the parties who have appeared before him of the issue of the certificate and shall then forward it to the Officer designated by Registrar-General for being filed. The certificate shall be binding on all parties to the proceedings unless the same is discharged or varied as hereinafter provided.

33.25

Party dissatisfied with certificate to apply by Interim Application.— (a)

Any party desiring such certificate to be discharged or varied shall within one month from the filing thereof in the office of the Officer designated by RegistrarGeneral apply by Interim Application for such order.

(b)

The Court may for sufficient cause allow such application to be made within such time after the expiry of one month as the Court may think fit.

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186 33.26

Sale of Properties (a)

Copy of decree or order for sale to be filed.—An authenticated copy of every decree or order for the sale of property by the Commissioner shall be filed in the office of the Commissioner.

(b)

Sale to be conducted by the Commissioner.— Unless otherwise ordered, every such sale shall be conducted by the Commissioner or under his direction by his representative, and shall be made by public auction; except that if the property to be sold shall consist of negotiable securities, or of shares in any public company or corporation, the Commissioner shall be at liberty to sell the same through a broker at the market rate of the day.

(c)

Sale to be to the highest bidder offering a sufficient sum.—Every such sale shall be to the highest bidder, provided that if the Commissioner is of opinion that a sufficient sum has not been offered, he may postpone the sale.

33.27

Applicability of provisions of Order XXI Rule 64 to 96 of the Code of Civil Procedure and relevant provisions of Chapter XXI of the Civil Manual regarding sale of property by Commissioner for Taking of Accounts.—The provisions of Order XXI Rule 64 to 96 of the Code of Civil Procedure and relevant provisions of Chapter XXI of the Civil Manual shall apply mutatis mudandi to the sale of movable and immovable properties ordered by the Commissioner for Taking Accounts.

33.28

Rules to apply to Special Commissioner.—The rules in this chapter relating to the Commissioner shall, with any necessary modifications, apply to a Special Commissioner, so far as they may be applicable.

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187

CHAPTER 34 ARREST AND ATTACHMENT BEFORE JUDGEMENT

34.1

Arrest and attachment before judgment.—Applications for arrest or attachment before judgment under Order XXXVIII of the Code of Civil Procedure shall be made by Interim Application supported by affidavit, stating distinctly the ground on which the warrant is sought and the reason for believing such ground to exist. A party applying under this rule shall give an undertaking in writing, or through his Advocate to pay such sum by way of damages as the Court may award as compensation in the event of a party affected sustaining prejudice by such order.

34.2

Conditional attachment duration of.—When a conditional attachment before judgment is granted under Order, XXXVIII, rule 5 of the Code of Civil Procedure, it shall only continue until the day named in the warrant or until the further order of the Court (Form No.43).

34.3

Rules NN & NN of Chapter XX to apply.—Rules NN and NN of Chapter XX shall respectively apply, with any necessary modification to warrants of arrest and attachment before judgment.

34.4

Procedure on the surety rendering the principal or principal surrendering himself.—If the surety be desirous of rendering the principal or if the principal be desirous of surrendering himself, such surety or principal shall give notice to the Sheriff to attend before the Judge at the time of the render or surrender, in order that the Sheriff or his Deputy may take immediate charge of the principal.

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188 34.5

When principal may be rendered.—Sureties shall be at liberty to render the, principal at any time during the last day for rendering, provided such render is made before the prison doors are closed for the night.

34.6

Stay of proceedings.—A party shall not be at liberty to proceed on the bond pending a rule to bring in the body of the principal.

34.7

Undertaking to pay damages to be given by party applying for interim reliefs.—A party to whom interim relief has been granted shall, before the order is issued, unless the Court otherwise directs, give an undertaking in writing or through his Advocate to pay such sum by way of damages as the Court may award as compensation in the event of a party affected sustaining prejudice by such order.

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189

CHAPTER 35 EXECUTION OF DECREES AND ORDERS

35.1

Certified copy of decree or order or roznama to accompany application for execution.—In all cases the application for execution shall be accompanied by a duly certified copy of the decree or order, or by the original, or by the roznama of decree or order until the decree or order is drawn up.

35.2

Judge may allow execution before sealing of decree or order.—The Court may, however, for good cause, allow execution to issue before the sealing of the decree or order.

35.3

Returnable date of notices.—All notices under sections 73 and 145 and Order XXI, Rules 2, 16, 22, 34 and 37 of the Code of Civil Procedure shall be issued by the Registrar-General and be made returnable before the Court on a day to be therein mentioned, and shall be served if the party upon whom the service is to be made is residing or carrying on business— (a)

within Greater Mumbai, four clear days.

(b)

at any other place within the State of Maharashtra, eight clear days.

(c)

at a place outside the State of Maharashtra, fourteen clear days.

(d)

at a place outside India, two months.

(e)

before such date, unless the Court shall otherwise order.

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190 35.4

Transmission of decree or order when provisions of Order 21, Rule 22 apply.—When a copy of a decree or order of this Court is to be transmitted to another Court for execution and the provisions of Order 21,Rule 22 of the Code of Civil Procedure apply, the notice under Order 21, Rule 22 shall be issued by this Court and order obtained thereon, provided that where the judgment debtor resides or carries on business in the place to which the decree or order is to be transmitted and the provisions of Order 21, Rule 22 apply, then the copy of the decree or order may be transmitted to such Court without the notice under Order 21, Rule 22 being issued by this Court.

35.5

Certificate of non satisfaction when provisions of Order 21, Rule 22 apply.—When a copy of a decree or order of this Court is transmitted to another Court for execution and the provisions of Order XXI, Rule 22 of the Code of Civil Procedure apply and having been complied with, it shall be stated in the certificate of non satisfaction that these provisions have been complied with.

35.6

Transmission of decree to two or more districts simultaneously.—When a person against whom execution is sought has property in two or more districts, the Officer designated by Registrar-General may, on being satisfied of the necessity, cause a copy of the decree or order obtained against such person to be transmitted for execution to some or all of such districts contemporaneously. In the certificate of non-satisfaction to be sent therewith to the Court of each of such district it shall be stated to what other Courts a copy of the decree or order has been sent for execution. At the same time a letter shall be sent to the Judge of one of such Courts requesting him to attach and sell the property in his district (hereinafter mentioned as district “A”), or a sufficient portion thereof, and certify the result to this Court, and with such letter shall be sent a copy of the letter sent to the Judge of each of the other Courts. A letter shall also be sent to the Judge of each of the other Courts, requesting him to attach the property in his district, but not to sell the same until furnished by this Court with information as to the result of the sale of the property in district “A”.

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191 35.7

Procedure when in sufficient amount realised in first district.—If the amount realised in district “A” shall not be sufficient to satisfy the decree or order, a certificate stating the result of the sale shall be sent to the Judge of another of such Courts with a letter requesting him to sell the property under attachment in his district (hereinafter mentioned as district ‘B”), or a sufficient portion thereof, and certify the result to this Court.

35.8

Procedure when Insufficient amount realised in second or succeeding districts.—If the amount realised in execution in district “B” shall not be sufficient to satisfy the balance payable under the decree or order, the procedure indicated in the last preceding rule shall be followed and so on as to each of the other districts successively.

35.9

Procedure when sufficient amount realised in execution.—If the amount realised in execution in district “A” or district “B” or any other district except the last, shall be sufficient to satisfy the decree or order, a certificate that such is the case shall be sent to the Court of each district in which property shall at the time be under attachment in execution of the decree or order.

35.10

Return of decree or order if provisions of Order 21, Rule 22 or Order 21, Rule 6 are not compiled with.—When a copy of a decree or order of another Court is transmitted to this Court for execution after the lapse of two years from the date thereof or of the last order made against the party against whom execution as applied on any application for execution, or after the death of the judgment debtor, and there is nothing to show that notice has been given under order XXI, rule 22 of the Code of Civil Procedure, the Officer designated by Registrar-General may return the copy of the decree or order to the Court from which it was received, with a request that it may be certified whether notice has been given under that rule. The Officer designated by Registrar-General shall also return the copy of the decree or order, if the requirements of order XXI, rule 6 of the Code shall not have been fully complied with.

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192 35.11

Return of decree or order for non prosecution.—When a copy of a decree or order of another Court is transmitted to this Court for execution and the judgment creditor does not take any steps in this Court for a period of 12 months after receipt of intimation from the Court of its receipt of such transmitted decree or order, the Registrar-General shall return the copy of the decree or order to the Court from which it was received.

35.12

Non prosecution of application for execution.—When a party does not proceed with the application for execution for a period of twelve months from the date of the filing of application, the Officer designated by Registrar-General shall place the application before the Court for dismissal for want of prosecution. The Judge may pass such orders thereon as he may think fit.

35.13

Reference to Judge on refusal by Officer designated by Registrar-General.—When the Officer designated by Registrar-General shall refuse an application in execution, the matter shall, at the request of the applicant, be referred to the Court, and in all such cases, the Officer designated by Registrar-General shall certify the grounds of his refusal, and they shall be brought to the notice of the Judge.

35.14

Application for receiver in execution of decree or order.— An application for the execution of decree or order by the appointment a receiver under order XL, Rule I of the Code of Civil Procedure to realise or other wise deal with property under attachment shall be made to the Judge and such receiver shall, unless otherwise ordered, be subject to the rules of the Court applicable to persons appointed receivers of property which is the subject matter of a suit.

35.15

Costs of execution to be specified on warrant of arrest.— Every w arrant for the arrest of any person in execution of a decree or order shall, in addition to the amount due and payable under the decree or order for principal, interest and costs, specify a sum for the costs of execution, unless so directed by the Judge or the Officer designated by RegistrarGeneral (Form No.52).

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193 35.16

Costs of execution to be specified on warrant of attachment.—Every warrant for attachment of property shall specify a sum for costs of execution unless so directed by the Judge or the Officer designated by Registrar-General.

35.17

When fresh application necessary.—When a warrant for sale is not got issued within 12 months from the date of the warrant of attachment, or when a warrant in execution of decree or order has not been fully executed within a year from the date thereof, a fresh application shall be made for such further execution as may be necessary, but at the cost of the party seeking execution unless the Officer designated by Registrar-General otherwise directs: (A) Provided that if no such fresh application is made, the Officer designated by Registrar-General may after giving notice to the judgment creditor and after hearing his objections, if any, on the application of any party interested in the property subject to attachment make an order that the attachment has ceased and no such order being made, the attachment shall be deemed to have been raised.

35.18

Procedure on realization by Sheriff.—When the Sheriff has certified to the Court that he has realised assets by sale or otherwise from the property of the judgment debtor, the Officer designated by Registrar-General shall file the certificate, and shall, at the request of the judgment creditor at whose instance the realization was made, certify what persons have within twelve months prior to the realization applied to the Court for execution of decrees for money against the same judgment-debtor or have been declared entitled to share in such assets together with the amount appearing to be payable under such decrees.

35.19

Notice to all persons claiming to share to attend Court.— The Officer designated by Registrar-General shall also issue a notice calling upon all persons who claim to share in such

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194 assets to attend the Court on the day therein named in support of their claims. Such notice shall be served upon the persons named in the certificate and a copy thereof shall be posted up in a conspicuous place in the Court House and on the Court website. 35.20

Procedure on such notice.—Upon the day so named the Court, upon proof of the due service of the said notice, will proceed to deal with such claims and make such orders as he deems fit.

35.21

On realization of monthly pay frequent certificates not to Issue.—When any portion of the pay or salary of a judgment debtor is paid monthly to the Sheriff in execution of decree, it shall not be necessary for the Registrar-General to issue a certificate and notice on each realization, but only annually for each Financial Year so aso to reach the addressee of such notice by 30th April of the succeeding Financial Year.

35.22

Procedure when judgment creditor neglects to apply for certificate.—Should the judgment creditor, at whose instance the realization was made, neglect or refuse to apply for the certificate or to serve the notice here in before mentioned any other person entitled to share in the assets shall be at liberty to apply for such certificate and serve such notice.

35.23

When such judgment creditor alone entitled to payment.—If the Officer designated by Registrar-General shall certify that no person has, within twelve months prior to the realization, applied to the Court for execution of a decree for money against the judgment debtor, the judgment creditor may at once apply to the Officer designated by Registrar-General for an order directing the Sheriff to pay to him the amount realized or so much thereof as may be sufficient to satisfy his decree.

