Untitled Document

ACT NO. V OF 1908
[21st March 1908]

An Act to consolidate and amend the laws relating to the Procedure of the Courts of Civil Judicature.

WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows: -

PRELIMINARY

1.-(l) This Act may be cited as the Code of Civil Procedure, 1908.

(2) It shall come into force on the first day of January 1909.
1[(3) It extends to the whole of Pakistan.]

2. In this Act, unless there is anything repugnant in the subject or context,-

(1) "Code" includes rules:
(2) "decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties which regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint 2[the determination of any question within section 144 and an order under rule 60, 98, 99, 101, or 103 of Order XXI] but shall not include;

(a) any adjudication form which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.

Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely dispose of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

(3) "Decree-holder" means any person in whose favour a decree has been passed or an order capable of execution has been made:

(4) "District" means the local limits of the jurisdiction of a principal civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court:

(5) "Foreign Court" means a Court situate beyond the limits of 1[Pakistan] which has no authority in 1[Pakistan] and is not established or continued by 2[the Central Government 3***]:

(6) "Foreign judgment" means the judgment of a foreign Court:

(7) "Government Pleader" Includes any officer appointed by the 4(Provincial Government] to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader :

(8) "Judge" means the presiding officer of a civil Court:

(9) "Judgment" means the statement given by the Judge of the grounds of a decree or order:

(10) "Judgment-debtor" means any person against whom a decree has been passed or an order capable of execution has been made:

(11) "Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued:

(12) "Mesne profits" of property means those profits which the person in wrongful profession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession:

(13) "Movable property" includes growing crops:

(14) "Order" means the formal expression of any decision of a civil Court which is not a decree:

(15) "Pleader" means any person entitled to appear and plead for another in Court, and includes an advocate, a civil and an attorney of a High Court:

(16) "Prescribed" means prescribed by rules:

(17) "Public officer" means a person falling under any of the following descriptions, namely:

(a) every Judge;

(b) [every person in the service of Pakistan].1

(c) every commissioned or gazetted officer in the military, 2[naval or airy] forces of 3[Pakistan while in the service of the State];

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, - or to preserve order, in the Court, and every person especially authorized by a Court of Justice to perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of 4[the 5[Government] ] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of 4[the 5[Government]], or to make any survey, assessment or contract on behalf of '[the 2(Government] 1. or to execute any revenue-process, or to investigate, or to report on, any matter affecting the pecuniary interests of 1[the 2[Government], or to make, authenticate or keep any document relating to the pecuniary interests of 1[the [Government] ] or to prevent the infraction of any law for the protection of the pecuniary interest of 1[the 2[Government] ]; and

(h) every officer in the service or pay of 1[the 2[Government]], or remunerated by fees or commission for the performance of any public duty:

(18) "Rules" means rules and forms contained in the First Schedule or made under section 122 or section 125.

(19) "Share in a corporation" shall be deemed to include stock, debenture-stock, debentures or bonds; and

(20) "Signed", save in the case of a judgment or decree, includes stamped.

3. For the purposes of this Code, the District Court is subordinate to the High Court, and every civil Court of' a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.

4.-(l) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition contained in subsection (1), nothing in this Code shall be deemed to limit or otherwise

affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.

5.-(1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the 3[Provincial Government]4 * * * may, by notification in the 5(official Gazette], declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the 3[Provincial Government]*** may prescribe.

(2) "Revenue Court" in subsection (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

6. Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

7. The following provisions shall not extend to Courts cons- Provincial Small Cause Courts Act, 1887, 1*** or to Courts exercising the jurisdiction of a Court of Small Causes Courts 3[under the said Act], that is to say,-

(a) So much of the body of the Code as relates to-

(i) Suits excepted from the cognizance of a Court of Small Causes;

(ii) The execution of decrees in such suits;

(iii) The execution of decrees against immovable property; and

(b) The following sections, that is to say,-
sections 9,
sections 91 and 92.
sections 94 and 95 3[far as they authorize or relate to-'

(i) orders for the attachment of immovable property,
(ii) injunctions.
(iii) the appointment of a receiver of immovable property, or
(iv) the interlocutory orders referred to Li clause (e) of
section 94] and
sections 96 to 112 and 115.
8.-Omitted by the 4.0, 1949.

[1908: ACT V]
Civil Procedure
(Part I.- Suits in General. Jurisdiction of the Courts and Res judicata)

PART I

SUITS IN GENERAL

JURISDICTION OF THL3 COURTS AND Res Judicata

9. The Courts shall (subject to the provisions herein cone tamed) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation.- A suit is which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right ma depend entirely on the decision of questions as to religious rites or ceremonies.

10. No Court shall proceed With the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 1[Pakistan] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[Pakistan] established or continued by 2[the Central Government 3***] and having like jurisdiction, or before 4[the Supreme Court].

Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in 1[Pakistan] from trying a suit founded on the same cause of action.

11. No Court shall try suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.- The expression "former suit" shall denote a Suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as $0 a right of appeal from the decision of such Court.

Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly, or impliedly by the other.

Explanation 1V.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue -in such suit.

Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating.

