Section 117

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Evidence Act, S. 61 to 100; Production, impounding and return of documents - O.XIII, Summoning and attendance of witnesses –O.XVI Attendance of witnesses confined or detained in prisons – O.XVIA Hearing of the suit and examination of witnesses – O.XVIII There is also evidence by Arbitrament. Articles 581 – 606 Much more detailed than our provisions of appointment of commissioner, inspection, experts etc. Valuation rules Articles 607 – 612 Valuation rules would be applicable for Inventory Proceedings but they would need to be amended and updated to our circumstances. Judicial inspection Articles 616 – 619 O. XVIII, r. 18 – Power of Court to inspect. Oral evidence – witnesses Articles 626 – 657 Evidence Act, S.118 to 167; C.P.C. O.XVI, XVIA and XVIII. Judgment Articles 658 – 676 Judgement and Decree - O.XX Appeals Articles 677-778 There is a wider variety of appeals than ours. Articles 677 – 782 Appeals Ss. 96-115, O.XLI, XLII, XLIII This matter has been dealt with by Judgment dated 22/12/2015, the full Bench, Bombay High Court, Goa in Misc. Civil Application no. 926/2013, Mrs. Bharti Parkar v/s. Mr. Vilas Mahadev Pilankar & ors. but some types of appeals are not mentioned even in that judgement. Special proceedings – Interdiction due to mental unsoundness. Articles 944 – 958 Covered by Mental Health Act 1987, earlier the Lunacy Act 1912. Rendering of accounts Articles 1012 – 1022 These accounts would be relevant in the case of Inventory proceedings. Payment in the court Articles 1023 – 1031 Payment into Court O. XXIV rr. 1-4 Possessory remedies Articles 1032 Corresponds to Specific Relief Act, 1963. Reconstruction of Credit Instrument, files and books Articles 1068 – 1081 Not a matter of civil procedure in our midst. Appeals against Orders passed by conservators, notaries etc. Articles 1082 – 1088 is peculiar to the Code. Suits for compensation against judges. Articles 1089 – 1099 is totally unknown in our legal system. Review and confirmation of foreign judgments Articles 1100 to 1106 When foreign judgement not conclusive - S. 13, Execution of decrees passed by Courts in reciprocating territory - S. 44A and Execution of Decrees and Orders – Notice to show cause against execution in certain cases – O.XXI, r.22(1)(b) of CPC. Justification of the absence and of the status of heir. This is a procedure unknown to our system. Articles 1107 – 1118 Liquidation of assets – winding up. Articles 1122 – 1157 This is subject matter of Companies Act. Insolvency is a large portion of the code. Articles 1158 – 1368 (210 Articles) Broadly corresponding to the Insolvency and Bankruptcy Code 2016. Inventory Proceedings Articles 1369 – 1447 Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Voluntary jurisdiction, Provisions regarding children and spouses are matter of Family law and would be by and large in force. Articles 1448 – 1501 Protection of absentee is also peculiar to this Code. Articles 1502 – 1506 Preemption is peculiar law Articles 1511 – 1518 Estate in Abeyance Articles 1519 – 1522 Executorship Articles 1523 – 1530 all part of Succession Law. Right of shareholders of companies are subject matter of the Companies Act. Articles 1531 – 1554 Companies Act 2013. Ships and Cargo Articles 1555 – 1560 Dealt by specific legislation. Agreement and Arbitration clause. Articles 1561 – 1580 Covered by Arbitration & Conciliation Act 1996. Settlement of disputes outside the Court - S.89 C.P.C. 1 BOOK I ACTION (Articles 1 – 61) 2 PORTUGUESE CODE OF CIVIL PROCEDURE, 1939 (Code of 1939 enforced in the colonies with effect from 01/01/1940, in replacement of previous Portuguese Civil Procedure Code of 1876, but saving only articles 770, 771 and 772 dealing with emancipation) BOOK I ACTION1 TITLE I ACTION IN GENERAL CHAPTER I BASIC PROVISIONS Article 1 – Bar on restitution by force - No one is permitted to restitute for himself the exercise of his rights by his own force and authority, except in the cases and within the limits prescribed by law.  There is a similar provision under Article 2535 of the Portuguese Civil Code. In Indian Law we have this type of provision only on the Criminal side as Right of private defence under Sections 96 to 106 of the Indian Penal Code 1860.  Self-defence is exceptionally permitted in the circumstances and on the terms mentioned in Articles 486, 2354 and 2367 of the Civil Code. Article 2 - Co-relation between right and remedy - For every right there is a corresponding action meant to protect the same or have it judicially declared and to render it effective, except 1 The word Action (“acção”) corresponding to Latin “actio” means a legal proceeding to enforce or protect a right and in a wider sense includes both civil and criminal proceedings. It is a basic term used practically throughout, in this Code of Civil Procedure and requires explanation. It is often translated as suit but it has a wider meaning. In Article 2, for example, it means remedy or legal means to enforce a right. At times it means the right itself to avail of a legal remedy. It also means claim, proceeding, judicial proceedings, judicial means; in its wider sense it can include both civil or criminal judicial proceedings. It means an action, right, a claim, a law suit, a right of action. It also means litigation for redress of a grievance. It means the act of resorting to authority to vindicate one’s right, or, metaphorically the right to such resort, or the form or mould of such resort. Sometimes it is even extended to appeal or even second appeal but whether counter claim is included is doubtful. In this Code, it includes suits and other civil proceedings. 