35.24

Acts under Order XXI Rule 34 (5) and 80 of the Code of Civil Procedure to be done by the Officer designated by Registrar-General.—The acts directed to be done by the Court under Order XXI, rule 34 (5) and 80 of the Code of Civil Procedure shall, unless otherwise ordered by the Court,

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195 be done by the Officer designated by Registrar-General. The endorsement or execution by the Officer designated by Registrar-General shall be in the following form:“A B by the hand of C.D. Officer designated by Registrar-General, High Court, Bombay, pursuant to the order of the Honourable Mr. Justice…….

dated the ……. Day…….of ……..20……. made in Suit No …….of 20__”, 35.25

Procedure in case of doubt or difficulty.—In cases of doubt or difficulty under this chapter, the Officer designated by Registrar-General may refer the matter to Court.

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196

CHAPTER 36 GARNISHEE PROCEEDINGS

NB:

This chapter is included only for convenience. The following form part of the Bombay High Court amendment to Rules 46A to 46I of Or.21 of the Code of Civil Procedure, 1908.

36.1

Garnishee Notice.—Upon the application of the decree holder, the Registrar-General may, in the case of: (a)

any debt (other than a debt secured by a mortgage or a charge or a negotiable instrument), which the Civil Courts are not precluded from adjudicating upon by any law for the time being in force and which has been attached under Order XXI rule 46 of the Code of Civil Procedure; or

(b)

any movable property not in the possession of the judgment debtor which has been attached under Order XXI, rule 46 of the Code of Civil Procedure: or

(c)

any negotiable instrument which has been attached under Order XXI, rule 51 of the Code of Civil Procedure; or

(d)

any movable property of the nature referred to in Clauses (1) to (3) above in the custody of any public officer other than an officer of any Court, which has been attached under Order XXI, rule 52 of the Code of Civil Procedure;

(e)

issue a notice to any person liable to pay to the judgment debtor such debt or the amount due under such negotiable instrument or liable to deliver such movable property or to account for it to the judgment-

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197 debtor (hereafter referred to as “the Garnishee”) calling upon him within the period specified in the notice either to pay into Court the said debt or amount payable under the said negotiable instrument or deliver into Court the said movable property, as the case may be, or so much thereof as may be sufficient to satisfy the decree or order and the cost of execution or to appear before the judge and show cause why he should not be ordered to do so. The notice shall be served on the Garnishee, and if the Judge so directs, on the judgment-debtor also. The notice shall be in Form No. FF and shall be served eight clear days before the returnable date thereof: Provided that, if by any law for the time being in force, the jurisdiction to adjudicate upon the debt or claim relating to the negotiable instrument or movable property in respect of which the application aforesaid is made is conferred on a Civil Court other than the High Court, the Judge shall send the execution case to such competent Court and on such transfer the Court to which the case is transferred will deal with it in the same manner as if it had been originally instituted in that Court. 36.2

Procedure when Garnishee does not pay into Court or falls to appear.—Where the Garnishee does not, within the time specified in the notice or within further such time as the Judge may allow, pay into Court the said debt or the amount payable under the said negotiable instrument or does not deliver into Court the said property or so much of the debt or amount or property as is sufficient to satisfy the decree or order and the cost of execution or does not appear and show cause against the notice, the Judge may order the Garnishee to comply with the terms of such notice or pass such other order as he may deem fit.

36.3

Procedure when Garnishee disputes his liability.—If the Garnishee disputes his liability, the Judge instead of making such order may order that any issue or question necessary for

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198 determining his liability be tried as though it were an issue in a suit, and upon the determination of such issue shall pass such order upon the notice as he may think fit. 36.4

If notice is dismissed, attachment to stand raised.—If the Garnishee appears in answer to the Garnishee notice and shows cause to the satisfaction of the Judge, the notice shall be dismissed and upon such dismissal the attachment order under Order XXI rule 46, 51 or 52 of the Code of Civil Procedure shall stand raised and the prohibitory order, if any, shall stand discharged.

36.5

Claim of third person.—Whenever in any proceedings under this Chapter, it is alleged or appears to the Judge to be probable that some person other than the judgment–debtor is or claims to be entitled to the debt attached or the amount payable under the negotiable instrument or the property attached or claims to have a charge or lien upon or interest in such debt or amount or property, the Judge may order such third person to appear before the Judge, state the nature of his claim with particular thereof and if necessary, prove the same.

36.6

Order to be made on hearing third person.—After hearing such third person and any other person who may subsequently be ordered to appear, or in the case of such third or other person not appearing when ordered, the Judge may pass such order as hereinbefore provided or such other order upon such terms, if any, with respect to the lien or charge or interest, if any, of such third person or other person as the Judge may deem fit and proper including an order that any question or issue necessary for determining the validity of the claim of such third or other person be tried as though it were an issue in a suit.

36.7

Order against Garnishee to be executable as a decree in favour of decree-holder.— (a)

An Order made by the Judge under rules 346, 347 or 350 against the Garnishee shall be executable as if it

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199 were a decree of the Court in favour of the decreeholder. (b)

When money or amount under the negotiable instrument or property is received in Court as a result of an Order under rules 346,347 or 350 above, the money shall not be paid out and further steps in execution in respect of the negotiable instrument or property shall not be taken till the time for filing an appeal against the said order is over and where an appeal is filed, till further orders of the Appellate Court.

36.8

Discharge of Garnishee.—Any payment or delivery made by a Garnishee in compliance with a garnishee notice, or an order made against him under this Chapter or any money or property realised in execution of an order under this chapter shall be valid discharge of the Garnishees’ liability to the Judgment debtor and to any other person ordered to appear as aforesaid to the extent of the amount paid or property delivered or property realised in execution, although the decree or order in execution of which the application under rule 345 was made or the order passed in the proceedings on such application may be set aside or reversed.

36.9

Garnishee proceedings against a firm.—Where a debt due by a firm to the judgment debtor has been attached, the firm may be proceeded against under this Chapter in the same manner as in the case of an ordinary Garnishee and the provisions of Order XXX of the Code of Civil Procedure shall, so far as applicable, apply to such proceedings, although one or more partners of such firm may be resident outside the jurisdiction of the Court; provided that any person having the control or management of the partnership business or any partner of the firm who is within the jurisdiction of the Court is served with the Garnishee notice. An appearance by any partner pursuant to such notice shall be sufficient appearance by the firm.

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200 36.10

Cost to be in the discretion of the Court.—The cost of any application under this Chapter and of any order made thereon, shall be in the discretion of the Court.

36.11

Applicability of CPC Or.21 Rr.46-A to 46-I.—The provisions of Order XXI Rule 46-A to 46-I of Code of Civil Procedure, 1908 shall apply mutatis mutandis to the Garnishee proceedings.

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201

CHAPTER 37 SECURITY

37.1

Security to be furnished to Officer designated by Registrar-General.—When security is ordered to be furnished, it shall, unless otherwise ordered be given to the Officer designated by Registrar-General or to such other Officer as the Court may direct.

37.2

Notice to be given to the opposite party.—The Officer designated by Registrar-General shall before accepting the security direct notice to issue to the person for whose benefit the security is to be given (hereinafter in this chapter referred to as the “opposite party”); Provided that where the security consists of cash or securities of the Government of India or of the Government of Maharashtra Bombay Port Trust Bonds or Mumbai Municipal Bonds, the issue of notice may be dispensed with; Provided further that unless otherwise ordered or consented to by the opposite party, four days’ notice of the meeting to consider the security shall be given by the party tendering the security to the opposite party.

37.3

Particulars of security to be furnished.—The party tendering the security shall, along with the notice, furnish to the opposite party particulars of the security proposed to be offered and shall also file the same in the Office of the Officer designated by Registrar-General.

37.4

Immovable property offered as security.—If the security offered consists of immovable property, inspection of the title deeds of the property shall be given to the opposite party. If

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202 the security is accepted by the Officer designated by Registrar-General the title deeds shall be deposited in the Office of the Officer designated by Registrar-General and the party offering the title deeds shall sign a bond in favour of the Officer designated by Registrar-General. 37.5

Surety or sureties as security.— (a)

If the security required to be furnished is of a bond to be given by a surety or sureties, particulars of the name and address of each surety as also the residence of each surety during the preceding six months and the description of the property which such surety may offer for the purpose of justification shall along with the notice be furnished to the opposite party and the same shall also be filed in the Office of the Officer designated by Registrar-General.

(b)

Every person offering himself as a surety shall, unless the opposite party consents to the acceptance of such person as surety, produce before the Officer designated by Registrar-General documents relating to the property which he offers for the purpose of justification and shall make his affidavit in that behalf.

(c)

The affidavit of justification shall be deemed insufficient, unless it states that the person justifying is worth the amount required, over and above what will pay his just debts and over and above every other sum for which he is then surety.

(d)

The Officer designated by Registrar-General may direct that the person justifying be examined on oath touching the value of his property and the debts and liabilities to which he is subject.

(e)

Unless otherwise ordered, an offer of more then two sureties shall not be accepted.

(f)

If the surety is accepted, the surety shall sign a bond in favour of the Officer designated by Registrar-General.

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203 37.6

Companies or corporations as sureties.—A bond given by a company or a corporation, approved by the Chief Justice, may be accepted as security. The Officer designated by RegistrarGeneral shall maintain a list of companies and corporations approved for this purpose by the Chief Justice.

37.7

Assignment of Bond.—The Court or the Judge in Chambers may order the Officer designated by Registrar-General to assign the bond to any person for the purpose of suing on the same, on such terms as it or he may think fit.

37.8

Rules in this chapter relating to Registrar(O.S.)/ Prothonotary to apply to other officers.—When security is ordered to be given to an officer other than the Officer designated by Registrar-General the provisions in this chapter relating to the Officer designated by Registrar-General shall, with any necessary modifications, apply to such other officer.

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204

CHAPTER 38 SALE OF PROPERTIES & SETTLING OF PROCLAMATION OF SALE

A.

SALE OF PROPERTIES

38.1

Copy of decree or order for sale to be filed.—An authenticated copy of every decree or order for the sale of property by the Commissioner shall be filed in the office of the Commissioner.

38.2

Sale to be to the highest bidder offering a sufficient sum.— Every such sale shall be to the highest bidder, provided that if the Commissioner is of opinion that a sufficient sum has not been offered, he may postpone the sale.

38.3

Applicability of provisions of Order XXI Rule 64 to 96 of the Code of Civil Procedure and relevant provisions of Chapter XXI of the Civil Manual regarding sale of property by Commissioner for Taking of Accounts.—The provisions of Order XXI Rule 64 to 96 of the Code of Civil Procedure and relevant provisions of Chapter XXI of the Civil Manual shall apply mutatis mudandi to the sale of movable and immovable properties ordered by the Commissioner for Taking Accounts. {NB: This has to be retained, because O.21 deals with execution and here it is being specifically applied to a Commissioner.}

38.4

Carriage of proceedings.—When mortgaged property is to be sold, the mortgagees or the first mortgagee, and in other cases the plaintiff or the party having the carriage of the general proceedings, shall have the carriage of the proceedings relating to the sale; but the Court may, when

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205 necessary, commit the carriage of such proceedings to any other party. 38.5

Document of title to be left with the Commissioner and to be subject to his directions.—All documents of title relating to the property to be sold in the possession or power of any of the parties shall be produced before and left with the Commissioner, and shall be subject to his directions both a to their custody pending the sale and their ultimate destination, such directions being subject to appeal to the Court.

38.6

Conditions of Sale.—

38.7

(a)

Every such sale shall be regulated by conditions in writing. The conditions of sale shall as few and simple as may be compatible with the nature of the property to be sold. If a reserved bid is fixed, the fact of a reserved bid having been fixed, but not the amount, shall be stated in the conditions.

(b)

When immovable property is to be sold, the conditions shall be adapted to the state of the title to such property. When immovable property is to be sold in lot, and the same monuments of title relate to more than one lot, or when the same monuments of title relate to several properties, provision shall be made in the conditions of sale for the destination of the original monuments and for the production and furnishing of copies thereof.