12. 1[(1)] Where a plaintiff is preclude by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

1[(2) Where a person challenges the validity of a judgment, decree or order on the pica of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.]

13. A foreign judgment shall be conclusive as to any matter When thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except;

(a) Where it has not been pronounced by a Court of competent jurisdiction;
(b) Where LI has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of 2[Pakistan] in cases in which such law is applicable;
(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) Where it has been obtained by fraud;
(f) Where it sustains a claim founded on a breach of any law in force in 2[Pakistan).

14. The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

15. Every suit shall be instituted in the Court of the lowest grade competent to try it.

16. Subject to the pecuniary or other limitations prescribed by any law, suits;

(a) for the recovery of immovable property- with or without rent or profits;
(b) for the partition of Immovable property;
(c) for foreclosure, sale or redemption In the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or Interest in immovable property;
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment;
shall be instituted in the Court within the local limits of whose jurisdiction the property is situated '[, or, in the case of suits referred to in- clause (c), at, at the place where the cause of action his wholly or partly arisen: -

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate 1[or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen) or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Explanation.- In this section "property" means property situate in 2[Pakistan].

17. Where a suit is to obtain relief respecting, or compensation for wrong to immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate: -

Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court.

18.-(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon 1iroceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the-local limits of its jurisdiction:

Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under subs section (1), and an objection is taken before an appellate or revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the appellate or revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been consequent failure of justice.

19. Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted -at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in '[Karachi], beats B in 1[Quetta]. B may sue A either in I[Quetta or 1[Karachi].

(b) A, residing in [Karachi] published in [Quetta] statements defamatory of B. B may sue A either in [Quetta] or in [Karachi].

20. Subject to the limitations aforesaid, every suit shall be in a Court within the local limits of whose jurisdiction.

(a) the defendant-, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either of the Court is given, or the defendants who reside, or carry on business, or personally work as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.
Explanation I.- Where a person has- a one place and also a temporary residence shall be deemed to reside at both places in action arising at the place where he residence.

Explanation II.-A corporation shall be deemed to carry on business at its sole or principal office in '[Pakistan] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Illustrations

(a) A is a tradesman in [Lahore]. B carries on business in [Karachi]. B, by his agent in [Lahore], buys goods of A and requests A to deliver them to the [Pakistan International Airways]. A delivers the goods accordingly in [Lahore]. A may sue B for the price of the goods either in [Lahore] where the cause of action has arisen or in [Karachi] where B carries on business.

(b) A resides at [Murree], B at [Lahore], and C at [Karachi]. A, B and C being together at [Bahawalpur] B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at [Bhawalpur], where the cause of action arose. He may also sue them at [Lahore], where B resides, or at [Karachi], where C resides: but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.

21. No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.

22. Where a suit may be instituted in any one.- of two or more Courts and is instituted in one of such Courts, any defendant after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (ii any), shall determine in which of the several Courts having jurisdiction be suit shall proceed.

23. (1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such Courts arc subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

24.-..(l) On the application of any of the parties and after notice to the parties and after hearing such of be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or subordinate to it and competent same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under subsection (1) the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of' this section, and Assistant Judges shall be deemed to District Court.

(4) The court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of' such suit, be deemed to be a Court of Small Causes,

124-A.-(1) Where any suit is transferred udder section 22, or any suit, appeal or other proceeding is transferred or withdrawn under subsection (1) of section 24 on the application of a party, the Court ordering the transfer or withdrawal shall fix a date for the appearance of the parties before itself, if the., suit, appeal or other proceeding is to be tried or disposed of by itself, or before the Court to which the case is so transferred.

(2) Where any suit, appeal or other proceeding is transferred from one Court to another, otherwise than on the' application of a party, the parties thereto shall appear before the Court from which the suit, appeal or other proceeding is to be transferred, on the day already fixed for their appearance before that Court, and such Court shall then communicate the order of transfer to such parties and direct them to appear before the Court to which the suit, appeal or other proceeding is to be transferred, either on the same day, or on such earliest day as may be reasonable having regard to the distance at which the other Court is located.]"

25. 1* * * * * *

INSTITUTION OF SUITS

26. Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

SUMMONS AND DISCOVERY

27. Where a suit has been duly instituted, a summons may defendants, be issued to the defendant to appear and answer the claim and may be served in manner prescribed.

28.-(1) A summons may be sent for service in another summons. Province to such Court and in such manner as may be prescribed by rules in force in that Province.

(2) The Court to which summons is sent shall, upon another receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.

29. Summonses 2[and other processes] issued by any Civil or

Revenue Court situates 1[outside] 2[Pakistan] may be sent to the Courts 3[in] 4[Pakistan] and served as if they 5[were summonses] issued by such Courts:

6[Provided that the Courts issuing such summonses [or processes] have been established or continued by the authority of the Central Government or that the Provincial Government [of the Province in which such summonses or processes are] to be served has by notification in the official Gazette declared the provisions of this section to apply to 10[such Courts.]

30. Subject to such conditions and limitations as may be prescribed, the Court may, at any. time, either of its own motion or on the application of any party: -

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

31. The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects.

32. The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may-

(a) issue a warrant for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him not exceeding [two thousand] rupees;
(d) order him to furnish security for his appearance and in default commit him to […..] prison.