3 Action meant to protect the same or have it judicially declared and to render it effective, except when the law specifically lays down the contrary.  This is a statutory enactment of the maxim ‘Ubi jus ibi remedium’.  Certain rights are expressly declared unenforceable like right to an amount loaned to a minor, without adequate permission (Art. 1535 of the Civil Code) and right to an amount owed in gambling (Art.1542 of the Civil Code). Article 3 - Necessity of petition and defence - The court shall not resolve a conflict of interest which an action presupposes unless the relief is prayed for by one of the parties and the other is duly called upon to oppose the same. But in exceptional cases envisaged by law, measures may be taken against a person without the said person being heard.  The first part of this Article requires that relief should be specifically stated as in O.VII, r. 7 C.P.C, 1908. The next portion of the article deals with the basic rule of natural justice of hearing the other side (“Audi alteram partem”) which is found in Section 27 to 29 and entire Order 5 as also O. 39, r.3, first part of C.P.C. 1908. Further ex-parte Order is also contemplated which we have by way of interim relief eg. under O. 39 r. 3, proviso.  Examples of exceptional cases in which measures can be taken against a specified person without hearing the same are; Provisional restitution of possession (Art. 400), Preventive orders (Art. 406), Attachment (Art. 410), Injunction against new construction (Art. 423), Enlistment of assets (Art. 431(3)), Interdiction for lunacy (Arts. 947 / 951), Interdiction for prodigality (Art. 960) and Declaration of insolvency (Art. 1142). Article 4 - Types of actions and their purpose - Actions are of plain appreciation or declaration, mandatory orders, injunctions, restoration and executions. The purpose is as follows:- (a) Those of plain enquiry, are solely for obtaining the declaration of the existence or inexistence of any right or fact. (b) Mandatory orders to direct the delivery of anything or the performance of any act. (c) Injunctions, to prevent a damage which is apprehended. (d) Restoration, authorizing a change in the existing juridical relations. (e) Executory to render effective a right already declared.  Clauses (a), (b) and (c) as translated corresponds to declaratory, mandatory and to suits for preventive injunction. Clause (d) relating to change of juridical relations includes suits for divorce, declaration of paternity; on the property side, proceedings for acquisition, easement, partition of property and so on, clause (e) refers to execution proceedings. cf. Alberto Dos Reis, ‘Comentario ao Codigo de Processo Civil’, Vol. 1, Coimbra Editora, Lim, Coimbra 1960, pgs.19-22 and ‘Codigo de Processo Civil Anotado’, Vol. 1, Coimbra Editora, Lim, Coimbra 1948, pgs.21-24. 4 CHAPTER II PARTIES SECTION I JUDICIAL PERSONALITY AND JUDICIAL CAPACITY Article 5 - Concept and measure of judicial personality - Judicial personality consists in the aptitude to be a party. One who has juridical personality has judicial personality. Article 6 - Judicial personality without juridical personality - An inheritance, whose title holder has not yet been decided and similar autonomous estates, legally existing associations, and societies of civil nature, not being family societies, may be parties, even though they do not have juridical personality. Article 7 - Judicial personality of branch offices – Branch offices, agencies, affiliated commercial units or delegations may sue or be sued when the action is based on an act or fact done by them. § Sole Paragraph: If the principal administration has a head office or domicile in a foreign country, the branches, agencies, affiliates or delegations established in Portugal, may sue or be sued, even though the action arises from an act or fact done by former, when the obligation has been contracted with a Portuguese national.  Article 85, Paragraph 4 of this Code. “Act” is defined as “something done or performed, especially voluntarily, a deed, an occurrence that results from a person’s will being exerted” (‘Black’s Law Dictionary’, Thomson Reuters, 10th Edition 2014, pg.29). “Fact” is a thing done or performed, an action, deed. Also action in general. (‘The Shorter Oxford Dictionary, on historical principles’, Clarendon Press, 1990, Vol. 1, pg. 717). Article 8 - Personality of irregular societies - The societies and associations, which are not legally constituted, but are acting as if legally constituted, are not entitled to raise the plea of irregularity of their constitution; but the action may be filed against the persons who, according to the law, have liability arising from respective act or fact. § Sole Paragraph: When a society or associations are sued, they are permitted to raise a counterclaim in defence. 