(c)

The conditions of sale shall be in Form No. 68 or Form No. 69 as the case may be, with such variations as the circumstances of each case may require.

Proclamation, notification and conditions of sale and abstract of title by whom to be prepared.—The proclamation, notification and conditions of sale and an abstract of title when immovable property is to be sold shall be prepared by the Advocate on record for the party having the carriage of the proceedings.

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206 38.8

Settlement of proclamation, notification, etc.—Draft of the proclamation, notification, conditions of sale and abstract of title shall be lodged with the Commissioner, and he shall be requested to fix a date for settling the same. Notice of such date shall be served on all parties entitled to appear. On the said date or on any other date or on any other date to which the matter may be adjourned, the proclamation, notification, conditions of sale and abstract of title shall be settled. The Commissioner shall then fix the date, time and place of the sale, and the time for delivery of the abstract of title and of objections to and requisitions on the title.

38.9

Copies of proclamation, notification, etc., to be filed.—On the proclamation, notification, conditions of sale and abstract of title being settled, fair copies thereof shall be filed in the office of the Commissioner.

38.10

Notification of the sale.—The notification shall specify the time and place of sale and shall contain a description and particulars of the property, together with a statement that the property is to be sold pursuant to a decree or order of the Court by the Commissioner, who shall have the right to postpone the sale if an adequate price is not offered. If the property is to be sold by lost, the notification shall also contain a statement of the manner in which it is proposed to divide the property into lots for the purpose of the sale. When the property or any portion of it is to be sold subject to an encumbrance, the nature and the amount of such encumbrance shall as far as practicable, be also stated.

38.11

Reserved bid.—Unless otherwise ordered or agreed to by the parties, the Commissioner shall fix a reserved bid before putting up a property for sale.

38.12

Valuation by approved valuer.— (a)

For the purpose of fixing a reserved bid, the Commissioner may, on notice to the parties, direct a valuation or a survey to be made of the property to be sold.

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207 (b)

The same shall be made by an architect or a surveyor or other competent person to be appointed by the Commissioner in rotation as far as possible, having regard to the nature and value of the property to be sold out of the list of architects and surveyors or competent persons approved by the Chief Justice and such architect or surveyor or other competent person shall certify the result under his signature, and shall deliver to transmit such certificate to the Commissioner under a sealed cover with the words on the cover “Private and to be opened only by the Commissioner”.

(c)

The Commissioner may, if he shall think fit, require the certificate to be varied by an affidavit of the valuer. In that case the certificate shall be referred to in the affidavit without being annexed thereto or filed therewith. The affidavit shall be so prepared as not to disclose the contents of the certificate.

(d)

On the reserved bid being fixed, the certificate shall be put in a sealed cover and kept in a safe by the Commissioner.

38.13

Reserved bid not be divulged.—Unless otherwise ordered, the reserved bid shall not be divulged to any person either before, at or after the sale.

38.14

Copy of proclamation, notification and conditions of sale with translation to be posted up.—A Copy of the proclamation, notification and conditions of sale, with such transitions thereof as the Commissioner may direct, shall be posted upon the notice board of the Commissioner’s office on the day of the sale and for one week previous thereto.

38.15

Notice of postponement of sale to be given in newspapers.—When a sale has been advertised in newspapers and is postponed for any reason, the Commissioner shall give a short notice of such postponement in the said newspapers and shall dispense with fresh notification of the sale.

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208 38.16

When sale postponed, a new day to be fixed.—When a sale is postponed, the commissioner shall be at liberty to appoint a new day for the sale of the property, and, on the notice to the parties, to make any necessary alterations in the notification and conditions of sale.

38.17

Advocate of party having carriage of proceedings to be present at the sale.—The Advocate on record for the party having the carriage of the proceedings, or the Advocate’s registered clerks, shall be present at the sale.

38.18

Proclamation, notification and conditions of sale to be read out before sale.—At the time and place appointed for the sale, the proclamation, notification and conditions of sale, and the translations thereof, shall be read out preparatory to the property being put up for sale.

38.19

Bids to be entered in the Commissioner’s note-book.—The Account of each bid shall be entered I the Commissioner’s note-book.

38.20

Postponement of sale for want of sufficient bid.—If there be no bid or the highest bid be below the reserved bid (if any) or be deemed insufficient by the Commissioner, he shall postpone the sale and record the reason for such postponement in his note-book

38.21

When property sold, from of entry to be made in the Commissioner’s note-book.—If the highest bid be equal to or higher than the reserved bid (if any) and be deemed sufficient by the Commissioner, he shall, subject to the provisions of rule 546(i) and rule 547 (i) (a) and (i)(c) make an entry in his note-book to the following effect:“I declare; A.B.to be the purchaser of the property comprised in lot ………………………… for the sum of Rs. ………………………………..”

38.22

Result of sale to be entered in bidding paper.—The result of the sale shall also be set forth in a paper to be called “the Binding Paper”, with particulars showing the lots which have been sold, and for what price, and the lots which have not

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209 been sold, and stating the names of the purchaser, and what sums have been received as deposits and the balance remaining due in respect of each purchase. If there be no bid for any lot, the words “no binding” shall be written in the bidding paper opposite the number of the lot. If the highest bid be deemed insufficient, the words “not sold” shall be written opposite the number of the lot. If the property be sold, the highest bid shall be inserted opposite the number of the lot, and the purchaser shall write his full name and subscribe his signature opposite such entry, and shall add his address and occupation. All notice thereafter served at the address so given shall be deemed to have been duly served. The bidding paper shall be in Form No. 70. 38.23

Agent of purchaser to sign Bidding paper as such.—A person purchasing as agent for another shall sign the bidding paper as such, giving the full name, address and occupation both of himself and his principal. All notices thereafter served at either of the addresses so given shall be deemed to have been duly served.

38.24

Proceedings on a re-sale.—When a re-sale is directed, unless otherwise ordered, a fresh notification shall be issued an d published and the proceedings down to the certificate of sale shall be similar to those on an original sale.

38.25

Application of encumbrance to be made a party to the suit or to join in the sale.—An encumbrance, not a party to the suit, may, at any time before the sale, apply by Notice of Motion to be made a party or for leave to join in the sale; and such order shall be made thereon, and in protection of his rights and as to costs as to the Court may seem fit.

38.26

Sale of movable property.— (a)

When movable property is sold, unless otherwise ordered by the Commissioner or agreed to by the parties, the whole of the purchase-money, or so much thereof as may be payable after giving credit for any set-off to which the purchaser may be entitled, shall be paid to the Commissioner at the time of the sale.

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210 Upon such payment being made, the sale shall become absolute and the purchaser shall be entitled to obtain delivery of the property in like manner as the purchaser of movable property sold in execution under the provision of the Code of Civil Procedure. (b)

A mortgagee who has obtained leave to bid and to setoff shall, four days before the date of the sale, file with the Commissioner a statement giving particulars of the amount he would claim by way of set-off against the purchase-money in case he is declared the purchaser.

(c)

The Commissioner shall estimate in a summary manner the amount which such mortgagee is entitled to set-off, taking into account the principal amount, interest, costs of the suit, further interest up to the date of the sale and further costs. Charges and expenses in respect of the property, as may have been ordered by the Court.

(d)

The mortgagee who is allowed a set-off shall give an undertaking to the Commissioner that if the amount he is entitled to set-off is found, after the taxation of all his costs, to be less than the amount estimated by the Commissioner, he would, if called upon by the Commissioner, fourth with deposit with the Commissioner such amount as the Commissioner may require him to deposit, having regard to the facts of the particular case.

(e)

In cases where the amount of the purchase money exceeds the estimated amount of set-off, and where the amount claimed by the mortgagee as set-off, and where the amount claimed by the mortgagee as setoff is more than the amount estimated by the Commissioner, the Commissioner may retain with him for a period of six months, out of the purchasemoney, such amount as he, in his discretion, considers necessary to provide for the excess amount claimed by the mortgagee as set-off over the estimated

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211 amount of set-off. If within the said period of six months the costs of the mortgagee have been taxed and the amount which the mortgagee is entitled to set-of has been ascertained and is found to be more than the amount which has been allowed by the Commissioner to be set-off, the Commissioner shall pay to the mortgagee the difference between the said two amounts upto the extent of the amount retained by him and the balance, if any, shall be paid by the Commissioner to the parties entitled thereto. If the mortgagee’s costs have not been taxed for a period of six months from the date of the sale, the Commissioner shall pay the amount retained by him to the parties, entitled thereto, unless otherwise ordered by the Court. (f)

In default of payment of the purchase-money as provided for in sub-rule (a), the property shall forthwith be resold and the defaulting purchaser shall forfeit claim to the property, and except where the defaulting purchaser is the mortgagee, he shall also forfeit all claim to any part of the sum for which it may subsequently be sold.

(g)

Any deficiency of price which may arise on re-sale by reason of the purchaser’s default and all costs and expenses occasioned by such re-sale shall, at the instance of any party concerned, be recoverable from the defaulting purchaser under an order to be obtained on an Interim Application, which shall be served on the defaulting purchaser and the parties to the suit. The Court may direct the defaulting purchaser to pay interest at such rate from the date of default and on such amount as to the Court may seem just.

(h)

Where there are more mortgagees than one and leave to bid and to set-off has been granted to all the mortgagees and one of the puisne mortgagees becomes the purchaser, the Commissioner shall

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212 follow such directions regarding the sale and the purchase money as may have been given by the Court at the time of granting the leave to bid and to set-off. 38.27

Sale of immovable property.— (a)

(b)

Deposit of 25% of purchase money.— (i)

When immovable property is sold, unless otherwise ordered by the Court or unless the case falls within clause (ii) or clause (iii) of this sub- rule, twenty-five per cent of the purchase money shall be deposited with the Commissioner at the time of the sale by the person who is declared the purchaser.

(ii)

Where the mortgagee of an immovable property which is sold has obtained leave to bid and to set-off his claim against the purchase money and has been declared the purchaser, he shall not be required to make any deposit if the amount of the purchasemoney is equal to or less than the amount he is entitled to set-off.

(iii)

Where the amount of the purchase-money is more than the amount which the purchaser is entitled to set-off, he shall deposit twenty-five per cent of the excess of the purchase money over the amount he is entitled to set-off.

The balance of the purchase-money, or so much thereof as may be payable after giving credit for any set-off to which the purchaser may be entitled, and the amount of stamp-duty payable on the conveyance to be executed or on the sale certificate to be issued, shall, unless otherwise ordered by the Court, be paid by the purchaser to the Commissioner within thirty days from the date of the sale. The Court may, for sufficient cause, extend the time for payment on such

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213 conditions as to payment of interest or otherwise as the Court may think fit. (c)

A mortgagee who has obtained leave to bid and to setoff shall, four days before the date of the sale, file with the Commissioner a statement giving particulars of the amount he would claim by way of set-off against the purchase-money in case he is declared the purchaser.

(d)

The Commissioner shall estimate in a summary manner the amount which the mortgagee is entitled to set-off, taking into account the principal amount, interest, costs of the suit, further interest upto the date of the sale and further costs, charges and expenses in respect of the mortgage security as may have been properly incurred by the mortgagee subsequent to the preliminary decree.

(e)

The mortgagee who is allowed a set–off shall give an undertaking to the Commissioner that if the amount he is entitled to set-off is found, after the taxation of all his costs, to be less than the amount estimated by the Commissioner, he would, if called upon by the Commissioner, forthwith deposit with the Commissioner such amount as the Commissioner may require him to deposit, having regard to the facts of the particular case.

(f)

In cases where the amount of the purchase money exceeds the estimated amount of set-off, and where the amount claimed by the mortgagee as set-off is more than the amount estimated by the Commissioner, the Commissioner may retain with him for a period of six months, out of the purchase money, such amount as he, in his discretion, considers necessary to provide for the excess amount claimed by the mortgagee as set-off over the estimated amount of set-off. If within the said period of six months the costs of the mortgagee have been taxed and the amount which the mortgagee is entitled to

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214 set-off has been ascertained and is found to be more than the amount which has been allowed by the Commissioner to be set-off, the Commissioner shall pay to the mortgagee the difference between the said two amounts upto the extent of the amount retained by him and the balance, if any, shall be paid by the Commissioner to the parties entitled thereto. If the mortgagee’s costs have not been taxed for a period of six months from the date of the sale, the Commissioner shall pay the amount retained by him to the parties, entitled thereto, unless otherwise ordered by the Court. (g)

In default of payment of the deposit required to be made under sub-rule (a), the property shall forthwith be resold.

(h)

Procedure in case of default of payment of deposits.— (i)

In default of payment of the amounts required to be paid under sub-rule (b) within the time provided therein, the deposit made by the purchaser under sub-rule (a) or any part thereof may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the Government, and the property shall be resold and the defaulting purchaser shall forfeit all claim to the property, and except where the defaulting purchaser is the mortgagee, he shall also forfeit all claim to any part of the sum for which the property may subsequently be sold.

(ii)

Where the amount of the purchase money is more the amount which the defaulting purchaser was allowed to set-off, the Court may, if he thinks fit, order such defaulting purchaser to pay to the Government an amount not exceeding twenty-five percent of the amount allowed to be set- off, an in cases where the amount of the purchase money is

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215 less than or equal to the amount which the defaulting purchaser was allowed to set-off, the Court may, if he thinks fit, order such purchaser to pay to the Government an amount not exceeding twenty-five per cent of the purchase money.

38.28

(iii)

The Prothonotary and Senior Master shall forward a copy of any order made under this sub-rule to the Government Pleader (Original Side)

(iv)

Government shall be entitled to execute an order made under this sub-rule in the same manner as a decree for payment of money.

(i)

Any deficiency of price which may arise on a resale by reason of the purchaser’s default and all costs and expenses occasioned by such re-sale shall, at the instance of any party concerned, be recoverable from the defaulting purchaser under an order to be obtained on an Interim Application which shall be served on the defaulting purchaser and the parties to the suit. The Court may direct the defaulting purchaser and the parties to the suit. The Court may direct the defaulting purchaser to pay interest at such rate form the date of default and on such amount as to the Court may seem just.

(j)

Where there are more mortgagees than one and leave to bid and to set-off has been granted to all the mortgagees and one of the puisne mortgagees becomes the purchaser, the Commissioner shall follow such directions regarding the sale and the purchase money as may have been given by the Court at the time of granting the leave to bid and to set-off.

Application to compel delivery of abstract.—If the abstract of title be not delivered to the purchaser within the time specified in the conditions of sale, the purchaser may apply by Interim Application for an order requiring the party having

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216 the carriage of the proceedings of deliver the abstract within a specified time. The Court may make such order thereon as to him may seem just. 38.29

Questions arising out of objections or requisitions.—Any disputed questions arising out of objections or requisitions by a purchaser may be brought by either party before the Commissioner, who shall certify his opinion, and shall also certify by whom the costs ought to be paid.

38.30

Determination of the question whether a good title has been made out.—When important question of title are in dispute, either party may apply by Interim Application to Court for determination of the question, whether a good title has been made out. The Court may, before deciding the question, refer the matter to the Commissioner for inquiring into any question of fact.

38.31

Costs of inquiry.—If the title be found to be good on grounds not appearing on the abstract the purchaser, unless otherwise ordered, shall be entitled to his costs of the inquiry. If the title be found to be good on grounds appearing on the abstract, the purchaser, unless his objections have been frivolous or vexatious or unless otherwise ordered, shall not be liable to pay more than his own costs of the inquiry.

38.32

Application by purchaser for leave to pay purchase-money into Court.—After a sale has been made the purchaser may, if prepared to accept the title, at once pay the balance of the purchase money and the amount of stamp duty into Court to the credit of the suit, or he may, if not prepared to accept the title, apply for leave to pay the purchase money and the amount of stamp duty into Court, without prejudice to any question as to the title to the property. Such application shall be made by Interim Application addressed to the party having the carriage of the proceedings and also to the party whose property has been sold. The Court may impose on the purchaser such terms as he may deem just as to the purchaser paying interest upon the purchase money or waiving his right to the rents upto the time when the question as to the title is

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217 determined, in the event of a good title being made to the property. 38.33

Application by any other party against defaulting purchaser.—Any party interested may apply by Interim Application for such order as it may be necessary to obtain for the purpose of compelling a purchaser, who has neglected to pay the purchase-money or the amount of stamp duty or both in due time, to comply with the conditions of sale. Such order may be made subject to the right (if any) of the purchaser to obtain an inquiry as to whether a good title has been made out.

38.34

Direction for investment of purchase-money.— (a)

When an application is made to confirm the sale or when an application is made under either of the last two preceding rules for payment of the purchasemoney of the amount of stamp duty or both into Court, the purchaser or the party having the carriage of the proceedings may at the same time obtain direction for investment of the purchase-money.

(b)

Any subsequent application for that purpose shall be by Interim Application, and, unless otherwise ordered, at the expense of the applicant.

38.35

Investment of purchase-money.—The purchase-money, when paid into Court, shall be invested by the Commissioner in fixed deposit with any one of the banks specified in column 2 of the first Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, for a period of thirty-one days and the Commissioner shall thereafter renew the said deposit for similar periods of thirty-one days until the purchase money is ordered by the Court to be paid out. Any interest that may have accrued shall be paid to such parties as the Court or the Court may direct.

38.36

Purchaser when deemed to have accepted the title.—A purchase of immovable property or of any right, title and interest in such property, who pays the purchase-money and

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218 the amount of stamp-duty into Court without reserving his right to object to the title, or who enters into possession, shall be deemed to have accepted the title. 38.37

Purchase-money not to be paid out without an order.—The purchase-money paid into Court shall not be paid out or otherwise disposed off without an order of the Court or the Court, except in the case of ground rent and municipal taxes due in respect of the property sold.

38.38

Bidding not to be re-opened.—No bidding shall be reopened, unless sit be shown that there has been fraud or misconduct or material irregularity in the management of the sale or that the purchaser, by reason of being in a fiduciary position, was disqualified from purchasing.

38.39

Sale to be confirmed by the Court.—No sale of immovable property made under this Chapter shall become absolute, until it has been confirmed by the Court.

38.40

Possession of immovable property.—Unless otherwise ordered, the purchaser shall not be entitled to possession of the property purchased by him until the sale is confirmed. On confirmation of the sale, the purchaser shall be entitled to obtain possession of the property in like manner as the purchaser of immovable property sold in execution under the provision of the Code of Civil Procedure

38.41

Conveyance.—On the purchase-money of immovable property and the amount of stamp-duty being paid and the sale confirmed, the purchaser shall be entitled to a proper conveyance, in which all necessary parties shall join as the Commissioner shall direct.

38.42

Purchaser to prepare conveyance.—Unless otherwise ordered, the conveyance shall be prepared by and at the expense of the purchaser and shall be sent for approval to the Advocate on record for the party having the carriage of the proceedings, who shall return it within two weeks with his remarks, if any.

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219 38.43

Failure to return draft conveyance.—If the draft conveyance is not returned within two weeks, the purchaser shall lodge a copy of the same in the office of the Commissioner for being settled by the Commissioner.

38.44

Conveyance to be settled by the Commissioner.—Subject to appeal to the Court, every conveyance shall be settled by the Commissioner if the parties differ about the same or if any of them be under any legal disability of if the Advocate on record for the party having the carriage of the proceedings fails to return it to the purchaser within two weeks.

38.45

Certificate of Approval.—When a conveyance is settled by the Commissioner a certificate of approval shall be issue by him or endorsed by him upon such conveyance.

38.46

Proceedings to procure execution of conveyance.—If any person certified by the Commissioner to be a necessary party to a conveyance be a minor or otherwise under disability, or being sui juris shall neglect or refuse to execute the conveyance, an application may be made to the Court for an order appointing the Commissioner, in the case of a person under disability, to convey the property and to execute the conveyance for him and in his name, and in other cases directing the person in default to execute the conveyance within a time to be fixed by the order and in default thereof appointing the Commissioner to convey the property and execute the conveyance for him and in his name. The application shall be by Interim Application and shall be supported by affidavit and it shall be shown that the person required to execute the conveyance was certified by the Commissioner to be a necessary party and that the conveyance had been approved by such party or by the Commissioner. Unless otherwise ordered, the costs of such application, in the case of a person under disability shall be part of the costs of the sale, and in other cases shall be borne and paid by the defaulting party.

38.47

Substitution of name.—The name of a principal or subpurchaser shall not be substituted for that of the person certified to be the purchaser without an order to be applied

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220 for on an Interim Application. The application shall be supported by affidavit, stating the facts; and when it is sought to substitute the name of a sub-purchaser for that of an original purchaser, the affidavit shall also show that there was no collusion or under-bargain between the purchaser and sub-purchaser and sub-purchaser before the sale was confirmed, or shall disclose the terms of the under-bargain, if any. 38.48

Substitution of names not allowed after execution of conveyance.—No order shall be made for the substitution of names under the last preceding rule after the execution of the conveyance to the purchaser.

38.49

When additional price and additional stamp-duty to be paid into Court.—Unless it shall appear that the purchase by a sub-purchaser was made after the sale had been confirmed or unless otherwise ordered, every order of the substitution of the name of a sub-purchaser for that of an original purchaser shall be made subject to the payment into Court as part of the purchase-money of any additional price obtained by the original purchaser from the sub-purchaser and of the amount of additional stamp duty that may be payable on account of the additional price.

38.50

One application may be made for the substitution of names and confirmation of sale.—The application for the substitution of names under rule 571 may be made as part of the application to confirm the sale.

38.51

Extra costs of obtaining substitution of names.—Unless otherwise ordered, all extra costs incurred in obtaining the substitution of names under rule 571 beyond those of an ordinary application for confirmation of sale shall be borne by the principal whose name is to be substituted for that of an agent, or by the sub-purchaser whose name is to be substituted for that of an original purchaser.

38.52

Mortgagee to include sharer in property which is subjectmatter of partition suit, administration suit and partnership suit.—In this chapter,, the expression

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221 “mortgagee” shall include a person who in entitled to a share in property which is to be sold and which is the subject matter of a suit for partition, or for administration of an estate or for dissolution of a partnership and who has been allowed leave to bid and to set off his share against the purchase money. 38.53

B.

Sale by private contract.—The sale of property ordered to be sold by the Commissioner by private contract shall be regulated by the foregoing rule, so far as they may be applicable.

PROCLAMATION OF SALE IN EXECUTION

38.54

Copy of warrant of sale of property attached in execution to be lodged in Commissioner’s office.—When immovable property has been attached in execution of a decree and the attaching creditor is desirous of having the same sold, he shall lodge a certified copy of the warrant of sale in the Commissioner’s office

38.55

Commissioner may summon judgment-debtor to attend and produce title-deeds of his property.—The Commissioner shall, when the attendance of the judgmentdebtor can conveniently be procured, issue a summons calling upon him to attend upon a day therein named and to produce and lodge with the Commissioner all title-deeds and other documents affecting the property proposed to be sold which may be in his possession or power. Such documents shall ( if produced) be left with the Commissioner and shall be subject to his directions both as to their custody pending the sale and their ultimate destination, such directions being subject to appeal to the Court. The summons shall be in Form No. 76

38.56

Inquiry before commissioner as to matters specified in Order XXI, Rule 66, C.P. Code.—If the judgment-debtor attends upon the day named in the summons, the Commissioner shall examine him on any matter affecting his

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222 title to the attached property. The judgment creditor may also examine him on any matter relating thereto. If the judgmentdebtor fails to attend on the summons or if no summons has been issued, the Commissioner may proceed ex-parte. In conducting an inquiry under these rules the Commissioner may also summon any person whom he thinks necessary and examine him in respect of the matters specified in Order XXI, Rule 66, of the Code of Civil Procedure an may require him to produce any documents in hi possession or power relating thereto, but such documents shall not, unless the Commissioner for reasons to be recorded otherwise directs, be handed over for perusal to any person other than the Commissioner or the Interpreter, and shall at the end of the particular inquiry to which they relate be restore to the person who has produced them. 38.57

Notice to all persons to lodge claims against attached property.—The Commissioner shall also, at the instance of the judgment- creditor, issue a notice to all persons having any right or interest in or any charge or claim on the attached property or any part thereof ( except claims under Order XXI, rule 58, of the Code of Civil Procedure involving an objection to the attachment or seeking the removal of the same, which claims will be disposed off by the Court) that they should, on or before a day to be named therein, lodge in the office of the Commissioner a statement verified on oath or solemn affirmation of the right, interest, charge or claim set up in each case. The notice shall in Form No. 77 or as near thereto as the circumstances of the case may require, and shall be published in such newspapers as the Commissioner may direct and copies thereof shall be posted upon the attached premises and in conspicuous places in the Collector’s office and in the High Court.