JUDGMENT AND DECREE

33. The Court. after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.

INTEREST

34.-(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.

3[34.A,-(l') Where the Court is of opinion that a suit was instituted with intent to avoid the payment of any public dues payable by the plaintiff or on his behalf, the Court may, while dismissing such suit, make an order for payment of interest on' such public dues at the rate, of two per cent. above the prevailing bank rate.

(2) Where the Court is of opinion that the recovery of any public dues from the plaintiff was unjustified, the Court may, while disposing of the suit, make an order for payment of interest on the amount recovered at the rate of two per cent., about the prevailing bank rate.

Explanation- In this section-

(a) "bank rate" means the bank rate determined and made public under the provisions of the State Bank of Pakistan Act, 1956 (XXXIII of 1956); and

(b) "public dues" includes the dues of any bank owned by the Federal Government or of any corporation or undertaking owned or controlled by the Federal Government or a Provincial Government or of any local authority.]

[34.B. Where and in so far as a decree is for payment of money due to a banking company in repayment of a loan advanced by it, the Court shall, in the decree, provide for interest or return, as the case may be, on the judgment debt from the date of decree till payment-

(a) In the case of interest-bearing loans, for interest at the contracted rate or at the rate of two percent above the bank rate, whichever is the higher;

(b) In the case of loans given on the basis of markup in price, lease, hire-purchase or service charges, for the contracted rate of mark-up, rental, hire or service charges, as the case may be, or at the latest rate of the banking company for similar loans, whichever is the higher; and

(c) in the case of loans given on the basis of participation in profit and loss, for return at such rate, not being less than the annual rate of profit for the preceding six months paid by the banking company on term deposits of six months, accepted by it on the basis of participation in profit and loss, as the Court may consider just and reasonable in the circumstances of the case, keeping in view the profit-sharing agreement entered into between the banking company and the judgment-debtor when the loan was contracted.

Explanation.-(1) In this section in clause (a), "bank rate" has the same meaning as in section 34-A].

COSTS

35.-(l) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of an incident to all suits shall be in the discretion of the Court, and the Courts shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.

(3) The Courts may give interest on costs at any rate not exceeding six percent per annum, and such interest shall be added to the Costs and shall be recoverable as such.

[35-A.-(l) If in any suit or other proceeding 2[including an execution proceeding)], not being an appeal, any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the. Court, if the objection has been taken at the earliest opportunity and if it is satisfied of the justice thereof, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation.

(2) No Court shall make any such order for the payment of an amount exceeding 3[twenty five thousand] rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less;

Provided that where the pecuniary limits of the jurisdiction of any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, and not being a Court constituted under that Act are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:

Provided further, that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this section.

(3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.

(4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.]

--------------------

PART II

EXECUTION

GENERAL

36. The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.

37. The expression "Court which passed a decree" or words to that effect, shall, in relation to the execution of decrees unless there is anything repugnant in the subject or context, be deemed to include, -

(a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the first instance, and

(b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

38. A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

39.-(l) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court;

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the Local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it; or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion it for execution to any subordinate Court of competent Transfer of decree to Court in another Province. Result of execution proceedings to be certified.

40. Where a decree is sent for execution in another Province, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that Province.

41. The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.

42.-1[(1)] The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed Court in by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner ac if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

(2) Without prejudice to the generality of the foregoing provision, the Court executing a decree sent to it shall have the following powers, namely:-

(a) power under section 39 to transfer the decree to another Court, if necessary;
(b) power under subsection (1) of section 50 to permit execution to proceed against the legal representatives of a deceased judgment-debtor;
(c) power under section 152 to correct clerical or arithmetical errors;
(d) power under rule 16 of Order XXI to recognize the assignment of a decree;
(e) power under sub-rule (2) of rule 50 of Order XXI to grant leave to a decree-holder to proceed against a person not already recognized as a partner in a firm in an execution proceeding against the firm;
(f) power under clause (b) of sub-rule (1) of rule 53 of Order XXI to give notice of attachment of decree passed by another Court.]

43. Any decree passed by a civil Court established in any 2[area] in 3[Pakistan] to which the provisions relating to execution do not extend [……………..] may, lilt cannot he executed within the jurisdiction of the Court by which it was passed, be executed in manner herein provided within the jurisdiction of any Court in 5[Pakistan].

44.-[Omitted by Ordinance (27 of 1981), Second Sched., item 46(5)].

5(44.A.-(1) Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in a District Court, the decree may be executed in 3[Pakistan] as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proo1 of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

Explanation 1.-"Superior Court" with' reference to the United Kingdom, means the High Court in England, the Court of Session in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County Palatine of Lancaster and the Court of Chancery of the County Palatine of Durham.

Explanation 2.-'4Reciprocating territory" means 1[the United Kingdom and such other country or territory as] the 3[Central Government) may, from time to time, by notification in the 3[official Gazette], declare [to be reciprocating territory for the purposes of this section; and "superior Courts", with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 3.-."Decree", with reference to a superior Court, means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, and

(a) With reference to superior Courts in the United Kingdom, includes judgments given and decrees made in any Court in appeals against , such decrees or judgments, but

(b) In no case includes an arbitration award, even if such award is enforceable as a decree or judgment.]