5 Article 9 - Concept and measure of judicial capacity - The judicial capacity consists of the capacity to appear in person before the court and has as its basis and measure the capacity to exercise rights.  Note to Articles 5 & 9 :- The Code distinguishes between Judicial Personality and Judicial Capacity. Judicial Personality is the susceptibility or ability to be a party as Applicant, Petitioner or Respondent, and the second is the susceptibility to be a party as Petitioner/Plaintiff (called active judicial capacity) or as Respondent/Defendant (passive judicial capacity). This distinction runs parallel to the one made in the Civil Code between capacity for rights (Civil Capacity) or Juridical Personality (Civil Code, Art. 1) and the capacity to exercise the rights (Civil Code, Arts. 5, 98, 314, 337, 340). In principle, juridical personality and judicial personality (Art. 5) coincide, so also capacity for exercise of rights, civil capacity and judicial capacity (Art. 9) also coincides. For example, a minor or a person interdicted for lunacy have juridical personality and for this reason have judicial personality; but since they do not have the capacity to exercise rights (Civil Capacity) they are also without judicial capacity (Art. 10). However, juridical and judicial personality, as also capacity to exercise rights (Civil Capacity) and judicial capacity are not always the same thing. There are exceptions; in which judicial personality is recognized in entities which do not have juridical personality (Art. 6, 7 & 8), and in which a certain judicial capacity is attributed to persons otherwise incapable to exercising their rights (Art. 13) – cf. A. dos Reis, op. cit. 1960, pg. 23-25 and ‘A. dos Reis, op. cit. 1948, pg. 26-27. Article 10 - Representation of persons without legal capacity - The incapables2 may appear in the court only through their representatives, except in the acts which they are permitted to act in person. § Sole Paragraph: If there is conflict of interest between an incapable and his representative, or the spouse, or ascendants, or descendants of the latter, such an incapable shall be represented in the proceedings by a special curator. The same shall be followed when there is a conflict between several incapables who have the same representative. In such case, to each group of the interested parties in conflict, there shall be appointed one curator. The appointment of the curator shall be done by the court after hearing the Public Ministry.  See Civil Code Articles 59, 71,138, 139, 153, 155,185, 243, 321, 339, and 349.  This article is in wider terms and includes what is provided in Order XXXII of the C.P.C. 1908.  Articles 10-16 - Representation of persons without legal capacity - Corresponding provisions in C.P.C. 1908: - o Consent or agreement by persons under disability – S.147 o Suits by or against minors and persons of unsound mind – O.XXXII C.P.C. Article 11 - Appointment of representative - Where an incapable has no representative, it is permissible to apply to the competent court for such representative. It is also permissible to apply 2 “incapable” means devoid of legal capacity or legally disabled. 6 to the court to appoint a provisional curator, where there is urgency in filing of the action. In the latter case, immediately after the action is filed, the competent court shall move to seek the appointment of the general representative, who shall take the place of the provisional curator in the action. § Sole Paragraph: The appointments referred to in this article and the sole paragraph of the preceding article shall be applied for, by the Public Ministry3 or by any relative up to the sixth degree where the incapable is the applicant. Where he has to figure as a respondent, the application shall be moved by the applicant. Article 12 - Powers of the guardian and the curator - For filing of actions, the guardian requires permission of the family council, and the curator requires judicial permission except if the action is purely of protective nature or the delay in filing the same may result in the extinguishment of the right or of any security.  See Civil Code Articles 9, 17, 59, 224, 243 and 351.  