38.58

Time to be fixed for investigation of claims.—When any such claim has been lodged in the office of the Commissioner, he shall enter the same in a register to be kept for the purpose and shall fix a day for the investigation thereof. The judgment-creditor shall then obtain from the Commissioner a summons calling upon the claimant to

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223 appear before the Commissioner upon the day so fixed with such evidence as he may desire to produce in support of his claim. 38.59

Inquiry into claims.—Upon the day named in the summons or upon any adjourn med thereof, the Commissioner shall proceed to deal with the several claims brought forward relating to the property proposed to be sold, and after a perusal of the document by which such claims are supported and resisted and after taking such oral evidence and hearing such arguments as shall be brought forward, determine summarily, whether such claims or any of them shall be included in the list of claims to be appended to the proclamation of sale.

38.60

On completion of inquiry a list of claims to be drawn up.— When the Commissioner shall have investigated the several claims relating to the attached property, he shall draw up a list of all claims for which a reasonable and probable ground exists, and append the same to the proclamation of sale.

38.61

Proclamation of sale.—The Commissioner shall immediately after such inquiry prepare the proclamation of sale required by Order XXI, Rule 66 of the Code of Civil Procedure in Form No. FF with such variations as the circumstances of the particular case may require, and shall forward the same to the Sheriff of Mumbai upon the application of the judgment-creditor or Advocate on record.

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224

CHAPTER 39 SPECIAL CLASSES OF PROCEEDINGS

A. 39.1

SUMMARY SUITS When no decree applied for within six months.—If the plaintiff does not within six months after the Defendant gives notice to the Plaintiff of his having filed appearance take out a Summons for Judgement, the Registrar-General shall place the suit before the Court for directions to convert the suit in a regular civil suit, and the suit shall proceed as a regular suit and not as a summary suit and the provisions of the Code of Civil Procedure, 1908 and these Rules applicable to regular civil suits shall apply to such summary suit. Unconditional leave to defend shall be deemed to have been granted on the expiry of the said period of six months, without any order of a court; and the suit shall be set down before the RegistrarGeneral within two weeks thereafter for directions regarding filing of Written Statement(s). The starting point of limitation for filing of the Written Statement shall be from the date of the Registrar-General’s order directing the filing of Written Statement/s.

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225 B.

SUITS BY INDIGENT PERSONS

39.2

Defendant may be allowed to defend as an indigent person.—The provisions contained in Order XXXIII of the Code of Civil Procedure and in these rules shall apply, with any necessary modification, to a defendant and the Court may allow a defendant to defend the suits as an indigent person.

39.3

Application by an indigent person for leave to be by petition.—An application for permission to sue, to proceed with a suit or to defend a suit as an indigent person shall be made by petition, setting out concisely in separate paragraphs the facts and the relief prayed; such petition shall be presented to the Registrar-General who shall, on satisfying himself that the provisions of Order XXXIII of the Civil Procedure Code have been complied with and not otherwise, order it to be interpreted gratis, where necessary.

39.4

Notice for investigation.—On such application being filed in the Office of the Registrar-General, on the application of an indigent person, a notice returnable before the RegistrarGeneral for investigation of the petitioner’s claim that he is an indigent person, may be issued to the Government of Maharashtra through the officer concerned, including, if thought fit by service at the office of the Government Pleader.

39.5

Suit in ordinary form may be continued as by an indigent person.—The Court may allow a suit, which has been commended in the ordinary form, to be continued as a suit by an indigent person.

39.6

Advocate may be appointed for indigent person.— (a)

Where a person is permitted to sue or defend as an indigent person, the Court may, if necessary appoint an Advocate to assist him, and an Advocate so appointed shall not be at liberty to refuse this assistance, unless he satisfies the Court that he has good reason for refusing. The Court may at any stage

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226 of the suit or matter withdraw legal assistance from such an indigent person, if it or he deems it proper to do so. (b)

The Court may also, pending the inquiry into the claim that the indigent person is unable to pay the court-fees, appoint an Advocate to assist the petitioner for the purpose of any interlocutory application which may be made by any party before the inquiry is concluded. The Advocate so appointed shall not be at liberty to refuse his assistance unless he satisfies the Court that he has good reason for refusing. Such appointment shall come to an end after leave to sue or defend as an indigent person is refused. If leave to sue or defend as an indigent person is granted, the appointment of the Advocate to assist the indigent person shall continue.

39.7

Duty of Advocate in suits or matters by indigent persons.—It shall be the duty of the Advocate, who may be appointed to act for a person permitted to sue or defend as an indigent person, to take care that no notice is served, summons issued or petition presented without good cause and to report to the Court every six months the progress of the suit or matter.

39.8

No fees to be taken from indigent person.—Whilst a person sues or defends as an indigent person, no person who has been appointed by the Court to assist him shall take or agree to take or seek to obtain from him any fee, profit or reward for the conduct of his business in the Court, and any such person who takes or agrees to take or seeks to obtain any such fee, profit or reward shall be guilty of misconduct: Provided that notwithstanding anything herein contained, the Court shall have power to award costs again the adverse party or out of the property recovered in the suit and to direct the payment thereof to the Advocate representing the indigent person.

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227 39.9

No compromise without leave of the Court.—No cause, suit or matter commenced or carried on by an indigent person whether plaintiff or defendant shall be compromised on any account whatever without leave first had and obtained from the Court.

39.10

Direction for payment of Court fees in every decree or order.—Unless otherwise ordered, in every suit in which an indigent party is concerned a direction shall be inserted in every decree or order for payment to Government of the court-fees which he would have had to pay had he not been permitted to sue or proceed with the suit or defend as an indigent person.

39.11

Memo of fees to Government Advocate.—In every suit in which an indigent person is concerned, the Officer designated by Registrar-General after the disposal of the suit send to the Advocate to Government a memo of the courtfees due and payable by such an indigent person.

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228 C. 39.12

ORIGINATING SUMMONS Who may apply for the issue of Originating Summons and in respect of what matters.—The executors or administrators of a deceased person or any of them and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir or legal representative, or as beneficiary under the trusts of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may apply for the issue of an Originating Summons returnable before the Court for such relief of the nature or kind following as may by the summons be specified and circumstances of the case may require (that is to say), the determination, without an administration of the estate or trust, of any of the following questions or matters:(a)

any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or legal representative, or beneficiary;

(b)

the ascertainment of any class of creditors, devisees, legatees, heirs, legal representatives, beneficiaries or others;

(c)

the furnishing of any particular accounts by the executors, administrators or trustees and the vouching (when necessary) of such accounts;

(d)

the payment into Court of any moneys in the hands of the executors, administrators or trustees;

(e)

directing the executors, administrators or trustees to do or abstain from doing any particular act in their character as such executors, administrators or trustees;

(f)

the approval of any sale, purchase, compromise or other transaction;

(g)

the determination of any question arising in the administration of the estate or trust.

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229 39.13

39.14

Order for administration of estate or of the trust.—Any of the persons named in the last preceding rule may, in like manner, apply for and obtain an order for (a)

the administration of the estate of the deceased;

(b)

the administration of the trust.

Persons to be served with the summons.—The persons to be served with the summons under the last two preceding rules shall be the following (that is to say) (a)

Where the summons is issued at the instance of an executor or administrator or trustee: (i)

for the determination of any question under sub section (a) (e) (f ) or (g) of rule 1, the persons whose rights or interests are sought to be affected;

(ii)

for the determination of any question under sub section (b) of rule 1, all persons claiming to be members of the class;

(iii)

for the determination of any question under sub section (c) of rule 1, all persons interested in taking such accounts;

(iv)

for the determination of any question under sub section (d) of rule 1, all persons interested in such money;

(v)

for relief under sub section (a) of rule 2, the heirs, legal representatives, residuary devisees and residuary legatees;

(vi)

for relief under sub section (b) of rule 2, the beneficiaries;

(vii)

if there be more than one executor or administrator or trustee and they do not all concur in having the summons issued, those who do not concur.

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230 (b)

Where the summons is issued at the instance of any person other than the executors, administrators or trustees, the said executors, administrators or trustees.

39.15

Vendor or purchaser may apply for the issue of Originating Summons.—A vendor or purchaser of immovable property or their representatives respectively may, at any time or times and from time to time, apply for the issue of an Originating Summons returnable before the Court for the determination of any questions which may arise in respect of any requisitions or objections or any claim for compensation, or any other question arising out or connect with the contract, not being a question affecting the existence or validity of the contract.

39.16

Persons to be served with such summons.—The summons under the last preceding rule shall be served upon such persons as under the existing practice would be the proper defendants to a suit for the specific performance of the contract out of which the question to be settled arises.

39.17

Mortgagee or mortgagor may apply for issue of Originating Summons.— Any mortgagee, whether legal or equitable, or any mortgagor or any person entitled to or having property subject to a legal or equitable charge. or any person having the right to foreclose or redeem any mortgage. whether legal or equitable, may apply for the issue of an Originating Summons, returnable before the Court, for such relief of the nature or kind following as may by the summons be specified and as the circumstances of the case may require. (that is to say) sale, foreclosure, delivery of possession by the mortgagor, redemption, re-conveyance and delivery of possession by the mortgagee.

39.18

A partner may apply for issue of Originating Summons.— Any partner in a firm or his legal representatives may apply for the issue of an Originating Summons returnable before the Court against his partners or former partners or their legal representatives (if any) for the purpose of having the partnership dissolved (if it be still subsisting) and for the

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231 purpose of taking the accounts of and winding up such partnership and for the determination of any question arising in such partnership, whether to be dissolved or wound up or not. 39.19

Persons interested under deed, etc. may apply for issue of Originating Summons.—Any person claiming to be interested under a deed, will or other written instrument, may apply for the issue of an Originating Summons returnable before the Court for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the person interested.

39.20

Court not bound to determine question of construction.— The Court shall not be bound to determine any such question of construction if in its or his opinion it ought not to be determined on Originating Summons.

39.21

Upon what persons Originating Summons under rules 22 & 24 of Chapter XXIII to be served.—The summons under rules 22 & 24 of Chapter XXIII shall be served upon the persons who would be proper defendants under the existing practice if the same relief were sought in a suit.

39.22

Service on other persons by direction.—The Court may, in all cases, direct such other persons to be served with an Originating Summons as the Court may think fit.

39.23

Plaint to be filed.—An Originating Summons shall be in the form of a Plaint and shall specify the relief sought and shall be signed by the Registrar-General before being issued. The person entitled to apply shall present with it to the RegistrarGeneral a plaint without a prayer setting forth concisely the facts upon which the relief sought by the summons is founded. The plaint shall specify at the end but not in the form of a prayer the relief which is sought by the summons. No document shall be annexed to the plaint unless greater brevity or clearness would be gained by reference to annexed document which are not annexed thereto.

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232 39.24

Plaint to be numbered with letters O.S.—The plaint when accepted shall be filed and numbered as an ordinary suit and entered in the Register of suit, but after the serial number the letter “O.S.” shall be placed to distinguish it from plaint filed in ordinary suit.

39.25

Service of Originating Summons.—The Originating Summons together with a copy of the plaint shall be served by the Advocate on record at whose instance the summons is issued and the summons after service shall be filed in the proceedings.

39.26

Returnable date of Originating Summons.—Originating Summons shall, in ordinary cases, be made returnable thirty clear days after service, but the Officer designated by Registrar-General may fix such longer period as to him may seem proper.

39.27

No obligation to file written statement or affidavit in reply.—A Written Statement or affidavit may be made in answer to the plaint but there shall be no obligation to make the same unless the Court otherwise directs.

39.28

When Originating Summons may be supported by evidence.—On the hearing of the Originating Summons if the parties thereto do not agree as to the correctness of the facts set forth in the plaint, the Court may order the summons to be supported by such evidence as he may think necessary and may give such directions as he may think just for the trial of any questions arising thereout. The Court may direct such amendment to be made in the plaint and summons as may seem to him to be necessary to make them accord with the existing state of facts, so as properly to raise the questions in issue between the parties.

39.29

What may be done on hearing Originating Summons.— The Court hearing an Originating Summons may if it thinks fit, adjourn the summons into Court. If the Court considers that the matters in respect of which relief is sought cannot conveniently and properly be disposed off on an Originating Summons, the Court may refuse to pass any order on the

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233 summons, may dismiss the same and refer the parties to a suit in the ordinary course, and in such case may make such order as to costs already incurred as may seem to him to be just. 39.30

When costs of Originating Summons may be allowed as in a defended suit.—Where an Originating Summons is adjourned into Court, the Court may, if it thinks the question to be determined is of sufficient importance, order the costs to be taxed on the same scale as in a defended suit. In all other cases, the cost of one Advocate will be allowed to the plaintiff, and to each person or set of persons, having divergent interests.

39.31

When costs of ordinary suit may be allowed as in an Originating Summons.—Where at the hearing of suit filed in the ordinary way it shall appear to the Court that the party instituting the suit might have obtained the desired relief by Originating Summons, he may direct that such party shall only be allowed on taxation such costs as would have been allowed in an Originating Summons.

39.32

Order made on Originating Summons to be drawn up as decree of Court.—If the Court is of the opinion that the matter is fit to be dealt with on an Originating Summons, the Court may pronounce such judgment as the nature of the case shall require, and any order made by the Court shall be drawn up as a decree of the Court, provided that if the Court dismisses the summons under rule XXX, it shall be sufficient for the Court to make an order to that effect which shall be filed in the proceedings.

39.33

Directions as to carriage or execution of decree.—The Court may give any directions touching the carriage or execution of such decree or the service thereof upon persons not parties, as the Court may think fit.

39.34

Subsequent summons about same estate.—When an Originating Summons has been issued under rules 1 & 2 of this Chapter every subsequent summons relating to the same estate or trust shall, so far as possible, be heard by the Court who heard the Original Summons.

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234 39.35

Order II Rule 2 of the Code of Civil Procedure not to apply to plaints filed in support of Originating Summons.—Nothing in Order II, Rule 2, of the Code of Civil Procedure shall apply to plaints filed to support an Originating Summons or to any proceedings thereunder.

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2011

235 D. 39.36

ADMINISTRATION, PARTITION & PARTNERSHIP SUITS Interim Applications to classify interest of parties and to nominate advocates.—Before the framing of issues, in all suits for (a)

administration,

(b)

partition; or

(c)

dissolution and accounts of partnership firms,

where there are more defendants than one, the plaintiff shall, simultaneously with the service of the Writ of Summons upon the defendants, apply by Interim Application addressed to all the defendants, for directions to classify the interest of the parties to the suit. 39.37

The parties shall state briefly on affidavit the nature of their respective interests in the suit and in the property which is the subject matter thereof.

39.38

No preliminary decree in any such suit shall be passed before the filing of Written Statements and framing of issues unless all parties consent to the passing of such a preliminary decree, such consent to be expressed by every party in an Affidavit filed in the suit.

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2011

236

CHAPTER 40 PRESENTATION OF APPEALS AND APPLICATIONS 40.1

Institution of proceedings.—All matters which are to be instituted on the Appellate Side of the High Court shall be presented in the office of the Registrar to such person as the Registrar may, by special or general orders, authorise. The person to whom such matters are presented shall, if he accepts the same, endorse thereon under his initials the date of filing. No matter which has not been first filed in the office shall be brought before or presented to the Court, including the Court of the Registrar without leave of the Court.

40.2

Accompaniments to memorandum of appeal.—Every memorandum of appeal shall be accompanied by such documents as may be specified periodically including inter alia— (a)

In appeals from decrees: (i)

Memorandum of Appeal;

(ii)

Cross Objections, if any, under O.XLI Rule 22 of the Code of Civil Procedure, 1908;

(iii)

the judgement of the trial court under appeal;

(iv)

the decree of the trial court;

(v)

Previous ad-interim and interim orders, if any, of the trial court/Appeal Court;

(vi)

Pleadings;

(vii)

Issues;

(viii)

Depositions of witnesses examined on behalf of the Plaintiff, including depositions taken de bene esse or on commission, if admitted in evidence at

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237 the hearing; (ix)

40.3

40.4

Depositions of witnesses examined on behalf of the defendant/s including depsotions taken de bene esse or on commission, if admitted in evidence at the hearing.

(b)

In Second Appeals and Appeals from appellate decrees.— In second appeals and appeals from appellate decrees, the memorandum of appeal shall also be accompanied by the certified copies of judgment or order of the trial Court and of the grounds of appeal and cross-objections, if any, in the lower appellate Court, together with one legible copy of each of the same.

(c)

In appeals from orders.—Appeals from orders under section 104 and Order XLIII, Rule I of the Code of Civil Procedure shall, in addition to the accompaniments prescribed above, be accompanied by legible copies of (i) the Plaint, (ii) the Written Statement, if any, (iii) the Interim Application, if any, (iv) the Affidavits in Support, Reply and Rejoinder, if any; (v) all other relevant documents referred to in the order and (vi) also those on which the appellant wishes to rely.

Printed Appeal Paper Books to be dispensed with in all civil and criminal appeals from subordinate courts.—In all appeals, both civil and criminal, filed against orders of subordinate courts, it shall not be necessary to prepare a printed appeal book. Instead: (a)

Where available, computer print-outs of depositions recorded by the subordinate court and, in respect of all other documents, photocopies duly authenticated by the registry of such court, shall be compiled and transmitted with the record and proceedings to the High Court; and

(b)

No separate copy of the roznama of the subordinate court shall be required to be included in such compilation.

Additional copies to be filed in appeals.—When presenting any appeal, an additional legible copy of the memorandum of appeal, and in appeals which are required to be placed before Division Bench, a set of legible copies of the judgments of the lower Courts paged in accordance with the certified copies shall be supplied.

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238 40.5

Appeals under the Motor Vehicles Act.—The appeal memo under the Motor Vehicles Act, 1988, filed under section 173 of the said Act, shall be accompanied by a certificate by the Registrar of the High Court that a sum of Rs.25,000 (Rupees Twenty Five Thousand only) or 50 per cent whichever is less of the amount awarded by the award appealed from has been deposited by the appellant in the High Court. The appeal which is not accompanied by such a certificate shall be placed before the Registrar for orders.

40.6

Accompaniments in Civil Revision Applications.—

40.7

(a)

Every application for the exercise of revisional jurisdiction of the High court shall be accompanied by a certified copy of judgment or order complained of.

(b)

Accompaniments in case of appellate decrees or orders sought to be revised.—If the order sought to be revised is an appellate decree or order, it shall be accompanied by certified copies judgment or order of the trial Court and the memorandum of appeal and of cross-objections, if any, filed in the lower appellate Court.

(c)

Where accompaniments are lacking, the application to be accompanied by affidavit.—Where any of the accompaniments mentioned in sub-rules (a) and (b) are lacking, the application shall be accompanied by an affidavit of the party settling out fully the efforts he had made to secure the copy or copies and how he has not been able to secure the required copy or copies in spite of his best endeavours.

Accompaniments in Revision Application against interlocutory orders.— (a)

Revision Applications against interlocutory orders shall in addition to the accompaniments prescribed in the foregoing rule, be accompanied by legible copies of the additional documents referred to in Rule 5 above.

(b)

Wherever filing of certified copy of the impugned judgment or order is essential for valid presentation of any appeal, revision or application, according to the Rules, notwithstanding such requirement, filing of copies, certified as true by the Advocate presenting the memorandum of appeal, revision or application shall be

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239 taken as substantial compliance, if the matter is very urgent. 40.8

Accompaniments to application for review.— (a)

Every application for review shall be accompanied by a legible copy of the judgment and decree or order sought to be reviewed and in cases where a review is required to be heard by a Division Bench, by two sets of such copies.

(b)

Accompaniments where review proceeds on discovery of fresh evidence.—When an application for review proceeds on the ground of discovery of fresh matter or evidence, the documents if any, relied upon shall be annexed to the application with a list in Form No. 5, Appendix H, Schedule I of the Code of Civil Procedure, together with an affidavit setting forth the circumstances under which such discovery has been made.

(c)

Where fresh Vakalatnama is not necessary.—It shall not be necessary for an Advocate who had filed a vakalatnama at the original hearing to produce a fresh vakalatnama in order to entitle him to apply for or to appear in the review. However a statement to that effect shall be filed by the Advocate.

40.9

English Translation of accompaniments.—Where, any of the accompaniments mentioned in this Chapter and required to be filed in any Appeal or Application are not in English, legible copies of translations in English of such accompaniments shall be annexed unless such accompaniments are in Marathi provided that the party or the Advocate undertakes to furnish English translations when required by the Court.

40.10

Value of claim to be shown in the memorandum, at the time of filing.—The value of the claim in appeal or in cross-objection shall be shown in the memorandum of appeal or of cross-objections at the time of the presentation of such memorandum and it shall, where necessary, be stated by way of a foot-note how the valuation has been arrived at.

40.11

Full court-fee to be paid or deposited at the time of presentation of the matter.—The full court-fee payable on the appeal, cross-objection, application or petition shall be paid at the time of presenting the same and if for any reason the required

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240 court-fee stamp is not available, the amount of the court-fee shall be deposited in Court before presenting the matter for acceptance, and a receipt of the amount so deposited shall be annexed to the memorandum of appeal, cross-objection, application or petition. Details of such payment shall also be made available on the case status section of the High Court website. PROVIDED THAT an appeal, cross-objection, application or petition in which full court-fee is not paid shall be accompanied by an application praying for time to pay the deficit court-fee and such appeal, cross-objection, application or petition shall be accepted by the office only in accordance with the orders of the Registrar on such application for time. 40.12

Difference in Court-fee paid in this Court and in lower Court to be explained by foot-note at the time of presentation of matter.—When the court-fee paid on or the valuation stated in the memorandum of appeal differs from that paid or stated in the lower Court, the difference shall be fully accounted for in a footnote to the memorandum or appeal at the time of the presentation of such memorandum and the party or the Advocate shall also at the same time furnish all information and material necessary to explain the difference.

40.13

Office not to accept matters not in conformity with the rule.— Any matter not complying with the requirements of these Rules shall not be accepted by the office.

40.14

Facts not set out in decree, order or judgment sought to be revised to be supported by an affidavit.—Every fact stated in any application for the exercise of the revisional jurisdiction not set out in the decree or order or judgment sought to be revised shall be supported by an affidavit.

40.15

Letters Patent Appeals under Clause 15 of the Letters Patent.— (a)

Accompaniments to Letters Patent Appeals: A Letters Patent Appeal shall be accompanied by the following: (i)

A typed copy of the memorandum of the Letters Patent Appeal.

(ii)

Two typed copies of the memorandum of the original appeal.

(iii)

If the Letters Patent Appeal is from the decision

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241 on an application, two typed copies of the application.

40.16

40.17

(iv)

If the Letters Patent Appeal is from an appellate decision, two typed copies of the lower Court's judgments.

(v)

Two typed copies of the judgment of this Court where judgment has been delivered.

(b)

Appeal to be placed before Division Bench for admission.—Appeals under clause 15 of the Letters Patent shall be placed for admission before a Division Bench.

(c)

No fresh Vakalatnama where Advocate appeared in original proceeding.—An Advocate who has appeared at the original hearing may file and appear in appeals without filing fresh Vakalatnama. Provisions of Order XLI, Civil Procedure Code and rules regular appeals to apply to Letters Patent Appeals.

(d)

Provisions of Order XLI of the CPC to apply.—Except as otherwise provided in this Chapter, the provisions of Order XLI of the Code of Civil Procedure and the rule herein contained applicable to regular appeals shall apply to Letters Patent Appeals.

Limitation for Revision under Letters Patent, etc.— (a)

Applications for the exercise of the revisional jurisdiction of the High Court under Letters Patent or under any special or local law for which no period of limitation is prescribed by any such special or local law shall be presented within 90 days of the date of the decree or order sought to be revised. The time required for obtaining certified copies of the judgment or decree or order sought to be revised shall be excluded in computing the said period of 90 days.

(b)

Court may condone delay for sufficient cause.—The Court may for sufficient cause excuse delay in the presentation of an application referred to in sub-rule (i) above.

Registrar’s powers to dispense with copies already on record of High Court and in execution appeals.—Notwithstanding anything contained in the foregoing rules of this Chapter the

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242 Registrar may upon request by a party or an Advocate made at the time of presenting the memorandum of appeal, cross-objection, application or petition dispense with the filing of certified copies of judgments, orders or decrees which are required to be filed under these rules, when such copies or the originals thereof are already on the record, of the High Court. The Registrar may similarly dispense with certified copies of decrees under execution in execution appeals, if the party or the Advocate gives in writing that the same will not be necessary for the purposes of the appeal. 40.18

Caveat Rules (Order XL-A of Civil Procedure Code) (a)

Every Caveat under Section 148-A shall be signed by the Caveator or his Advocate and shall be in the form prescribed.

(b)

Every Caveat shall be presented by the party in person or by his Advocate to the Officer authorised to receive the Caveat. Where the Caveator is represented by an Advocate his Vakalatnama shall accompany the Caveat. When an Advocate instructed by a party to act or appear in a matter has not been able to secure a Vakalatnama in the prescribed form duly signed by the client, he may file a note signed by him stating that he has instructions from or on behalf of his client to act or appear in the matter and also undertaking to file within a week a Vakalatnama in the prescribed form duly signed by the party.

(c)

The Caveat presented under these Rules shall be registered in a Caveat Register in the prescribed Form. Before an application for any relief is made to the Court in any proceedings, it shall bear an endorsement from the office of the Court whether a Caveat has or has not been filed.

(d)

A copy of the Caveat shall be served along with the notice required to be served under section 148-A(2) in the manner provided for service in these Rules.

(e)

On receipt of the notice of the Caveat, the applicant or his Advocate shall serve a complete copy of the proceedings on the the Caveator or his Advocate.

(f)

Every application for any relief in a proceeding should be supported by a statement in the body of the application or

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243 attached thereto, stating that no notice under section l48A(2) is received by him or if received whether the applicant has furnished the copies of the application together with the copies of the papers or documents which have been filed or may be filed in support of the application to the Caveator as required by section l48A(4). (g)

A notice under section l48A(3) shalll be served on the Caveator or his Advocate personally in the manner provided in these Rules for service.

(h)

Where it appears to the Court that the object of granting ad interim relief on the application would be defeated by delay, it may record reasons for such opinion and grant ad interim relief on the application of the applicant till further orders, after giving the Caveator an opportunity of being heard.

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244

CHAPTER 41 REFERENCES FROM THE BOMBAY COURT OF SMALL CAUSES AND UNDER SECTTON 113 AND ORDER XLVI OF THE CIVIL PROCEDURE CODE

41.1

Cases to be forwarded to Registrar.—The case shall be signed by the Judge of the Court of Small Causes by whom the reference is made, and shall be forwarded together with other necessary papers to the Registrar, High Court, Appellate Side, Mumbai.

41.2

Number and Title to be entered in Register.—The case shall be numbered and the number of the case and the names of the parties shall be entered in the Register of Civil References.

41.3

Date appointed for hearing to be notified.—The Registrar, as soon as the case is received, shall appoint a day for the hearing thereof, which shall not be sooner than four days from the day of its receipt, and he shall notify the day fixed for the hearing of the case to the Advocates of the parties if they are represented by Advocates or to the Registrar of the Court of Small Causes for communication to the parties if they are not represented by Advocates.

41.4

Copy of Judgment to be sent to Small Causes Court.—The Registrar shall, after disposal of the reference, forward to the Registrar of the Court of Small Causes a certified copy of the judgment or order of the High Court.

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245 PART VII

CHAPTER 42 CRIMINAL BUSINESS

GENERAL 42.1

Rules relating to Civil proceedings to apply mutatis mutandis to criminal proceedings.—The rules applicable to civil proceedings shall, except as otherwise provided in this Chapter, apply mutatis mutandis to criminal proceedings.

42.2

Proceedings to contain statement that no such proceeding had been filed before.—

42.3

(a)

Every appeal or application shall contain a statement that no appeal or application in the same matter has previously been filed. If the appellant or applicant state that an appeal or application has previously been made he shall also state how the said appeal or application has been disposed off and how the present appeal or application is competent.

(b)

If there was a cross-case or counter-case arising out of the same incident or incidents leading to the appeal or application the memo of appeal or application shall mention the number of that case in the trial Court.

Application for bail to be served on Government Pleader.—In every application for grant of bail, the applicant shall state whether or not he was granted bail pending inquiry or trial in the lower Court, and if such bail was granted, he shall set out in full the order granting bail. A copy of the application for grant of ball shall be served upon the Government Pleader in cases arising from the Greater Mumbai area at least 24 hours before the application is heard

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246 by the Court and in cases from the mofussil 48 hours before such hearing. REGISTERS 42.4

Registers for classes of proceedings.— Separate registers for the following classes of cases shall be maintained: (a)

Appeals.

(b)

Revision Applications,

(c)

Confirmation Cases,

(d)

References,

(e)

Miscellaneous Applications, and

(f)

Applications under the Constitution.

(g)

Appeals to the High Court from Judgment or Order passed by the Family Courts under Chapter IX of Criminal Procedure Code, 1973.

42.5

Registration of proceedings.—Immediately on the presentation of any criminal proceeding in this Court by an Advocate, or party in person, or on receipt of the same through jail, or otherwise, it shall be entered in the appropriate register subject to office objections, if any. Entries in the registers shall be made serially according to the date of the presentation or receipt.

42.6

Joint appeal or application by persona affected by same Judgment.— All persons aggrieved by a judgment or an order passed in a criminal case, may join in one appeal or application for revision and one copy of the judgment or order complained of shall be sufficient.

42.7

Examination of proceedings by Office.— Every appeal or application shall be examined by the Office as expeditiously as possible, and the examination shall be completed within six days from the date of filing, except in matters in which the sentence is six months or under, and in which the accused is in custody, when the examination should be completed not

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247 later than the day next after presentation or receipt of the appeal or application. 42.8

Office to notify objections; and their removal by Advocates or appellants.— (a)

When an appeal or an application (other than an appeal or an application from Jail) is incomplete or defective, the Office shall notwithstanding anything, contained in any other rules, affix on a special Notice Board a notice specifying the office objections. An entry of the date of the notification as above shall be made on the presentation form.

(b)

The Advocate or the appellant, or applicant concerned, as the case may be, shall remove all office objections within fourteen days from the date of the notification of the office objections us above, failing which the matter shall, without delay, be placed before the Court for orders.

42.9

Notification of receipt of record.—The receipt of the record of the lower Court shall be notified on the Board immediately.

42.10

Notice where property is returned to person not party to original proceeding.—The notice of appeal or of other proceeding shall also be given to a person in whose favour the Court below has made an order under section 250 or 357 or under section 451 of the Code of Criminal Procedure Provided that no case, in which the sentence awarded is one year or less and the accused is in jail, shall be kept back merely because the complainant or the person in whose favour the order has been passed is not served.

42.11

Procedure if any notice cannot be served.—If the service of any notice cannot be effected within three months from the date of its receipt, the matter shall be placed before the Court with the relevant police report explaining why the notice could not be served. The Court may pass such orders as it deems fit.

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248

CONFIRMATION CASES 42.12

Procedure in regard to preparation of confirmation cases for hearing.— (a)

Immediately on receipt of the reference for confirmation of a Sentence of death, the Office shall issue notice to the District Magistrate where the reference is from the mofussil and to the Public Prosecutor, Greater Mumbai. where the reference is from Greater Mumbai. The Office shall also immediately make a requisition for printing, within three weeks 45 copies of the paper-book including the memo of appeal, if any, by the condemned prisoner. The paper-books shall be printed in the form prescribed for paper-books by the Supreme Court.

(b)

Immediately after the receipt of the printed paperbooks, an order shall be taken from the senior Judge sitting on the Bench hearing criminal appeals for placing the Confirmation Case on Board of hearing.

(c)

Notwithstanding anything contained in these rules, the Confirmation Case together with the Appeal, if any, shall be placed on the top of the Daily Board subject to a part-heard case, if any, as ordered by the senior Judge.

(d)

Two copies of the printed paper-book shall be supplied free of charge to the Government Pleader and one copy thereof shall be supplied free of charge to the Advocate appearing for the condemned prisoner. If the Government Pleader or the Advocate for the condemned prisoner required additional copies, each additional copy shall be paid for at the rate of 25 paise per page and Re.1 per plan or map and the amount payable shall be collected by means of Court-fee stamps affixed to the application for such copies.

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249

APPEALS AND APPLICATIONS 42.13

Accompaniments to appeals and applications.—Every appeal and application shall be accompanied by the certified copy of the judgment or order appealed or applied against, including where an application is against the appellate or revisional order of the Sessions Judge, by the certified copy of the judgment of the trial Court. When the order complained of is that of a Sessions Court having jurisdiction over more than one revenue district, the memorandum of the proceeding shall show the revenue district in which the memorandum of the proceeding shall show the revenue district in which the original proceeding was instituted

42.14

Supply of additional set of copies where proceedings are to be heard by Division or Full Bench.—In an appeal or application other than that received from jail, the appellant or the applicant or his Advocate shall file at the time of the presentation of the appeal or application an additional set of typed copies of the memorandum of appeal, judgment and any other annexures, in all cases where such appeal or application is required to be heard by a Division Court of two Judges. In case of a reference to a Full Bench of three or more Judges, the appellant or applicant shall supply the requisite number of copies for the use of the Full Bench.

42.15

Registrar may dispense with copies of Judgments in subsequent proceedings.—Where any appeal or application for revision preferred before the High Court is accompanied by requisite number of copies the Registrar may dispense with the copies of judgments in any subsequent appeal or application for revision presented by any party against the same judgment.

42.16

Dispensation with printed appeal paper books.—In all cases other than confirmation cases, the provisions of Chapter 40 regarding dispensation of printed appeal paper books shall apply mutatis mutandis.

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250 42.17

Supply of copy of record to Government Pleader and Advocate for accused in certain proceedings.— (a)

In all appeals and proceedings other than confirmation cases, the Government Pleader shall be supplied with one copy of the appeal memo and compilation/copy of record/accompaniments to appeal.

(b)

In all Criminal Appeals arising out of a charge under section 302 of the Indian Penal Code, the Records and Proceedings should be obtained for Admission. Similarly, in all appeals against conviction under section 302 or 307, the weapon or weapons with which the offence is alleged to have been committed should be sent for immediately after such an appeal is admitted

APPEALS AGAINST ACQUITTALS 42.18

Procedure regarding appeals against acquittals by private parties.— (a)

Every application for leave under section 378(3) should be a composite application giving necessary facts and circumstances of the case along with the grounds which may be urged in the appeal with a prayer to entertain the appeal. The appellant shall file along with application two typed copies of the composite application and the Judgment or Judgments of the Court concerned.

(b)

If the leave to appeal is granted, the composite application presented shall be entered in the register of appeals and numbered accordingly. The appellant shall forthwith supply the requisite Court-fee stamps prescribed for the appeal. The Sessions Court shall be required to prepare five paper-books.

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251 42.19

Notices in appeals against acquittals to District Magistrate and Public Prosecutor, and intimation by them whether accused is in jail.—When an appeal against an acquittal is admitted, notice shall be given to the District Magistrate, or in Greater Mumbai, to the Public Prosecutor, who shall be required to inform the High Court whether the accused is in jail, and, if so, in what jail he is confined.

42.20

Free supply of paper-book to accused or his Advocate.—In appeals against acquittals, a copy of the appeal memo together with its accompaniments/record/compilation shall be supplied free of costs to the Advocate for accused or to the accused if he is not represented by an Advocate. Additional copies, if required by such Advocate or accused, shall be charged at the rates specified.

42.21

Accompaniments to jail appeals and applications.— (a)

All appeal and applications received from jail shall be accompanied by a copy of the register of petition duly filed in by the Jail Superintendent and certified copies of the Judgments and orders as prescribed for appeals and revisions under those rules.

(b)

No additional copies for the use of the Court or Division Bench shall be required to be supplied by the appellant or applicant from jail.

(c)

If the memorandum of appeal or petition is not in English, it shall be translated in the Translators Office. Four typed copies of the translations shall be prepared in that Office

Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding. 42.22

Procedure for transfer applications.—An application for transfer of a criminal case shall, as soon as it is presented, be placed before the Court for rule subject to office objections, if

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252 any. The party or his Advocate shall remove all office objections within a week from the date of the said office objections being notified on the Notice Board. If the party or his Advocate fails to remove the said office objections within the said time, the matter shall be placed before the Court which may in its discretion dismiss it for want of prosecution. 42.23

Preparation of Paper-Books, Translations, etc., in the High Court.— (a)

Where paper-books in Criminal Appeals or other criminal proceedings are, or are required to be, prepared in the High Court, the procedure hereinafter indicated shall be followed: (i)

The office shall prepare the requisite number of copies of the paper- book including therein all such papers as are normally included in the paper-books prepared in such matters in the Sessions Court. The translations and the typing work required for this purpose shall be done at the cost of the State:

Provided that such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding. (ii)

The typing shall be done neatly and legibly with double space left between consecutive lines; there shall be a two-inch margin, and every tenth line shall be numbered in the margin. There shall be prefixed to the paperbook an index which shall conform to the requirements given in the High Court Criminal Manual, 1960 in that behalf.

(iii)

The paper-books thus prepared shall be supplied on payment of cost or supplied free

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253 of cost to the parties or the Government Pleader in accordance with the rules herein before appearing, (b)

42.24

Applications for translations in Criminal Cases of documents not required to be included in the paperbooks under the instructions given in the Criminal Manual in that behalf shall not be allowed without the order of the Court and unless such applications are made within a week of the notification of the receipt of the Record and Proceedings and are accompanied by an undertaking to pay as soon as the translations are ready the charges for the same as per the rates prescribed, unless the accused is exempt from the payment of such charges under the provisions of the said rule.

Appointment of Advocate for undefended accused at Government cost.— (a)

An Advocate shall be appointed at the cost of the State by the Deputy Registrar for an accused who is not represented by any Advocate in the following cases: (i)

Confirmation cases;

(ii)

Appeals against acquittals;

(iii)

Proceedings involving a sentence of death;

(iv)

Appeals from jail where a notice for enhancement of sentence has been issued.

(v)

Jail appeals where notice has been ordered to issue by the Court;

(vi)

Applications from jail where a notice of enhancement has been issued;

(vii)

Applications by the State or other proceedings for enhancement of sentence.

(viii)

Criminal Writ Petition challenging the order of detention.

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254 Provided that in proceedings not involving a sentence of death no advocate shall be appointed at the cost of the State to defend the accused when he is not in jail unless the District Magistrate in the mofussil or the Chief Metropolitan Magistrate in Greater Mumbai reports that the accused is not financially in a position to engage an advocate at his own cost or fails to make any report before the proceeding is notified for hearing.

42.25

(b)

Notwithstanding anything contained in the above sub-rule the Court may order that an advocate be appointed in any matter at the cost of the State to defend an undefended accused, if the ends of justice so require.

(c)

The appointment of an advocate under sub-rule (i) above shall be made in good time to enable him to be ready for conducting the case, and as far as possible, on Wednesday preceding the week for which the case is notified for hearing. If the accused afterwards appoints an advocate or counsel of his own choice the advocate appointed by the Deputy Registrar shall be allowed his fee for the case. In such a case the paperbook supplied to the advocate appointed by the Deputy Registrar shall be made available to the advocate or the Counsel appointed by the accused, but not without the payment of charges prescribed under rule 18 above.

Advocate’s fees when Appointed at State cost.— (a)

The fees of the advocate appointed at the cost of the State to defend an accused shall be on such scale as the Government may from time to time prescribe.

(b)

The fees of the advocate appointed at the cost of the State, including as appointment as amicus curiae, shall be as may be periodically prescribed in Schedule XX to these Rules.

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255 42.26

Registrar’s powers to enhance fees.—The Registrar may increase fees payable in a case to the limit as may be prescribed having regard to the complicated nature, heavy labour and time involved in the case.

PRODUCTION IN COURT OF ACCUSED IN JAIL CUSTODY 42.27

Production of accused in jail at the hearing if he so desires.—If an accused who is in jail desires to remain present in Court at the time his case is heard, the Deputy Registrar should obtain from the Court an order under the Prisoner’s (Attendance in Court) Act, 1955, to the officer in charge of the jail for the production of the accused at the hearing of the case in the following cases:— (a)

Appeals against acquittals;

(b)

Cases in which notice of enhancement of sentence has been issued;

(c)

Revision application under section 397 of the Criminal Procedure Code;

(d)

Cases where the Court considers the presence of the accused desirable or necessary.

PAYMENT OF ROAD AND DIET MONEY, ETC. TO ACCUSED AND WITNESSES 42.28

Payment of expenses to accused acquitted or discharged.—The Registrar may give to any person produced in custody before the Court and acquitted and discharged or set at liberty by this Court, the money for his railway fare or bus fare and daily expenses, from the grant under the head “Road and Diet Charges” Provided (i)

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256 as may be periodically prescribed for the number of days which in the opinion of the Registrar will necessarily be occupied in such journey;

42.29

(ii)

that the amount of Railway fare or Bus fare shall be of the lowest class.

(iii)

The Registrar may delegate the powers under this rule to the Deputy Registrar.

Travelling and daily allowances to witnesses.—Any person summoned as a witness in any case in the High Court shall be paid Travelling and Daily Allowance on the same scale as is prescribed in the rules in the Criminal Manual.

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257

CHAPTER 43 RULES UNDER SECTION 477(l)(d) READ WITH SECTION 96 OF THE CODE OF CRIMINAL PROCEDURE, 1973

43.1

How applications under section 96, Code of Criminal Procedure to be made.—Every application to the High Court under sub- section (1) of section 96 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the said Code”) to set aside the declaration of forfeiture in respect of any newspaper, book or other document made under section 95 of the Code, shall be made by the presentation of a petition which shall be signed by the applicant and verified at the foot by an affidavit of the applicant.

43.2

How petition to be written.—The petition shall be written in the English language on foolscap paper or other paper similar to it in size quality, book-wise, and divided into paragraphs number consecutively. All dates and sums occurring in the petition shall be expressed in figures.

43.3

How petition to be headed and instituted.—The petition shall be headed “In the High Court of Judicature at Bombay, Appellate Jurisdiction “and shall be instituted. “In the matter of the (Name or description) newspaper, book or other document”, as the case may be.

43.4

What petition should state and what exhibits should be annexed to it.—The petition shall state what the interest of the applicant is in the property in respect of which the declaration of forfeiture has been made and all documents and copies thereof in proof of such interest together with the copy of the declaration of forfeiture under section 95 of the Code shall be annexed as exhibits to the petition.

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258 43.5

What petition should also state.—The petition shall state the grounds on which it is sought to set aside the declaration of forfeiture.

43.6

What documents are to be translated into English and by whom.—All documents in the regional language annexed to the petition as exhibits and all documents in the regional language relied upon by the applicant and intended to be in evidence, shall be translated into English by an Official Translator or Translators, so that no question may arise as to the accuracy of the translation or the admissibility in evidence of the documents and the translations annexed to them by reason of any defects in the translations thereof. PROVIDED THAT such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding.

43.7

Petition should be presented to the Chief Justice.—The petition with exhibits annexed thereto and the translations thereof, if any, together with a copy of such petition and exhibits with the translations shall be presented to the Chief Justice, who will constitute a Special Bench and appoint a day for the hearing and determination of the application. PROVIDED THAT such translations would not be necessary if the documents are in Marathi and if the party or the Advocate undertakes that English translations would be supplied whenever an order in that respect is made by the Court in a particular proceeding.

43.8

Notice of hearing.—A notice in writing of the day appointed for the hearing and determination of the application shall be given by the Registrar to the Secretary to the Government of Maharashtra in the Home Department, and the copy of the petition and exhibits with translations, if any, mentioned in rule 7, shall accompany such notice.

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259 43.9

How printed paper-books to be prepared.—Printed paperbooks containing the petition and all exhibits annexed thereto with the translations thereof shall be prepared in the manner prescribed by the rules for the preparation of paperbooks, in appeals from the High Court, and shall be delivered to the Registrar, by the applicant, at least one week before the day fixed for the hearing and determination of the application.

43.10

Number of paper-books to be printed.—There shall ordinarily be printed 15 copies of the paper-books; but the Registrar may, when necessary, direct a larger number of copies to be printed.

43.11

How costs of petition to be taxed.—The table of fees now in force in the High Court in its Original Civil Jurisdiction shall be applicable to the applications under sub-section (1) of section 96 of the Code and proceedings thereon and costs payable in respect of such applications and proceedings shall be taxed when so directed on that scale.

43.12

What provision and rules are applicable to execution orders on applications.—The provisions of the Code and the rules and forms of the High Court relating to execution of decrees and orders, shall be applicable to the execution of orders passed by the High Court on applications under subsection (1) of section 96 of the Code.

BOMBAY HIGH COURT

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REVISED CONSOLIDATED RULES

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DECEMBER

2011

260

CHAPTER 44 BAIL APPLICATIONS

44.1

Bail application to whom to be made.—Applications for bail in respect of persons to be tried by the High Court shall be made to the Judge appointed to try the case but in the absence of such Judge, such applications may be made to the Judge in Chambers.

44.2

Application for bail of prisoner committed to Sessions.— When a person it to be tried by the High Court, application may be made on his behalf hat he may be bailed on giving 48 hours’ written notice to the Public Prosecutor. Such notice shall contain the names, residence and description of the persons whom he proposes as his sureties. The application shall be supported by an affidavit stating when, by whom, for what offence and under what circumstances the prisoner was committed and where he is detained in custody and the grounds for the application. A copy of such affidavit shall be served upon the Public Prosecutor with the said notice. The Public Prosecutor may file affidavits in opposition to the application and may appear to oppose the making of an order that the prisoner be admitted to bail.

44.3

Clerk of the State to write to Magistrate to produce depositions.—On the hearing of such application the Court may direct the Clerk of the State to write a letter directing the Magistrate by whom such prisoner has been committed to produce the depositions taken before him in the case, unless such depositions shall have previously been forwarded to the office of the Clerk of the State.

BOMBAY HIGH COURT

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REVISED CONSOLIDATED RULES

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DECEMBER

2011

261 44.4

On Public Prosecutor consenting, order on shorter notice.—The application mentioned in rule 980 may be made on any shorter notice than 48 hours if the Public Prosecutor consents thereto or waives his right to 48 hours notice, but in every case the written notice and affidavit mentioned in the said rule must be served on the Public Prosecutor before the application is made.

44.5

Amount of bail and number of sureties.—If the order be that the prisoner shall be released on bail, the Court shall direct to what amount such bail shall be taken and with how many sureties, and unless the Court approves of the names proposed as bail or shall otherwise direct, the Clerk of the State or his Deputy in his absence shall after examination, approve the same if he is satisfied of their sufficiency.

44.6

Prisoner may be released on entering recognizances.— Unless the Court shall otherwise order the recognizances of the sureties and of the prisoners shall be entered into before the Clerk of the State or his Deputy in his absence, and the Clerk of the State or his Deputy is authorised to direct by letter the Jailor, in whose custody the prisoner is, to bring up the prisoner before the Clerk of the State or his Deputy to enter into his recognizances, and on the prisoner being so brought up, the Clerk of the State or his Deputy may, on recognizances being entered into according to the Judge’s order, direct that the prisoner shall be released.

BOMBAY HIGH COURT

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REVISED CONSOLIDATED RULES

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DECEMBER

2011