45. Execution of decrees in foreign territory.-[Omitted by Ordinance (27 of 1981), Second Sched., item 46(5) ].

46.-(l) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.

QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE

47.-(l) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.

(3) Where a question arises as to whether any person is or is representative of a party, such question shall, for the purpose of this section, be determined by the Court.

Explanation.- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit.

LIMIT OF TIME FOR EXECUTION

148....(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of [six] years from.

(a) the date of the decree sought to be executed, or
(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed-

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of '[six] years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within [six] years immediately before the date of the application;

(b) to limit or otherwise affect the operation of article 2[83 of the First Schedule to the Limitation Act, 1908].

TRANSFER FEES AND LEGAL REPRESENTATIVES:

49. Every transferee of a decree shall bold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-bolder.

50.-(l) Where a judgment-debtor dies before the decree has been fully satisfied;
the holder of the decree may apply to the Court which passed it to execute the same
against the legal Representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duty disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree holder, compel such legal Representative to produce such accounts as it thinks fit.

PROCEDURE IN EXECUTION

51.-Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder order execution of the decree-

(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property ;
(c) by arrest and detention in prison;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require.

[Provided that 2[***] execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied:-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-.

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court; or

(ii) has, after the institution of the decree was passed, dishonestly transferred, concealed, or removed any part committed any other act of to his property ; or

(b) that the judgment-debtor has, or has had date of the decree, the means to pay the decree or some substantial part thereof or neglects or has refused or neglected same ; or

Explanation - In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which by or under any law or custom having the force of 1~w for the time being in force, is exempt from attachment in execution of the decree].

52.-(l) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where no such property remains In the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if they decree had been against him personally.

53. For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt, of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

A
54. Where the decree is for the partition of an undivided estate assessed to the payment of revenue to '[the '[Government]) or for the separate possession of a share of such as estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.

ARREST AND DETENTION

55.--(l) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court 3[which may make an order for his detention in prison to suffer simple imprisonment for a period not exceeding one year;]

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling house shall be entered after sunset and before sunrise;

Provided, secondly, that no outer-door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way present access thereto, but when the officer authorized to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which be has reason to believe the judgment-debtor is to be found;

Provided, thirdly, that if the room ii in the actual occupancy of a woman who is not the Judgement debtor and who according to the customs of the country does not appear in public, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest;

Provided fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of

and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him;

(2) The l[Provincial Government] may by notification in the 2[official Gazette], declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the [Provincial Government] in this behalf.

3[(3) A judgment-debtor detained in prison under sub section (1) shall not, merely by reason of undergoing such imprisonment, be discharged from his liability under the decree, but he shall not be liable to be re-arrested under the decree in execution of which he was so detained in prison.]

56. Notwithstanding anything in this Part, the Court the arrest or detention in the 4[* *] prison execution of a decree for the payment of money.

57. [* * * * * * *]

58. Every person detained in prison in execution of decree shall be released from such detention, before the expiry of the period of detention, if-

(a) the amount mentioned in the warrant for his detention is paid to the officer in charge of the prison; or
(b) the decree against him is otherwise fully satisfied; or
(c) the person on whose application he has been detained so requests;

Provided that he shall not be released from such detention without the order of the Court.]

59. [* * * * * * * *]

60. (1) The following property is liable to attachment and sale in execution of a decree, namely, lands houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all 4other saleable property, movable or immovable, belonging to the judgment-debtor, or over which or the profits of which. be has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust of him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale, namely:-

(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as. in accordance with religious usage, cannot be parted with any woman;

(b) tools of artisans arid, where the judgment-debtor is art agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce, or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;

(c) houses and other buildings (with the materials ahd the sizes thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and cccupied by him;

(d) books of accounts;

(e) a mere right to sue for damages ;

(f) any right of personal service ;

(g) stipends and gratuities allowed to 2[pensioners of the 3[Government], or payable out of any service family and the costs of the arrest to the officer arresting him, such office shall at once release him.

(h) the wages of labourers and domestic servants, whether payable in money or
in kind;

(l) Salary to the extent of the first hundred rupees and one half the remainder;

Provided that where such salary is the salary of a 6[servant of the State] or a servant of a railway 7* * * or local authority and the whole or any part of the portion of such salary liable to attachment has been under attachment, whether continuously or intermittently for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months and, where such attachment has been made in execution of one and the same decree, shall be finally exempt from attachment in execution of that decree ;]

(j) the pay and allowances of persons to whom the 8[Pakistan Army Act, 1952],
9* * *applies]. [or of persons other than commissioned officers to whom the 1[Pakistan Navy Ordinance, 1961 (XXXV of 1961) applies];

(k) all compulsory deposits and other sums in or derived from any fund to which the
Provident Funds Act [1925], for the time being applies in so far as they are declared by the said Act not to be liable to attachment;

(l) any allowance forming part of the emoluments of any [servant of the State] or of any servant of a railway 4 * * * or local authority which the [appropriate Government] may by notification in the [official Gazette] declare to be exempt from attachment, and any subsistence grant or allowance made to 7[any such servant] while under suspension; (in) an expectancy of succession by survivorship or other, merely contingent or possible right or interest;

(n) A right to future maintenance;

(o) Any allowance declared by [any Pakistan law] to be exempt from liability to
attachment or sale in execution of a decree; and

(p) Where the judgment debtor is a person liable for the pays merit of land revenue,
any movable property which, under any law for the time being applicable to him,
is exempt from sale for the recovery of an arrear of such revenue.

[Explanation 1] The particulars mentioned in clauses (g), (h), (i), (j), (l) and (o) are exempt from attachment or sale whether before or after they are actually payable, [and in the case of salary other than salary of a [servant of the State] or a servant of a railway 1 *** or local authority the attachable portion thereof is exempt from attachment until it is actually payable].

2[Explanation 2.-In clauses (h) and (1), "salary" means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1), derived by a person from his employment whether on duty or on leave.]

3[Explanation 3 -.40 clause (I) "appropriate Government" means-

(i) As respects any 4[person] in the service of the Government, or any servant [of railway or] cantonment authority or the port authority of a port, the Central Government:

(iii) As respects any other 7[servant of the State] or a servant of any local authority, the Provincial Government].

(2) Nothing in this section shall be deemed-.
to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land,

61. The [Provincial Government] * * may. by general or special order published in the 2fofficial Gazette], declare that such portion of agricultural produce, or of any class of agriculture produce, as may appear to the 10[Provincial Government] to be for the purpose of providing until the next harvest for the due cultivation of the land and for the support judgment-debtor and his family, shall, in the case of all turists or of any class of agriculturist be exempted from to attachment or sale in execution of a decree.

62. (1) No person executing any process under this directing or authorizing seizure
of movable property shall any dw1diling.house after sunset and before sunrise.

(2) No outer-door of a dwelling-house shall be broken open unl~ss such dwelling-house is in the occupancy of the judgment. debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.

(3) Where a room in a dwelling-house is in the actual occuo pancy of a woman who, according to the customs of the country does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw ; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose, of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.

63.-41) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

64. Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

Explanation: For the purposes of this section, claims enforce under an attachment include claims for the rateable distribution of assets.

65. Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.

66. (l) No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.

(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner,

67.--{l) The 2[Provincial Government] may by notification in the 4fothcial Gazette], make rules for any local area imposing conditions in respect of the sale of any class of interest in land in executing of decrees for the payment of money, where such interests are so uncertain or undetermined as in the opinion of the 2[Provincial Government], to make it impossible to fix their value.

[(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of land in execution of decrees were in force therein, the 2[Provincial Government] may, by notification in the 4[official Gazette] declare such rules to be in force, or may, by a like notification, modify the same.

Every notification issued in the exercise of the powers conferred by this subsection shall set out the rules so continued or modified]

DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES
AGAINST IMMOVABLE PROPERTY

68. The 2[Provincial Government] may declare by notification in the 4[official Gazette] that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in immovable property, shall be transferred to the Collector.

69. The provisions set forth in the Third Schedule shall apply to all cases in which the execution of a decree has been transferred under the last preceding section.

70. (l) The 2[Provincial Government] may make rules consistent with the aforesaid provisions-

(a) for the transmission of the decree from the Court to the Collector, and for regulating the procedure of the Collector and his subordinates in executing the same, and for re-transmitting the decree from the Collector to the Court;

(d) By appointing a receiver; or

(e) In such other manner as the nature of the relief granted may require.

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-.

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court; or

(ii) has, after the institution of the decree was passed, dishonestly transferred, concealed, or removed any part committed any other act of to his property ; or

(b) that the judgment-debtor has, or has had date of the decree, the means to pay the decree or some substantial part thereof or neglects or has refused or neglected same ; or

ARREST AND DETENTION

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling house shall be entered after sunset and before sunrise;

Provided fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him;

61. Notwithstanding anything in this Part, the Court the arrest or detention in the 4[* *] prison execution of a decree for the payment of money.

62. [* * * * * * *]

63. Every person detained in prison in execution of decree shall be released from such detention, before the expiry of the period of detention, if-

Provided that he shall not be released from such detention without the order of the Court.]

64. [* * * * * * * *]

65. (1) The following property is liable to attachment and sale in execution of a decree, namely, lands houses or other buildings, goods, money, bank-notes, cheques, bills

of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all 4other saleable property, movable or immovable, belonging to the judgment-debtor, or over which or the profits of which. be has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust of him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale, namely:-

(d) books of accounts;

(e) a mere right to sue for damages ;

(f) any right of personal service ;

(i) the wages of labourers and domestic servants, whether payable in money or
in kind;

(l) Salary to the extent of the first hundred rupees and one half the remainder;

(k) the pay and allowances of persons to whom the 8[Pakistan Army Act, 1952],
9* * *applies]. [or of persons other than commissioned officers to whom the 1[Pakistan Navy Ordinance, 1961 (XXXV of 1961) applies];

(n) A right to future maintenance;

(o) Any allowance declared by [any Pakistan law] to be exempt from liability to
attachment or sale in execution of a decree; and

3[Explanation 3 -.40 clause (I) "appropriate Government" means-

(i) As respects any 4[person] in the service of the Government, or any servant [of railway or] cantonment authority or the port authority of a port, the Central Government:

(iii) As respects any other 7[servant of the State] or a servant of any local authority, the Provincial Government].

62. (1) No person executing any process under this directing or authorizing seizure
of movable property shall any dw1diling.house after sunset and before sunrise.

(2) No outer-door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment. debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.

(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw ; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose, of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.
63.-41) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

Explanation: For the purposes of this section, claims enforce under an attachment include claims for the rateable distribution of assets.

[(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of land in execution of decrees were in force therein, the 2[Provincial Government] may, by notification in the 4[official Gazette] declare such rules to be in force, or may, by a like notification, modify the same.

Every notification issued in the exercise of the powers conferred by this subsection shall set out the rules so continued or modified]

DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES
AGAINST IMMOVABLE PROPERTY

71. The 2[Provincial Government] may declare by notification in the 4[official Gazette] that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in immovable property, shall be transferred to the Collector.

(3) Nothing in this section affects any right of [the 2[Government].

RESISTANCE TO EXECUTION

[74.-(l) Where the Court is satisfied that the holder of a decree for the possession of property or a purchaser of property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or any other person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree holder or the purchaser, order the judgment-debtor or such other person to undergo simple imprisonment for a term which may extend to thirty days and may further direct that the decree-holder or the purchaser be put into possession of the property.

(2) Notwithstanding anything contained in subsection (1), where a judgment-debtor or my other person resists or obstructs the execution of a decree, the Court may direct the officer in charge of the police-station within whose jurisdiction the judgment-debtor or such other person resides or where the property to which the decree relates is situate to provide, the necessary police assistance for the execution of the decree.]

INCIDENTAL PROCEEDINGS
COMMISSIONS

75.Subjóctto such conditions .and limitations as may. be prescribed the Court may issue a commission-..

(a)to examine any person ;
(b)to make a local investigation;
(c)to examine or adjust accounts; or
(d)to make a partition.

76. (1) A commission for the examination of any person Commiss1on~ may be issued to any Court (not being a High Court) situate in a Province other than Province in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.

(2)Every Court receiving a commission for the examination of any person under subsection (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission has otherwise directed in which case the commission shall be returned in terms of such order.

77. In lieu of issuing a commission the Court may issue a Letter of~ letter of request to examine a witness residing at any place not request within [Pakistan].

78.2[Subject to such conditions and limitations as may be prescribed], the provisions as to the execution and return of come by foreign missions for the examination of witnesses shall apply to commission issued by [or at the instance of]

(a)Courts situate beyond the limits of 2[Pakistan and established] or continued by the authority of 3* * * 4[the
Central Government5 * * *], or

(b) * * *

[(c) Courts of any State or country outside Pakistan.]

PART IV
SUITS IN PARTICULAR CASES

SUITS BY OR AGAINST [THE GOVERNEMNT] OR PUBLIC OFFICERS
IN THEIR OFFICIAL CAPACITY

79. * * * In a suit by or against the 2Government) the authority to be named as plaintiff or defendants as the case may be, shall be-

(a) in the case of a suit by or against the Central Government, Pakistan];

(b) in the case of a suit by or against a Provincial Government, the Province; and

80.-(l) A suit may be instituted against the Government or against a public officer, In respect of any act purporting to be done by such public officer in his official capacity, after the expiration of two months next after notice in writing has been delivered to or left at the office of-

(a) in the case of a suit against the Central Government, a Secretary to that Government;

(b) (I) In the case of a suit against the Provincial Government other than a suit relating to the affairs of a Railway, a Secretary to that Government or the. Collector of the District; and

(ii) In the case of a suit against the 8[Federal Government] relating to the affairs of a Railway, the General Manager of the Railway concerned, and in the case of a public officer, delivered to him or left at his office stating the cause of' action, the name, description of place of residence of the plaintiff and the relief which he claims ; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) Where any such suit is instituted without delivering or leaving such notice as aforesaid or before the expiration of the said period of two months or where the plaint does not contain a statement that such notice has been so delivered or left, the plaintiff shill not be entitled to any costs if settlement as regards the subject-matter of the suit is reached or the Government or the public officer concedes the plaintiff's claim, within the period of two months from the date of the institution of the suit:

Provided that in a suit instituted without such notice, the Court shall allow not less than three months to the Government to submit its written statement.]

81.In a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity-

(a) the defendant shall not be liable to arrest nor his property to attachment, otherwise than in execution
of a decree, and

(b) where the Court is satisfied that the defendant cannot absent himself from his duty without determent to the public service, it shall exempt him from appearing in person.

82.-(l) Where the decree is against '[the 2[Government]] or Execution against a public officer in respect of any such act as aforesaid, a of decree time shall be specified in the decree within which it shall be satisfied ; and if the decree is not satisfied within the time so specified, the Court shall report the case for 'the orders of the 3(Provincial Government].

(2) Execution shall not be issued on any such decree unless it remains ununsatisfied for the period of three months computed from the date of such report.

SUITS BY ALIENS AND BY OR AGAINST FO1.ETGN RULES,
AMBASSADORS AND ENVOYS

83.-(1) Alien enemies residing [in Pakistan] with the permission of the [Central Government], an alien friends, may sue in the Courts [in the Provinces], as if they were [Citizens of Pakistan].

(2) No alien enemy residing [in Pakistan] without such permission, or residing in a foreign country, shall sue in any of such Courts.

Explanation.-Every person residing in a foreign country the Government of which is at war with 2[or engaged in military operations against] 3[Pakistan], and carrying on business in that country without a [license in that behalf under the hand 4* * * of a Secretary to the 5[Central Government] shall, for the purpose of subsection (2), be deemed to be an alien enemy residing in a foreign country.

84.-(1) A foreign State may sue in any Court [in the Province]:

Provided that such State has been recognized by the [Central Government]:

Provided, also, that the object of the suit is to enforce a private right vested in the head of such State or in any officer of such State iii his public capacity.

(2) Every Court shall take judicial notice of the fact that a foreign State has or has not been recognized by the Central Government].

85.(1) Persons specially appointed by order of the Central Government at the request of the Ruler of any foreign State, or at the request of any person competent, in the opinion of the Central Government to act on behalf of such Ruler, to prosecute or defend any suit on his behalf, shall be deemed to be the recognized agents by whom appearances acts and applications under this Code may be made or done on behalf of such Ruler.]

(2) An appointment under this section may be made for the purpose of a specified suit or of several specified suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute or defend on behalf of the [Ruler].

(3) A person appointed under this section may authorize or appoint persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto.

86. (1) Any [Ruler of a foreign State] may, [……. With the consent of the Central Government, certified by the signature of a Secretary to that Government] but not without such consent, be sued in any competent Court.

(2)Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which the 5[Ruler] may be send; but it shall not be given unless it appears to [the consenting authority] that the [Ruler];

(a) has instituted a suit in the Court against the person desiring to sue him, or
(b) by himself or another trades within the local limits of the jurisdiction of the Court, or
(c) is in possession of immovable property situated within those limits and Is to be sued with reference to such property or for money charged thereon.

(3) No such [Ruler] shall be arrested under this Code, and, except with [the consent of the Central Government] certified as aforesaid, no decree shall be executed against the property of any such [Ruler.]

(4) The Central Government9. ..may by notification in the [official Gazette] authorize a Provincial Government and any Secretary to that Government to exercise with respect to any [Ruler] named in the notification the functions assigned by the foregoing subsections to the consenting authority and a certifying officer respectively.

(5) A person may as a tenant of immovable property, sue, without such consent as is mentioned in this section, a '[Ruler) from whom he holds or claims to hold the property.

186-A. (1) No proceeding in any Court shall lie against a diplomatic agent except in a case relating to-

(a) any private immovable property situated in Pakistan held by him in his private capacity and not on behalf of the sending State for the purpose of the mission;

(b) a succession in which the diplomatic agent is Involved as executor, administrator, heir or legates as a private person and not on behalf of the sending State;

(c) any professional or commercial activity exercised by the diplomatic agent in Pakistan outside his official functions.

(2) No measures of execution shall be taken in respect of a diplomatic agent except in cases which Come under clauses (a), (b) and (c) of subsection (1) and in which such measures can be taken without infringing the inviolability of his person or of his residence.

(3) The initiation of any proceedings in a Court by a diplomatic agent shall, preclude him from invoking immunity from jurisdiction under this section in respect of any counter-claim directly connected with the principal claim.

(4) The immunity of a diplomatic agent under subsection (1) or subsection (2) may be waived by~ the sending State; and any such waiver shall be express.

(5) Waiver of immunity in respect of any proceedings shall not be held to imply waiver of immunity in respect of any measure of execution for which a separate waiver still be necessary.

(6) in this section, 'diplomatic agent' in relation to a State means the head of the mission in Pakistan of that State and includes a member of the staff of that mission having diplomatic rank.

87.[the Ruler of a foreign State] may sue, and shall be sued in the name of his State:

Provided that in giving the consent referred to in the foregoing section [the Central Government, 3*** or the Provincial Government, as the case be, may direct the any such [Ruler] shall be sued in the name of an agent or in any other name.

87-A. Suits against Rulers of acceding and merged states.]

INTERPLEADER

88. Where two or more persons claim adversely to one another the same debt, sum of money or other property movable or immovable, from another person, who claims no interest therein other than or charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of' interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:

Provided that where any suit ii pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted,

PART V
SPECIAL PROCEEDINGS
ARBITRATION

89. [Arbitration] Omitted by the Arbitration Act, 1940 (X of 1940), S. 49 and Third Schedule.

SPECIAL CASE

90. Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.

SUITS RELATING TO PUBLIC MATTERS

91.(1)In the case of a public nuisance the Advocate-General, or two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

92.-(l) in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate. General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the [Provincial Government] within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate, to obtain a decree-

(a) removing any trustee,
(b) appointing a flew trustee ;
(c) vesting any property in a trustee ;
(d) directing accounts and inquiries ;
(e) declaring what proportion of the trust-property or of
the interest therein shall be allocated to any particular
object of the trust ;
(f) authorizing the whole or any part of the trust-property to be let sold, mortgaged or exchanged ;
(g) settling a scheme ; or
(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863. no suit claiming any of the reliefs specified in subsection (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that subsections,

93.The powers conferred by sections 91 and 92 on the Advocate-General may, 1***, be with the previous sanction of the 2[Provincial Government], exercised also by the Collector or by such officer as the 2[Provincial Government] may appoint in this behalf.

PART VI
SUPPLEMENTAL PROCEEDINGS

94.In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,-

(a)issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if' he fails to comply with any order for security commit him to the civil prison;

(b)direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c)grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(c)appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

95.-(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section.

(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or;

(b) the suit of the Plaintiff fails and it appears to the Court that there was no reasonable or probably ground
for instituting the same;

the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding [ten thousand] rupees, as it deems a reasonable compensation to the defendant for the expense of injury caused to him:

Provided that a Court shall not award, under this section, an amount exceeding the limits of its pecuniary jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or Injunction.

PART VII
APPEALS FROM ORIGINAL DECREES

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

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

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

97. Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

98.(l) Where an more Judges, the appeal opinion of such Judges.

(2)Where there is no such judgment varying or reversing the decree shall be confirmed:

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

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

99. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of - action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court

APPEALS FROM APPEALATE DECABRIS

100.-(l) Save where otherwise expressly provided - in the body of this Code or by any ocher law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:

(a) the decision being contrary to law or to some usage having the force of law.
(b) the decision having failed to determine some material issue of law or usage having the force of law
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time
being in force, which may possibly have produced error or defect in the decision of the case upon the
merits.

2[(2) * * * *

101. No second appeal shall lie except on the grounds mentioned in section 100.

3[102. No second appeal shall lie,-

(a) in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [twenty-five thousand] rupees; and

(b) in any other suit, when the amount or value subject matter of the original suit does not exceed 4[two hundred fifty thousand] rupees.

103. In any second appeal the High Court may, if the evidence on the record is sufficient determine any issue of fact necessary for the disposal of the appeal 5[which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason -of any illegality, omission, error or defect such as is referred to in subsection (1) of section 100].

APPEALS PROM ORDERS

104.-(1) An appeal. shall lie from the following orders, and save as otherwise express1y provided In the body of this Code or by any law for the time being in force, from no other orders: -

2[f) an order under section 35-A;
(ff) an order under section 47;]
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is express1y allowed by rules:

3[Provided that no appeal shall lie against any order specified in clause (f) 4save on the ground that no order, or an order for the payment of a Jess amount, ought to have been made].

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

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

(2) Notwithstanding anything contained in subsection (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appea11ies does not appeal there from, he shall thereafter be precluded from disputing its correctness.

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

GENERAL PROVISIONS RELATING TO APPEALS

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

(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.

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

108. The provisions of this Part relating to appeal from original decrees shall, so far as may be, apply to appeal-

(a) from appellate decrees, and
(b) from orders made under this Code or under any special or local law in which a different procedure is not provided.

APPEALS TO THE [SUPREME COURT]

3[109. An appeal from a judgment decree or final order of a High Court shall lie to the Supreme Court -

(a) if the amount or value or the subject-matter or the dispute in the court of first instance was and also in appeal is (unless varied by an Act or Parliament) fifty thousand rupees or upward and the judgment decree or final order appealed from has varied or set aside the judgment decree or final order of the Court immediately below; or

(b) it the judgment, decree or final order involves directly or indirectly, some claim or question respecting property or the like amount or value and the judgment, decree of final order appealed from has varied of set aside the judgment decree or final order of the Court immediately below; or

(c) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.]

110. [Omitted by Federal Adaptation of Laws Order (P.O.4 of 1975) w.e.f 1st August 1975]

111. Notwithstanding anything contained in section 109, no appeal shall lie to 4[the Supreme Court]

(a) from the decree or order of one Judge of a High Court 5***, or of one Judge of a Division Court, or of two or more Judges of such High .Court, or of a Division Court, constituted by two or more Judges of such High Court, where such Judges are cqua11y divided in opinion and do not amount in number to a majority of the whole of the Judges of the High Court at the time being; or

(b) from any decree from which under section 102 no second appeal lies.

111.A.-[Omitted by the Federal Court Act, 1941 (XXI of 1941), S. 2.]

112.-2[(1) Nothing contained in this Code shall be deemed-

(a) to affect the powers of the Supreme Court under Article 3[191 of the Constitution or any other provision thereof] ; or

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

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

REFERENCE REVIEW AND REVISION

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

114. [Review.-(1) Subject as aforesaid, any person considering himself aggrieved-

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

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

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

(2) Nothing contained in sub-section (1) shall apply to a review of any judgment pronounced or order made by the Supreme Court.]

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

(a) to .have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material
irregularity, the High Court may make such order in the case as it thinks fit;

2[Provided that where a person makes an application under this subsection, he shall in support of such application, furnish copies of the pleadings, docu