Action of protective nature means preventive relief like injunction. Article 13 - Judicial capacity of minors of more than 14 years and those interdicted for prodigality - Minors, not emancipated, more than 14 years of age, and those interdicted on account of prodigality, shall be permitted to intervene in actions in which they are parties and they shall be summoned when they are defendants. § Sole Paragraph: In the event, if the minor completes 14 years of age during the pendency of the matter and after his representative has been summoned, he need not be summoned again, though he may be a respondent, but he may intervene on his own initiative. Article 14 - Representation of persons disabled from receiving summons or notice - Persons who in any of the circumstances mentioned in Paragraphs 1, 2 and 3 of Article 236 are infact unable to receive the summons or notice, shall be represented by a curator appointed in the terms of the said article. 3 Public Ministry – The expression “Ministerio Publico” found all over the Portuguese Civil Procedure Code has been translated as Public Ministry. It is a function of the State on the civil side whereby the State intervenes in various proceedings in the interest of the public, of the citizens particularly persons without legal capacity like children. This function was performed by State law officers attached to the Courts. 7 (1) This representation shall cease when found unnecessary or when a document is submitted which proves that the interdiction was legally established. The lack of need for curatorship shall be summarily decided on the application of the person under curatorship who may produce any proofs. (2) Where interdiction has been legally ordered, the tutor shall be immediately notified to come to take the place of the curator in the proceedings.  This is related to Art.236 of the Civil Code. Article 15 - Defence of the absentee and the legally disabled by the Public Ministry - If the absentee at unknown place or his representative or the representative of a legally disabled person does not raise any objection, it will be for the Public Ministry to take up the defence of the legally disabled or the absentee, for which purpose it shall be duly notified and given fresh time limit for defence. When the Public Ministry represents the applicant, a special defence lawyer shall be appointed. § Sole Paragraph: The representation by the Public Ministry or the appointed defence lawyer shall cease as soon as the absentee person appears or his representative or the representative of the legally disabled persons appoints an advocate. Article 16 - Representation of uncertain persons - When the action is filed solely against uncertain parties, they shall be represented by the Public Ministry. In the event the Public Ministry represents the applicant, the assigned counsel shall be appointed to serve as special agent of the Public Ministry to represent the uncertain parties. § Sole Paragraph: Such representation shall cease as soon as any person whose locus standi has been acknowledged by judgment appears to intervene as respondent. Article 17 - Husband’s capacity to institute proceedings - The husband may, without the written consent from the wife, file any actions, except those, which are meant to acknowledge the ownership, absolute or limited of the immobile assets, whether common or exclusively of the wife.  The word used here is “Outorga” as in Civil Code Article 1191 which means “to declare by public deed”4. 4 Dicionario de Portugues, J. Almeida Costa, 3.ª edicao, Porto editor, LDA, Porto Portugal; Diccionario Contemporaneo da Lingua Portugueza, F. J. Caldas Aulete, 2.ª edicao actualisada, 1925, Parceria Antonio Maria Pereira, Lisboa 8 Article 377 of Portuguese Civil Code, 1867 – Immobile things and mobiliary things – When in the civil law or in the acts or contracts, the expression - immobile assets or things - is used, without any other qualification, it shall include not only those which are immovable by nature or human action as also those which are so by operation of law. When the expression - “immovables”, “immovable things or assets” – is used simply, this shall mean only those which are so by nature or by human action. § Sole paragraph - In the same way the expression - mobiliary assets or things shall include not only movables by nature as those which by operation of law and by the words - movable, movable things or assets shall be meant only physical objects which are movables by nature. Article 18 - Capacity of wife to institute proceedings - The wife has the same active judicial capacity as the husband, when on account of absence or impediment of the latter, she holds the administration of the matrimonial assets. During the time the husband exercises the power of administration, the wife may only institute actions meant to enforce her own and exclusive rights of extra-patrimonial nature, for which she does not require permission of the husband. § Sole Paragraph: In the cases foreseen in the previous article and in the first part of the present article, the consent from the wife or authorization from the husband, wherever necessary, shall be made up for judicially when it is refused without just motive or cannot be applied for.  Civil Code Articles 1190 and 1192; Article 44 of Decree no. 2 of 25/12/1910; Article 1477 of this Code. Article 19 - Judicial capacity of spouses to be proceeded against – The following may be instituted against the husband and against the wife: