Amendment status not verified — confirm the current text below against the official source.

Appeals – Articles 677 – 782 This is only an illustrative, not an exhaustive list. All these topics need a full legislative revision and updating; in particular most of them would need to be specifically incorporated in a new statute.  In this translation to guide and facilitate the use of the Code as to which articles are in force or not, notes have been inserted wherever possible below the articles or as footnotes all over the text of this translation.  In various areas of law although corresponding Indian Acts have been extended to Goa, there are provisions in the Code of Civil Procedure, 1939 which do not have a corresponding provi- sion in the equivalent Indian legislation. Therefore it is often an open arguable question whether a provision of the said Code of Civil Procedure is in force or not.  A comprehensive re-codification of the Code of Civil Procedure, 1939 alongwith the substan- tive Civil Code 1867, (including in it also the Family Laws, Succession and Inventory), the Civil Registration Code, 1912 and Notarial laws into one unit is the need of the hour.  Article 348 of the Constitution provides for an English translation of legislation which is in a language other than English. Such a translation is to be published in the Official Gazette and shall thereafter be deemed to be the authoritative text thereof in the English language.  The High Court of Bombay at Goa by Order dated 24/03/2017, observations dated 26/09/2018 and a subsequent Order dated 17/10/2018 in Public Interest Litigation (Suo vii Moto) No.1 of 2017 also ordered that an official translation of this Code in English be pre- pared.  In this Code, each provision is referred to as an article which corresponds to what we call sec- tion in Indian legislation  In the said Code, the word Section is a part of a chapter and consists of a number of articles.  Brief titles/ headnotes have been inserted for each Article of the Code so as to facilitate its use.  Many concepts in the Code of Civil Procedure do not have a synonymous expression in In- dian or English Law. Hence various legal concepts and expressions have been translated to the nearest possible meaning.  Pure Civil Procedure itself is laid down in extreme detail which perhaps we would find exces- sive and unnecessary in view of the pattern to which we are used. Dr. F.E. Noronha viii Internal Organization of the Portuguese Code of Civil Procedure, 1939 The Code is divided into four Books. Each Book is divided into Titles, each Title into Sub- titles, each Sub-title into Chapters, each Chapter into Sections, each Section into Sub Sections, each Sub Section into Divisions and each Division consists of Articles :- Book I – Action – has two Titles Book II – Jurisdiction and prevention of bias – consists of a single Title Book III – Proceedings – consists of four Titles Book IV – Arbitral tribunal – consists of two Titles ix x Preliminary Law (Decree Law No. 29637, of 28th of May 1939) In exercise of the powers granted by the 2nd part of No.2 of Article 109 of the Constitution, the Government decrees and I enact the following to operate as law: Article 1 (Promulgation) The Code of Civil Procedure, which is part of present law, is approved. Article 2 (Commencement and extent of operation) The Code shall come into force in the entire continent and adjoining islands on the 1 st day of October of the current year. Article 3 (Revocation of previous law) With effect from the date of the commencement of its operation, all previous legislation on civil and commercial procedure is repealed, and specifically the Code of civil procedure of 8 th November 1876, the decree No.4618 of 13th July 1918, the decree No.21287 of 26th May 1932, the Code of commercial procedure of 14th December 1905 and the Code of Bankruptcies, approved by decree No.25981 of 26th October 1935. § Sole Paragraph: exception is made for procedural legislation contained in the Labour Code and in the Code for roadways, as well as special legislation on procedure in liquidation of banking houses and expropriations for public purpose. Article 4 (Regime for subsequent alterations) All the modifications which are made in future on matter contained in the Code of civil procedure shall be considered as being part of the same and inserted at appropriate place, such modifications xi being always effected by means of substitution of the modified articles, elimination of articles not in use or by the addition of those which are necessary. Article 5 (Improvements to the Code) It is for the office of the Attorney General of the Republic to receive all the representations suggesting improvements to the Code and to submit to the Government all the measures which are deemed appropriate for this purpose. Article 6 (Extension to the colonies) The Government is hereby authorized to extend the Code of Civil Procedure to the Colonial Empire, with modifications which the special circumstances of the colonies demand. To be published and carried out in the manner contained therein. Palace of the Government of Republic, 28th May, 1939. ANTÓNIO ÓSCAR DE FRAGOSO CARMONA - António de Oliveira Salazar - Mário Pais de Sousa - Manuel Rodrigues Júnior - Manuel Ortins de Bettencourt - Duarte Pacheco - Francisco José Vieira Machado - António Faria Carneiro Pacheco – João Pinto da Costa Leite - Rafael da Silva Neves Duque. xii Decree Law No.29950 of 30th of September, 1939. Article 1 Articles 60th, 471st, 474th, 791st, 792nd, 806th and the sole Paragraph of Article 933rd of the Code of Civil Procedure shall now have following wording:* Article 2 In between Articles 1162 and Article 1164 of the Code of Civil Procedure one article having following text is inserted:* Article 3 The pecuniary jurisdiction of the High Courts is of 20000$ and that of the Courts of judicial division is 6000$, whatever may be the nature of the assets. § 1.Appeal shall always lie to the Supreme Court of Justice: 1st. From decisions appealed from on the ground of absolute lack of jurisdiction of the court or violation of "res judicata". 2nd. The order which ﬁxes for the suit, the incidental proceeding or for the preventive and conservatory proceeding the value within the pecuniary jurisdiction of the court of judicial division or the High Court, if the appeal is preferred on the ground that the value exceeds the pecuniary jurisdiction; 3rd. Any other actions or incidental proceedings for which by a special law such appeal is admissible. § 2. The subject of pecuniary jurisdiction is regulated by law in force at the time of the institution of the action. ________________________________________ * the amended text has been inserted at the appropriate places. xiii Article 4 The collective court shall have jurisdiction to decide cases of value above 6000$, excepting only the suits where special procedure is prescribed which excludes the intervention of the same collective court. In the incidental proceedings, in the preventive and conservatory proceedings and in the executions, the collective court shall intervene only where ordinary and summary procedure of declaration is to be followed and when the value exceeds that limit. § Sole Paragraph: The questions of fact of the jurisdiction of the collective court are those which are to be ﬁnally decided. Article 5 Until the new Judicial Statute is not published, the provisions of Article 46 to 68, both inclusive, shall continue in force as well as of Code of Bankruptcy approved by Decree No.25981 dated 26/10/1935, with respective table annexed. Article 6 The ﬁnes to be imposed in civil proceeding shall be ﬁxed, unless provided to the contrary, between 50$ and 1000$ and from such amount 50% goes to the account of the court and of the Bar organization, in equal parts, and the balance 50% shall be income of the Government. § Sole paragraph: The ﬁnes to be imposed to the litigants in bad faith shall be between 500$ and 50000$ and shall revert, in equal parts to the State and other half to the account of the court and the Bar organization. Article 7 As and when they fall vacant, the posts, one of Judge of the Supreme Court in the cadre of the Supreme Court of Justice and two of Judges in each of the High Courts of Lisbon and Porto are extinguished. Article 8 The 10th criminal court at Lisbon is extinguished and the judicial circle no.48 to be formed by the judicial divisions of Almada and Montijo, and the respective collective courts shall be constituted xiv of the Judge of the judicial division where the proceeding is pending, by his substitute and by the Judge of other judicial division. Article 9 The proceedings pending in the No. 10th criminal court, now extinguished, shall be distributed amongst the remaining criminal courts, and the books of registration shall be in the custody of the ofﬁce of the General Distribution of Criminal Courts. § Sole Paragraph: The disposed ﬁles shall be sent to judicial archives. Article 10 The heads of ofﬁce and of section, their assistants and ofﬁcials of extinct - 10th Criminal Court of Lisbon, shall be additional receiving 5/6th of their salaries and shall be placed in the corresponding category in the vacancies which occur in the judicial division of respective class, and preferably of the Lisbon. § Sole Paragraph: The ofﬁcers mentioned in this article, until they continue to be additional may be directed by the Minister of Justice to render service, in the Secretariat of Criminal Court of Lisbon, upon the proposal made by the Chief Justice of the respective High Court. Article 11 This decree law comes into force on the 01st of October. xv xvi Ministerial Order No. 9677 of 30th October 1940 The Government of Portuguese Republic, through the Minister of Colonies, in consultation with Superior Judicial Council of the colonies and in terms of Article 91st of the Organic Charter of the Portuguese Colonial Empire and Article 6 of Decree No.29637 of 28th May 1939 directs that in all the Colonies the Civil Procedure Code, approved by same decree, and the Decree Law No.29950 of 30th September 1939 which modiﬁed the said Code, be published in order to come into force on 01st of January 1941, in its application the following shall be observed: 1st Whenever in any judicial division there is no advocate or solicitor* and the law requires his intervention, the judicial mandate may be exercised by a judicial attorney or by someone who is appointed by the Judge for such purpose. 2nd If the party does not ﬁnd anybody who voluntarily agrees to represent him in court, he may apply to the Judge to appoint a representative, who may act as such without any other formality. The appointment shall be done without delay with notice to the appointee, who may plead inability within 48 hours. In the absence of such excuse, or if such excuse is found not justiﬁed, the appointee shall represent the client, on the pain of being suspended for six months or fine, if the appointee refuses to act as advocate or attorney. 3 Wherever the expressions like “Court of Lisbon” “Diario do Governo” (Gazette of the Portuguese Central Government in Lisbon) and “General Bank of deposits” are used, the same expressions shall mean and stand substituted respectively by “judge of the judicial division of the capital of the colony”, “Official Gazette” and “establishment where the judicial deposits are made”. _________________________________________________________________________ * There were two categories of qualified and registered lawyers who could represent parties in court: Advocate and Solicitor, the latter with more limited powers; and being however quite different from the solicitor in the English or Indian Legal system. The distinction between Advocate and Solicitor is brought out in Article 33 of the Portuguese Code of Civil Procedure, 1939. xvii 4 The jurisdiction conferred in article 95 is given solely to special municipal judges. When the case is of not special municipal judge, such jurisdiction is limited to 2000$. 5 When the Code uses the expression “heads of the secretariat office”, “staff of secretariat office”, “secretariat office” and “sections” and it does not deal with acts done in the High Court, the same expression shall mean clerk of the court (“escrivães”), assistant to the clerk of the court, “accountant: and “Court ofﬁce”, as the case may be. 6 What is provided in Article 139 is applicable to all who do not know Portuguese language. 7 It is the judge that shall receive the pleadings and issue the summons upon them being subscribed by the clerk of the court (escrivao). 8 The disciplinary action by the Bar Council and Chamber of Solicitors shall be exercised by the judge, to the extent applicable. 9 The expression “regedor” shall always be understood as “local administrative authority” 10 The periods of the extension of the time limit, as provided in Article 180 and all the procedural steps to which the party has to attend personally, may be altered by the judge, as he deems ﬁt, taking into consideration the distance, facility of communication and the nature of the procedural steps. xviii 11 Article 209 and its Paragraph is not attracted and the distribution is to be done in the High Court by the judges and in the judicial divisions by the clerks of the court. 12 The expression continent or adjacent islands and country is to be understood as “Colony”. 13 The proceeds of the ﬁnes referred to in the Article 6 of the Decree Law No.29950 shall revert to the State and the account of the Court in equal shares. 14 The provisions referring to Collective Court are not attracted and the function continues to be exclusive jurisdiction of the judges who will decide on law and facts. 15 The category No.7 of Article 222 shall have following divisions: 1st. Pauper proceedings and inventory upto l000$. 2nd. Inventories of more than 1000$00 to 5000$00 3rd. “ “ “ 5000$00 to 10000$00. 4th. “ “ “ 10000$00 to 50000$00. 5th. “ “ “ 50000$00 to 100000$00. 6th. “ “ “ 100000$00 to 500000$00. 7th. “ more than 500000$00 The inventories included in Nos. l and 2 and proceedings of estate upto 10000$00 are exempted from costs and stamp duty; and in No.3 there shall not be rise in the percentage of 30% and on the sole enrolment of 10$00 for the accountant. 16 The jurisdiction conferred on to “Tutoria da infancia” (Children Court) is exercised by the judge xix and the “council of tutelage” continues to be as per the legislation in force. 17 The notices, summons and public notices shall be done by the post when such services are available; otherwise they will be done by writ under the order of the Court. 18 The pecuniary jurisdiction of High Court shall of 20000$ and of the judges shall be 3000$, whatever may be the nature of the assets. 19 The provisions relating to unions are not attracted and such powers shall be exercised by the judge and ﬁscal curators as per previous legislation. 20 The publication referred to be done in the newspaper shall be done through the Gazette when there is no newspaper in the colony. 21 In the summary proceeding, the evidence shall always be recorded in writing unless the parties have renounced the right to appeal. 22 The decision by High Court shall be taken by 3 unanimous votes, and if there is no unanimity, the matter shall go with endorsement to as many judges as may be necessary to obtain the majority and if still there is no majority, the matter shall be sent to the High Court of Lisbon. 23 In the colonies of Timor, Macau and India, the values in escudos are converted into local currency, as per prevailing exchange rate: (a) of the plaint, execution or other proceeding, for the purpose of pecuniary jurisdiction of the xx court and costs. (b) Towards fulﬁlment of obligation, the value will be as per quantum of liability. (c) Of the distribution, regarding inventories, inheritance and similar proceedings. (d) Of the doing of an act when the law directs to consider it. In the remaining colonies, the “escudos” will be calculated as per the rate prevailing in the main land. 24 What is provided in Article 140 shall be applicable to the documents written in the language or dialect spoken in the region, which are not simply variation of Portuguese language. 25 The provision of Article 180 is applicable to the letters issued by the colonies mentioned in clause (c), (d) and (e) which are to be executed in the main land or in the adjacent islands, because of the extended period of limitation is the same referred to in the clauses for opposite case. 26 The rule prescribed in the previous number is applicable with analogy to the case foreseen in Article 181. 27 In the certiﬁed copy referred to in Article 232, the bailiff shall identify the witnesses by their names, status, profession and residence. 28 The information which by the said Code are collected from parish priest and local administrative authority (regedor) in the colonies shall be obtained from parish priest or missionary or from any other local administrative authority. 29 To the article 588, following addition to be made: xxi Governors General; Governors of Colony; Governors of Province; Governors of District. 30 To the No.6 of Article 588 shall be added following words: - “Save in the cases foreseen in ﬁrst part of Article 595, in the third part of the same Article and second part of Article 604”. 31 In the No.2 of Article 589, following words are to be added: “and the Portuguese Catholic missionaries.” 32 What is provided in Article 631 is extended to: Governors General; Governors of Colony; Governors of Province; Governors of District; Chief Justices of High Courts; Procurators of the Republic, Dealing with the President of Republic, the communication referred to in Paragraph shall be done through Ministry of Colonies, which will transmit to the Ministry of Justice, followed by other formalities. Dealing with governors or “judges”, paragraphs 2 and 3 of the same article shall be applicable. 33 The exchanges referred to in articles 882, 883 and 884 shall be of the continent and for that purpose necessary letters of requests shall be sent. xxii 34 In the notices and publications required by article 890, the moveables shall be identiﬁed in such a manner to indicate precisely their quality, nature, substance, type and other details convenient for its individuality; and it will be declared what is the value for which each of them will go on for auction. 35 In the judicial divisions of the State of India, whenever the judgment debtor uses of the power conferred by second part of Article 894, as well as in the case of Article 904, the claimant or the bidder shall deposit half of the price offered, and deposit of the amount shall be made: as to the bidder, at the time of the conclusion of the bid and as to any claimant, within the period of 5 days from the date of the offer made by the judgment debtor. 36 In the judicial divisions of Judicial District of Nova Goa, as far as agrarian Comunidades are concerned, the following shall be observed: a) The service of summons shall be made on the person of Administrator or the person who substitutes him; b) The Comunidades may use against key holders and watchman, debtors and their sureties or against those who, by any other manner, are constituted as Receivers of moneys, of the shares and privileges which by law belong to the National Exchequer (Fazenda) to take steps for the recovery of their credits, in accordance with Code of Comunidades, approved by legislative Diploma No.651, of the State of India dated 30/03/1933; c) The Comunidades are represented in the Court in accordance with Article 12 of the said Code of Comunidades. d) The attachments for recovery of the debts payable by the Comunidades, may be done on their credits, liquid income, as per their estimate, receipts and expenditure and any other income but never on their immobile assets. The attachment always will be done in the hands of the treasurer of the Comunidade, with the assistance of the respective clerk, who on his own responsibility shall bring to the notice such attachment to the Administrator, within 24 hours, for the necessary purposes; the clerk entrusted xxiii with the ﬁle shall declare in the report of the attachment the amount to be recovered and accessories; e) The proceeds of the “jono” of the components of the Comunidades and of rights to the future proceeds may only be seized or attached for their debts to the Comunidade and their subrogates; Besides this, it is permissible to seize or attach only the amount of the said proceeds already accrued to which they have right at the time of the attachment. 37 In the judicial division to which reference is made in No.36, following shall be observed, in the case of families of gentiles. a) The personal summons to be served on the person of any member of a gentile family, may be made on the person of the head of the family or on the administrator of the same, or of any substitute as per the usages and customs directed to be observed by the civil law. b) The gentile families who reside in the same house and live under common domestic economy are considered for the purposes of the Code of Civil Procedure, as family societies, governed and administered in accordance with respective usages and customs, by the head of the family or administrator lawfully constituted, who shall be competent to represent them in the Court. 38 Articles 770, 771 and 772 of the Code of Civil Procedure approved by Charter of Law dated 08/11/1876 are maintained. This government order substitutes for all purposes, the Government order No.9605 published in the Government Gazette dated 20/07/1940. To be published in the Ofﬁcial Gazette of all the colonies. Ministry of Colonies, 30th October 1940 The Minister of Colonies, Francisco Jose Vieira Machado Note: The text of this decree required official updating since the expression colony was replaced by overseas province by article 134 of the Portuguese Constitution. xxiv xxv INDEX TABLE OF CONTENTS Contents Articles Page Nos. BOOK I (1-61) 3 Action TITLE I (1-44) 3-17 Action in general Chapter I – Basic provisions …………………………………………….… 3-4 Chapter II – Parties ………………………………………………………… 5-17 Section I – Judicial personality and judicial capacity…………………….. 5-12 Section II – Legal standing to sue or to be sued…………………………. .. 12-14 Section III – Representation of parties before the Court ………………….. 14-17 TITLE II (45-61) 18-22 Execution Chapter I – Executable document…………………………………………. 18-21 Chapter II – Parties ………………………………………………………… 21-22 BOOK II (62-137) 25-49 Jurisdiction and prevention of bias Chapter I – General provisions as to jurisdiction ………………………… 25 Chapter II – International jurisdiction……………………………………… 26 Chapter III – Internal competence………………………………………….. 26-36 Section I – Jurisdiction as to subject-matter……………………………… 26-27 Section II – Pecuniary jurisdiction………………………………………… 27 Section III – Competence with reference to the hierarchy (subordination of courts)…………………………………….. 28-29 xxvi Contents Articles Page Nos. Section IV – Territorial jurisdiction………………………………………… 29-34 Section V – Special provisions as to executions…………………………… 34-36 Chapter IV – Extension and consequential jurisdiction ……………………. 36-37 Chapter V – Violations of jurisdiction……………………………………… 37-42 Section I – Absolute lack of jurisdiction………………………………..…. 37-39 Section II – Relative incompetence……………………………………….... 39-41 Section III – Conflicts of jurisdiction and competence………………….….. 41-42 Chapter VI – Assurances of impartiality…………………………………….. 43-49 Section I – Impediments - disqualification due to conflict of interest………. 43-45 Section II – Recusal and lack of confidence ……………………………..…. 45-49 BOOK III (138-1560) 53- 484 Proceedings TITLE I (138-475) 53-151 General provisions Chapter I – Procedural acts ………………………….……………………….. 53-92 Section I – Procedural acts in general ……………………….…………….… 53-72 Sub-section I – Common provisions ………………………….………………….. 53-55 Sub-section II – Acts of parties ………………………….………………….……. 56-57 Sub-section III – Judicial acts ………………………………………………....…. 58-59 Sub-section IV – Acts of the registry ………………………….………….….…... 59-63 Sub-section V – Notification of judicial proceedings…………………….….…… 63-68 Sub-section VI – Nullity of acts………………………….…………………..…… 68-72 Section II – Some special acts………………………….……………….…… 72-92 Sub-section I - Allotment of cases………………………….…………….………. 72-78 xxvii Contents Articles Page Nos. Division I – General provisions………………………….………………....... 72-73 Division II – Provisions relating to the first instance ……………………….. 73-76 Division III – Provisions relating to superior courts ……………………....… 76-78 Sub-section II – Summons and notices………………………………………….. 78-92 Division I – General provisions………………………………………….….... 78-79 Division II – Service of summons……………………………………………. 79-89 Division III – Notices………………………………………………………… 89-92 Chapter II – Proceedings………………………………….……….…………. 92-104 Section I – Commencement and prosecution of the proceedings……… 92-96 Section II – Stay of proceedings …………………….………………… 96-99 Section III – Temporary suspension of proceedings……………………. 99-100 Section IV – Termination of proceedings…………………….…… 100-104 Chapter III - Procedural stages……………………………………..………… 104-125 Section I – General provisions…………………….……………………….… 104 Section II – Valuation of the cause…………………….…………… 104-108 Section III – Intervention by third party…………………….…… 108-118 Sub section I – Indication of the third party…………………….……………....… 108-113 Sub section II – Assistance through intervention…………………….…………… 113-115 Sub section III – Opposition…………………….………………………………… 115-117 Sub-section IV – Intervention as main party…………………………….………… 117-118 Section IV – Forgery……………………………….………………… 119-122 Sub - section I – Forgery of documents…………………………………...………… 119-121 Sub - section II – Forgery of judicial acts…………………….………………...…… 121-122 Section V – Bringing heirs on record (substitution of parties) …… 122-125 Section VI – Liquidation…………………….……………………… 125 Chapter IV – Preventive and conservatory proceedings……………………..... 126-146 xxviii Contents Articles Page Nos. Section I – General provisions…………………………………...… 126-127 Section II – Provisional maintenance…………………….……… 127-129 Section III – Provisional restoration of possession………………… 130 Section IV – Suspension of the resolutions of a society…………… 130-131 Section V – Preventive measures………………………………….. 131-132 Section VI – Seizure…………………….………………….…….. 132-135 Sub - section I – General provisions……………………………..…….………..… 132-134 Sub - section II – Special provisions relating to attachment against treasurers, cashiers or debtors of the government or of local authorities………. 135 Section VII – Denunciation of new work (embargo) …………… 136-138 Section VIII – Affixation of the seals and enlisting……………… 138-140 Section IX – Security bonds…………………….………………… 140-145 Sub section I – Furnishing of security bond ……………………………….…….. 140-143 Sub section II – Reinforcing security……………………………….……………. 143-145 Section X – Deposits and protests………………………..….……… 145-146 Chapter V – Costs, fines and damages…………….…………..….………….. 146-149 Section I – Costs…………………….…..….…………..….……… 146-148 Section II – Fines and damages………..….……………………….… 148-149 Chapter VI – Forms of proceedings…………………….…..….……………… 150-151 Section I – Common provisions…………………….…………..…. 150 Section II – Proceeding for declaration…………………….……….. 150-151 Section III – Execution proceedings …………………….……..… 151 TITLE II (476-800) 152-252 Declaratory suits Sub title I – Conciliation…………………….……..….……………..….…… 152-153 Sub title II – Ordinary proceeding……………………..….………….……… 153-247 xxix Contents Articles Page Nos. Chapter I – Pleadings…………………….…..….…………………………….. 153-162 Section I – Initial petition (plaint) ………………..….……………… 153-156 Section II – Absence of the defendant………………..….………… 156 Section III – Written statement…………………..….……………. 157-161 Sub section I – General provisions……………..….………………….….……….. 157-159 Sub section II – Exceptions………………..….…..….…………………….…….... 159-161 Sub section III – Counter claim…………………….……..….………………..….. 161 Section IV – Replication and triplication (rejoinder and sur rejoinder) 161-162 Chapter II – Preliminary hearing and curative order………….………….……. 162-164 Chapter III – Trial…………………….……….…..….………………..………. 165-203 Section I – General provisions……………………….…..….………. 165-167 Section II – Documentary evidence………………………………..… 168-176 Sub-section I – Types of documents and their probative value…….……….……... 168-173 Sub-section II – Production of documentary evidence…………………...………... 173-176 Section III – Proof by admission of the parties……………….…..…. 176-181 Sub-section I – Kinds of admission and its probatory force………….…..….….…. 176-179 Sub-section II – Recording of deposition of party……………….……….…..….…. 179-181 Section IV – Oath…………………….……….…..….……………… 181 Section V – Evidence by arbitrament …………………….………… 181-194 Sub-section I – Types of arbitrament and their evidentiary value……….………… 181-182 Sub-section II – Examination and inspection……………………..……….………. 182-191 Sub-section III – Valuation……………….…………………………..….………… 191-193 Sub-section IV – Second arbitrament………….………..……………….…………. 193-194 Section VI – Judicial inspection…………………….……….…..….….……… 194 Section VII – Oral evidence…………………….………….…..….… 195-203 Sub- section I – Admissibility and value of oral evidence- who may be a witness… 195-196 xxx Contents Articles Page Nos. Sub-section II – Production of oral evidence…………….…..…..…………….…. 196-203 Chapter IV – Hearing of the suit…………….…..….………………………… 204-208 Chapter V – Judgment…………………….……….……………………..…… 208-213 Section I – Preparation of the judgment……………….…………… 208-210 Section II – Vices and review of the judgment…………….……… 210-211 Section III – Effects of the judgment…………………….……….… 212-213 Chapter VI – Appeals…………………….…….…………………….………… 213-252 Section I – General provisions……………………..……………… 213-219 Section II – Appeal from judgement (“apelação”) ……….……… 219-227 Sub-section I – Filing and effects of the appeal………………………….………… 219-221 Sub-section II – Forwarding the records of the appeal …….……………………… 221-222 Sub-section III – Hearing of the appeal…………………….….…………………… 222-227 Section III – Appeal to supreme court (‘revista’) …….……….……. 227-230 Sub-section I – Presentation of appeal and forwarding the appeal papers….………. 227-229 Sub-section II – The decision of the appeal…………………….……….………..… 229-230 Section IV – Appeal from order (“agravo”) …………….…………… 231-241 Sub-section I – Appeal from order filed in the first instance……….……………… 231-238 Division I – Filing of appeal and effects of stay of the operation of the impugned judgment.………………………………………… 231-234 Division II – Forwarding of the appeal to the appellate court………….……..… 234-237 Division III – Hearing of the appeal……………………..……………………… 237-238 Sub-section II – Appeal from order filed before the appellate court…….…….…… 239-241 Division I – Presentation of the appeal, object and effect of the appeal as to the stay of operation…….……………….………… 239-240 Division II – Forwarding the appeal…………….…………………….………… 240-241 Division III – Hearing of appeal………….……………………………….…….. 241 xxxi Contents Articles Page Nos. Section V – Appeal to the full court…………………….………… 241-244 Section VI – Revision…………………….……………………… 244-246 Section VII – Objection by third party…………………….…… 246-247 Sub-title III – Summary proceedings…………………….…………………. 248-251 Sub-title IV – Concise proceedings ……………………………….….……. 251-252 TITLE III (801-943) 252-297 Execution proceedings Sub-title I – General provisions…………………….…………………….… 252-255 Sub-title II – Execution for payment of an amount which is certain……….. 255-293 Chapter I – Ordinary procedure…………………………….……………… 255-293 Section I – Summons and opposition……………………………. 255-258 Section II – Attachment…………………………………….…… 259-273 Sub-section I – Assets which may be attached…………………….…………… 259-263 Sub-section II – Indication of assets for attachment…………………….……… 263-265 Sub-section III – Attachment of immovables assets…………………….……... 265-268 Sub-section IV – Attachment of the moveable assets…………………….……. 268-270 Sub-section V – Attachment of credits or rights…………………….……….… 270-273 Section III – Notice to the creditors and verification of the credits……...… 273-276 Section IV – Payment…………………….……………………… 276-289 Sub section I – Modes of payment…………………….……………………..… 276 Sub-section II – Delivery of money or of certificate…………………………… 276 Sub-section III – Award…………………….……………………………...….... 277-279 Sub section IV – Sale…………………………………………………….……... 279-289 Division I – Kinds of sale…………………….……………………………… 279 Division II – Extra judicial sale…………………………………….………... 279-281 Division III – Judicial sale…………………….……………………………... 281-286 Division IV – Common provisions…………………….…………………….. 286-289 xxxii Contents Articles Page Nos. Section V – Remission…………………….……………………… 289-290 Section VI – Extinction and annulment of the execution……… 290-292 Section VII – Appeals…………………….…………………… 292-293 Chapter II – Summary execution proceedings………………….……..…… 293 Chapter III – Concise proceeding…………………….…………………….. 293 Sub-title III – Execution for the delivery of the specific things…………….. 294-295 Sub-title IV – Execution for doing or abstaining…………….……………… 295-297 TITLE IV (944-1560) 297-487 Special proceedings Chapter I – Interdictions…………………….………………………….…… 297-307 Section I – Interdiction due to dementia, or due to deaf-dumbness… 297-303 Section II – Interdiction on account of prodigality…………..…….. 303-304 Section III – Restraint on parental power or of guardianship functions 304-307 Chapter II – Termination of the tenancy and of the share cropping agreement 307-317 Section I – Remedies available to the landlord………….………. 307-312 Section II – Remedies available to the tenant……………………… 312 Section III – Eviction, affixation of placards and reoccupation through order of the court………………….………….………. 313-315 Section IV – Deposit of Rents ………………………….………… 315-317 Chapter III – Redemption of the mortgage and extinction of the privileges… 317-320 Chapter IV – Sale and award of the pledged goods………………………….. 320-321 Chapter V – Rendering of accounts…………………….……………………. 321-325 Section I – Accounts in general…………………….……………… 321-323 Section II – Accounts of guardian (tutor), of the curator or administrator in the case of prodigality and court receiver…….. 323-325 Chapter VI – Payment in the court…………………….…………….……… 325-329 Chapter VII – Possessory remedies……………………………….………… 330-333 xxxiii Contents Articles Page Nos. Section I – Possessory suits………………………….…………. 330-331 Section II – Third party objections…………………….……… 331-333 Chapter VIII – Possession or delivery through court……………………… 334-335 Chapter IX – Suits for arbitrament…………………….…………………… 336-340 Chapter X – Reconstruction of credit instruments of the files and books 340-345 Section I – Reconstruction of credit instruments…………….… 340-342 Section II – Reconstruction of files…………………….……… 342-344 Section III – Reconstruction of books…………………….…… 344-345 Chapter XI – Appeals against orders passed by conservators, notaries and other public servants…………………….…… 345-346 Chapter XII – Suit for loss and damages against judges and Public Ministry… 347-349 Chapter XIII – Review and confirmation of foreign judgments………….. 349-351 Chapter XIV – Justification of the absence and of the status of heir………. 351-356 Chapter XV – Special execution for maintenance…………………………. 356-357 Chapter XVI – Liquidation of assets…………………….………………… 357-418 Section I – Winding up at instance of the shareholders………… 357-359 Section II – Liquidation for the benefit of the state…………… 360-361 Section III – Liquidation for the benefit of creditors ……………… 362-418 Sub-section I – Declaration of insolvency at the instance of the creditors……... 362-367 Sub-section II – Conservatory measures…………………………..….………… 367-368 Sub-section III – Effect of insolvency…………………….……………….…… 368-372 Division I – Effects of insolvency in relation to the insolvent and to his creditors……………………………………………… 368-371 Division II – Effects of insolvency in relation to the acts which are prejudicial to the estate…………………………………..… 371-372 Sub section IV – Administration of the bankruptcy estate ……………………... 372-374 Sub-section V – Verification of debts …………………….…………………..… 374-381 Sub-section VI – Appreciation and liquidation of the assets……………….…… 381-385 xxxiv Contents Articles Page Nos. Division I – Appreciation of the assets………………….………….………… 381-382 Division II – Liquidations of the assets…………………….………………… 382-385 Sub-section VII – Payment to the creditors…………………….……………...… 385-387 Sub-section VIII – Accounts of the administration…………………….………… 387-388 Sub-section IX – Preventive remedies to suspend the insolvency…………..…… 388-403 Division I – Insolvency composition…………………….…………………… 388-400 Sub-division I – General provisions…………………….………………………… 388-391 Sub-division II – Preventive composition…………………….………………...… 392-397 Sub-division III – Suspensive composition ………………………………………. 397-399 Sub-division IV – Annulment and rescission of the composition………………… 399-400 Division II – Agreement amongst creditors…………………….………….… 400-402 Division III – Moratorium…………………….……………………………… 403 Sub-section X – Classification of bankruptcy…………………….……………… 403-407 Sub-section XI – End of the interdiction and rehabilitation of the bankrupt…….. 407-408 Sub-section XII – Special provisions in relation to the societies………………… 408-411 Sub-section XIII – Specialties of the bankruptcies of small businessman………... 412-414 Sub section XIV – Final provisions…………………….………………..………. 414-415 Sub section XV – Insolvency of non businessman……………………………..… 415-418 Chapter XVII – Inventory…………………….………………………….…… 418-449 Section I – Declarations of the administrator, summons to the parties, objections………………………………………..… 418-422 Section II – List of assets, appointment of appraisers, appraisal description……………………………………………. 422-427 Section III – Conference of the parties…………………….……… 427-432 Section IV – Second appraisal, licitations…………………….…… 432-436 Section V – Partition…………………….………………………… 436-441 Section VI – Amendment and rescission of the partition………… 441-442 xxxv Contents Articles Page Nos. Section VII – General provisions……………………….………….… 443-446 Section VIII – Proceedings incidental to the inventory……….… 446-448 Section IX – Partition of properties in special cases………………. 448-449 Chapter XVIII – Voluntary jurisdiction proceedings………….…………..…. 449-487 Section I – General provisions…………………….…….…………… 449-450 Section II – Provisions regarding children and spouses……….………...…… 450-457 Sub-section I – Provisions relating to children….…………….…………….…… 450-455 Sub-section II - Legal measures concerning spouses…….…….………………… 455-457 Section III – Division and separation by mutual consent…….……… 457-458 Section IV – Consent through court ……………………….……… 459 Section V – Alienation or long lease of dowry assets …….………… 459- 462 Section VI – Sale, emphyteutic lease or creation of encumbrance on assets belonging to legally disabled or absentee person….……… 462-463 Section VII – Council of the family and for guardianship……….……..…… 463-467 Section VIII – Verification of pregnancy…………………….…… 467 Section IX – Protective measures and provisional curatorship of the assets of the absentee……………….….…………….…….…. 467-469 Section X – Judicial leases…………………….….……………….………... 469 Section XI – Notice for pre-emption……………….……………… 470-473 Section XII – Estate in abeyance……………………….…………. 473-474 Section XIII – Executorship …………………….………….…… 474-475 Section XIV – Sale of assets by the executor…………………….…. 475-476 Section XV – Exercise of the right of the shareholders of the company 476-483 Sub-section I – Judicial inquiries………………………………………………... 476-477 Sub-section II – Removal of the administrator………………….………….…… 478 Sub-section III – Convening the meeting and assembly of the share holders…… 478 Sub-section IV – Reduction of capital of the company………………….……… 479 xxxvi Contents Articles Page Nos. Sub-section V – Endorsement, conversion and deposit of the shares and obligations………………….….……………….………...... 479-481 Sub-section VI – Examination of the books and documents….………….……… 481-482 Sub-section VII – Installation of the board of the company….…………………. 482-483 Section XVI – Measures connected with ships or their cargo…… 483-484 BOOK IV (1561-1580) 487-492 Arbitral tribunal TITLE I (1561-1576) 487-491 Voluntary arbitral tribunal Chapter I – Arbitration agreement and arbitration clause….……………….… 487-488 Chapter II – Arbitrators ….……………….……….……………….………… 488-489 Chapter III – Procedure ….……………….……….……………….………… 489-490 Chapter IV – Arbitral award….………………….……………….……….…... 490-491 Chapter V – Appeals….……………….………….……………….……… 491 TITLE II (1577-1580) 491-492 Statutory arbitral tribunal xxxvii PORTUGUESE CODE OF CIVIL PROCEDURE, 1939 DETAILED INDEX OF ARTICLES Page Nos. BOOK I 3 ACTION TITLE I 3 ACTION IN GENERAL CHAPTER I 3 BASIC PROVISIONS Article 1 - Bar on restitution by force 3 Article 2 - Co-relation between right and remedy 3 Article 3 - Necessity of petition and defence 4 Article 4 - Types of actions and their purpose 4 CHAPTER II 5 PARTIES SECTION I 5 JUDICIAL PERSONALITY AND JUDICIAL CAPACITY Article 5 - Concept and measure of judicial personality 5 Article 6 - Judicial personality without juridical personality 5 Article 7 - Judicial personality of branch offices 5 Article 8 - Personality of irregular societies 5 Article 9 - Concept and measure of Judicial capacity 6 Article 10 - Representation of persons without legal capacity 6 Article 11 - Appointment of representative 6 Article 12 - Powers of the guardian and the curator 7 Article 13 - Judicial capacity of minors of more than 14 years and those interdicted for prodigality 7 Article 14 - Representation of persons disabled from receiving summons or notice 7 Article 15 - Defence of the absentee and the legally disabled by the Public Ministry 8 Article 16 - Representation of uncertain persons 8 Article 17 - Husband’s capacity to institute proceedings 8 Article 18 - Capacity of wife to institute proceedings 9 Article 19 - Judicial capacity of spouses to be proceeded against 9 Article 20 - Judicial capacity of spouses after separation 10 Article 21 - Representation of the State 10 Article 22 - Representation of collective persons 10 Article 23 - Representation of entities without judicial personality 11 Article 24 - Effect of absence of judicial personality, capacity and of irregular representation 11 Article 25 - Lack of authority or resolution 11 Article 26 - Absence of marital consent 12 xxxviii Page Nos. SECTION II 12 LEGAL STANDING TO SUE OR TO BE SUED Article 27 - Concept of legal standing – Right to sue or be sued 12 Article 28 - Joinder of parties: voluntary and necessary - Necessary and proper parties 12 Article 29 - Joinder of Petitioners/Plaintiffs and of Respondents/Defendants 13 Article 30 - Joinder of causes of action 13 Article 31 - Joinder of parties in relation to an action 14 SECTION III 14 REPRESENTATION OF PARTIES BEFORE THE COURT Article 32 - Who can represent in Court 14 Article 33 - Cases in which appointment of advocate is compulsory 14 Article 34 - Cases in which appointment of advocate is not necessary 15 Article 35 - How authority to represent in Judicial proceedings is to be granted 15 Article 36 - Contents and scope of Judicial mandate 15 Article 37 - Scope of power of attorney 15 Article 38 - Specific powers required for admitting, relinquishing or settling claim 15 Article 39 - Binding effect of admission by representative 16 Article 40 - Revocation and relinquishment of mandate 16 Article 41 - Absence, insufficiency and irregularity of mandate 16 Article 42 - Legal representation as part of administration of affairs 17 Article 43 - Expert assistance to lawyers 17 Article 44 - Provision of legal aid 17 TITLE II 18 EXECUTION CHAPTER I 18 EXECUTABLE DOCUMENT Article 45 - Need for an executable document 18 Article 46 - Kinds of executable documents 18 Article 47 - Requirement for execution of judgement 18 Article 48 - Execution of Orders 19 Article 49 - Execution of arbitration awards 19 Article 50 - Execution of Foreign Judgement 19 Article 51 - Execution of public deeds 19 Article 52 - Executability of negotiable instrument and private writings 19 Article 53 - Cumulation of executions 20 Article 54 - Executablity of certificates extracted from inventories 20 CHAPTER II 21 PARTIES Article 55 - Legal standing (locus standi) of decree holder and judgement debtor 21 Article 56 - Habilitation of judgement debtor and decree holder 21 Article 57 - Executability of Judgement against third parties 21 Article 58 - Joint application for execution 22 xxxix Page Nos. Article 59 - Legal standing of Public Ministry as executor 22 Article 60 - Compulsory representation through advocate 22 Article 61 - Powers of privileged or preferred creditor 22 BOOK II 25 JURISDICTION AND PREVENTION OF BIAS CHAPTER I 25 GENERAL PROVISIONS AS TO JURISDICTION Article 62 - International Jurisdiction and internal jurisdiction – requisite conditions 25 Article 63 - Law regulating jurisdiction 25 Article 64 - Change of forum prohibited 25 CHAPTER II 26 INTERNATIONAL JURISDICTION Article 65 - Requisites for international jurisdiction 26 CHAPTER III 26 INTERNAL COMPETENCE SECTION I 26 JURISDICTION AS TO SUBJECT-MATTER Article 66 - Jurisdiction of ordinary courts 26 Article 67 - Court of judicial division is the ordinary court 26 SECTION II 27 PECUNIARY JURISDICTION Article 68 - Pecuniary jurisdiction of subordinate courts 27 Article 69 - Pecuniary jurisdiction of Court of judicial division 27 SECTION III 28 COMPETENCE WITH REFERENCE TO THE HIERARCHY (SUBORDINATION OF COURTS) Article 70 - Appellate and hierarchical Court 28 Article 71 - Jurisdiction of High Court 28 Article 72 - Jurisdiction of the Supreme Court 28 SECTION IV 29 TERRITORIAL JURISDICTION Article 73 - Local jurisdiction for immovables (“Forum rei sitae”) 29 Article 74 - Local jurisdiction for enforcement of contracts 29 Article 75 - Divorce and separation 30 x1 Page Nos. Article 76 - Suit for fees 30 Article 77 - Inventory and Habilitation of heirs 30 Article 78 - Regulation and sharing of major ship repairs 30 Article 79 - Losses and damages for collision of ships 31 Article 80 - Salaries for salvaging or assistance to ships 31 Article 81 - Extinguishment of privileges over ships 31 Article 82 - Declaration of Bankruptcy 31 Article 83 - Preventive Injunctions, Injunctions to maintain status and anticipatory steps 31 Article 84 - Sundry notices 32 Article 85 - General rule for territorial jurisdiction – place of residence of the respondent 32 Article 86 - More than one respondent 33 Article 87 - Appellate jurisdiction 33 Article 88 - Suits in which the civil judge, his wife or descendant or ascendant is party 33 Article 89 - Suits in which the lower court judge, his wife, descendant or ascendant are party 34 SECTION V 34 SPECIAL PROVISIONS AS TO EXECUTIONS Article 90 - Jurisdiction for execution based on judgment 34 Article 91 - Jurisdiction for execution of judgement pronounced by Superior courts 34 Article 92 - Execution for costs, fines and compensation 35 Article 93 - Execution for costs, fine and compensation imposed by superior courts 35 Article 94 – Jurisdiction for execution founded on foreign Judgment or on document other than a judgment 35 Article 95 – Jurisdiction of Subordinate Judges 36 CHAPTER IV 36 EXTENSION AND CONSEQUENTIAL JURISDICTION Article 96 – Extension of jurisdiction : incidental questions raised by the respondent 36 Article 97 – Incidental questions of Criminal or Administrative nature 36 Article 98 – Jurisdiction to decide questions raised in counter-claim 36 Article 99 – Choice of Court by agreement 37 Article 100 – Jurisdiction by agreement : when valid 37 CHAPTER V 37 VIOLATIONS OF JURISDICTION SECTION I 37 ABSOLUTE LACK OF JURISDICTION Article 101 - Absolute Lack of Jurisdiction 37 Article 102 – Objections as to jurisdiction – Suo moto cognizance 37 Article 103 – Stage for objecting to jurisdiction 38 Article 104 – Decision on jurisdiction in the Curative Order – its binding force 38 Article 105 – Effect of total lack of jurisdiction 38 Article 106 – Binding effect of the decision on absolute lack of jurisdiction 39 Article 107 – Final determination as to Jurisdiction of Court 39 x1i Page Nos. SECTION II 39 RELATIVE INCOMPETENCE Article 108 – Technical lack of Jurisdiction - Irregularity in Jurisdiction 39 Article 109 – Procedure for raising technical lack of jurisdiction 39 Article 110 – Mere raising of objection to jurisdiction will not suspend proceedings 40 Article 111 – Procedure where objection is not contested or contested 40 Article 112 – In case there are many respondents 40 Article 113 – Lack of jurisdiction based on an attempt to avoid forum 40 Article 114 – Time limit for objection to jurisdiction in Appellate Court 40 SECTION III 41 CONFLICTS OF JURISDICTION AND COMPETENCE Article 115 – Distinction between conflict of jurisdiction and conflict of competence 41 Article 116 – Court of lowest grade to try 41 Article 117 – Who may seek a decision on jurisdiction 41 Article 118 – Suspension in limine or notice to reply 41 Article 119 – Reply 42 Article 120 – Production of evidence and subsequent stages 42 Article 121 – Applicability to other conflicts to be resolved by the High Court or Supreme Court 42 CHAPTER VI 43 ASSURANCES OF IMPARTIALITY SECTION I 43 IMPEDIMENTS - DISQUALIFICATION DUE TO CONFLICT OF INTEREST Article 122 – Reasons for disqualification of judge 43 Article 123 – Duty of disqualified Judge 44 Article 124 – Cases of disqualification in Judicial benches 44 Article 125 – Disqualification of officer of Public Ministry and of the staff of the Court 44 SECTION II 45 RECUSAL AND LACK OF CONFIDENCE Article 126 – Request for recusal by judge 45 Article 127 – Grounds for suspicion against judge 45 Article 128 – Time limit for raising suspicion 46 Article 129 – How to raise and pursue suspicion 47 Article 130 – Judgment on the question of suspicion 47 Article 131 – Suspicion against Judge of High Court or Supreme Court 47 Article 132 – Effect of the plea on the proceedings 48 Article 133 – Consequence of recusal or suspicion being accepted 48 Article 134 – Grounds for suspicion against staff of Court 48 Article 135 – Time limit to raise suspension 48 Article 136 – Processing of the plea 49 Article 137 – Effect of plea being allowed 49 x1ii Page Nos. BOOK III 53 PROCEEDINGS TITLE I 53 GENERAL PROVISIONS CHAPTER I 53 PROCEDURAL ACTS SECTION I 53 PROCEDURAL ACTS IN GENERAL SUB-SECTION I 53 COMMON PROVISIONS Article 138 – Bar on unnecessary acts and mode thereof 53 Article 139 – Court language 53 Article 140 – Translation of documents written in foreign languages 53 Article 141 – Means of expression and communication of deaf and dumb 54 Article 142 – Law regulating procedural acts 54 Article 143 – When judicial acts may not be performed 54 Article 144 – Time limits for judicial acts 54 Article 145 – Continuity of time 54 Article 146 – Dilatory or peremptory time limit - Just cause 54 Article 147 – Time for Judicial acts cannot be extended 55 Article 148 – Counting of period 55 Article 149 – Where judicial acts are to be practiced 55 SUB-SECTION II 56 ACTS OF PARTIES Article 150 – Who can apply 56 Article 151 – Definition of pleadings 56 Article 152 – Need for duplicate copies 56 Article 153 – Purpose of arguments 56 Article 154 – General rule as to judicial time limit 56 Article 155 - Misdemeanour by advocates or law officers 57 SUB-SECTION III 58 JUDICIAL ACTS Article 156 – Duty to decide and carry out decisions of higher courts – Judgment 58 Article 157 – Formal requisites of judgment and order 58 Article 158 – Duty to pass speaking orders 58 Article 159 – General time limit for orders 59 Article 160 – Time limit for say x1ii Page Nos. SUB-SECTION IV 59 ACTS OF THE REGISTRY Article 161 – Who should write records and minutes 59 Article 162 – Formal requirements of records and proceedings 59 Article 163 – Comprehensiveness of records 59 Article 164 – Signature on records and proceedings 59 Article 165 – Initials on the pages of the file 60 Article 166 – General time limit for office to process matters 60 Article 167 – Inspection in the office of pending of closed files 60 Article 168 – Right of advocates to inspect files at their residence 60 Article 169 – Register of handing over files to advocates 61 Article 170 – Penalty for failure to return file within time 61 Article 171 – Special provision for inspecting file at home instead of in the Court office 61 Article 172 – Examination of file by Public Ministry and Advocates appointed by Court 61 Article 173 – Inspection at home of closed proceedings 62 Article 174 – Duty to issue certificates 62 Article 175 – Time limit for issue of certified copies 62 SUB-SECTION V 63 NOTIFICATION OF JUDICIAL PROCEEDINGS Article 176 – Issuance of writ of summons, letter, official letter or telegram to requisition judicial acts 63 Article 177 – To whom the letters should be addressed – Duty to comply 63 Article 178 – Content of letter 64 Article 179 – Enclosing of autographs or other plan with letter 64 Article 180 – Time limits 64 Article 181 – Time limit for compliance with the letters 65 Article 182 – Dispatch and delivery of letters 65 Article 183 – Effect of letter of request on progress of proceedings 66 Article 184 – Valid reasons to refuse compliance with letter of request 66 Article 185 – Legitimate reasons for refusal to comply with letters rogatory 66 Article 186 – Procedure for compliance with letters rogatory 67 Article 187 – Powers of recipient Court 67 Article 188 – Return of letter of request after compliance 67 Article 189 – Signature on the writs 67 Article 190 – Cases in which writ may not be issued 67 Article 191 – Contents of writ 67 Article 192 – Performance of acts delegated to the subordinate judge or justice of peace 68 SUB-SECTION VI 68 NULLITY OF ACTS Article 193 – Defective Petition 68 Article 194 – Cases in which the entire proceedings subsequent to petition are annulled 68 Article 195 – When the service is taken as not effected 69 Article 196 – Curing of nullity for lack of service 69 Article 197 – Consequences of lack of service where there are served respondents 69 x1iv Page Nos. Article 198 – Nullity of service 70 Article 199 – Consequences of error in the form of proceedings 70 Article 200 – Absence of file inspection by Public Ministry 70 Article 201 – General rule as to nullity of procedural acts 71 Article 202 – Nullities of which Court may take cognizance on its own 71 Article 203 – Who is precluded from pleading nullity 71 Article 204 – Time upto which nullity may be argued 71 Article 205 – General rule as to objection 71 Article 206 - At what point the Court can take cognizance of the main nullities 72 Article 207 – General rule as to Judgment 72 Article 208 – Null acts cannot be reopened 72 SECTION II 72 SOME SPECIAL ACTS SUB-SECTION I 72 ALLOTMENT OF CASES DIVISION I 72 GENERAL PROVISIONS Article 209 – Purpose of allotment 72 Article 210 – Rules as to failure, irregularity or error in distribution 73 DIVISION II 73 PROVISIONS RELATING TO THE FIRST INSTANCE Article 211 – Papers subject to distribution in the Court of first instance 73 Article 212 – Acts which do not depend on distribution 73 Article 213 – Condition necessary for distribution 74 Article 214 – Day and time of allotment – Persons who intervene 74 Article 215 – Classification and enumeration of papers 74 Article 216 – Drawing of Lots 74 Article 217 – Definite Allotment 74 Article 218 – Record of outcome 75 Article 219 – Signature, publication and registration 75 Article 220 – Cancellation of distribution 75 Article 221 – Correction of distribution 75 Article 222 – Kinds of proceedings in distribution 76 DIVISION III 76 PROVISIONS RELATING TO SUPERIOR COURTS Article 223 – When distribution should take place – who intervenes 76 Article 224 – Categories in High Court 77 Article 225 – Categories in the Supreme Court 77 Article 226 – How distribution is done 77 Article 227 – Second distribution 78 x1v Page Nos. SUB-SECTION II 78 SUMMONS AND NOTICES DIVISION I 78 GENERAL PROVISIONS Article 228 – Purpose of summons and of notice 78 Article 229 – Need for prior orders 79 Article 230 – Summons and Notices to Diplomatic Agents 79 Article 231 – Bar on summoning on certain days 79 Article 232 – Need for witnesses 79 DIVISION II 79 SERVICE OF SUMMONS Article 233 – On whom summons is to be served 79 Article 234 – Where should summons be served 80 Article 235 – Service in case of resistance to the entry of the official in the house of the party 80 Article 236 – Summons where the party is unable to receive it 81 Article 237 – Absence of party to be summoned at uncertain place 82 Article 238 – False address – House closed and uninhabited 82 Article 239 – Absence of person to be summoned at uncertain place 83 Article 240 – Service at fixed time 83 Article 241 – Mode of service if there is evasion 83 Article 242 – Formalities for service on person 84 Article 243 – Formalities for service on a person other than the person summoned 84 Article 244 – Service on person residing abroad 85 Article 245 – Service of defendant taken as residing abroad when the letter is returned 85 Article 246 – Summons through Consulate 86 Article 247 – Summons by publication 86 Article 248 – Form of service by publication for uncertainty of place 86 Article 249 – Contents of the notices 87 Article 250 – How the time for defence is counted in case of service by publication 87 Article 251 – Form of service by publication due to uncertainty of person 87 Article 252 – Filing of the notice and publication in the record 88 Article 253 – Retroactive effect of service delayed for no fault of Petitioner 88 DIVISION III 89 NOTICES Article 254 – Notice to parties when they have appointed attorneys 89 Article 255 – Notice to parties when they have chosen domicile 89 Article 256 – Personal notification 90 Article 257 – Sundry notices and notices to non parties 90 Article 258 – Notice to public servants or employees of public enterprises 90 Article 259 – Notice of orders or judgments 91 Article 260 – Notice for personal appearance 91 Article 261 – Formalities for sundry notices 91 Article 262 – Bar on opposition to sundry notices 91 Article 263 – Notice for revocation or relinquishment of Power of Attorney 92 x1vi Page Nos. CHAPTER II 92 PROCEEDINGS SECTION I 92 COMMENCEMENT AND PROSECUTION OF THE PROCEEDINGS Article 264 – Duty to promote prosecution – Duty of probity on parties – Power of Judge to ascertain the truth 92 Article 265 – Duty of parties to co-operate 92 Article 266 – Power of Judge to render prompt Justice 93 Article 267 - When the case is deemed to be filed 93 Article 268 – Principle of stability of proceedings 93 Article 269 – Necessary alteration due to joinder of new respondent 93 Article 270 – Other necessary modifications 93 Article 271 – ‘Locus standi’ of transferor – Joinder of transferee 93 Article 272 – Alternative prayers 94 Article 273 – Ancillary reliefs 94 Article 274 – Aggregation of reliefs 94 Article 275 – Generalized reliefs 94 Article 276 – Claim for instalment due 95 Article 277 – Amendment of pleadings by consent 95 Article 278 - Amendment of pleadings when there is no consent 95 Article 279 – When counter claim is admissible 95 Article 280 – Consolidation of suits 96 SECTION II 96 STAY OF PROCEEDINGS Article 281 – Grounds for stay of proceedings 96 Article 282 – Stay due to death of party 97 Article 283 – Stay upon death or impediment of attorney 97 Article 284 – Stay by Judge 97 Article 285 – Stay to ensure compliance with Revenue laws 98 Article 286 – Stay to ensure compliance with Revenue laws 98 Article 287 – Duty of Judge for the purpose of stay 98 Article 288 – Effect of stay 98 Article 289 – Vacation of stay 98 SECTION III 99 TEMPORARY SUSPENSION OF PROCEEDINGS Article 290 – Grounds for temporary suspension and its effects 99 Article 291 – How suspension ceases 100 SECTION IV 100 TERMINATION OF PROCEEDINGS Article 292 – Grounds and manner of abatement 100 Article 293 – Grounds for dropping of proceedings 100 Article 294 – Consequences and effects of dropping proceedings 100 Article 295 – Agreement to refer to Arbitration 101 x1vii Page Nos. Article 296 – Abandonment of proceedings 101 Article 297 – Abandonment of appeals 102 Article 298 – Liberty to withdraw, admit, claim and compromise 102 Article 299 – Effect of admission and compromise 102 Article 300 – Effect of withdrawal 102 Article 301 – Protection of the rights of respondent 102 Article 302 – Restriction on the rights of representatives of collective persons, incapable persons and absentees 103 Article 303 – Admission, abandonment and compromise in case of joinder of parties 103 Article 304 – Limitations on admission, abandonment and compromise 103 Article 305 – How admission, abandonment, compromise is to be made 103 Article 306 – Revocation of admission, abandonment or compromise 103 CHAPTER III 104 PROCEDURAL STAGES SECTION I 104 GENERAL PROVISIONS Article 307 – Mode of applying and means of proof 104 Article 308 – Time limit to file Defence statement and indication of means of proof 104 Article 309 – Limit on number of witnesses 104 SECTION II 104 VALUATION OF THE CAUSE Article 310 – Valuation and its consequences 104 Article 311 – Valuation for money matters and eviction cases 105 Article 312 – Valuation in case of cumulation of prayers and other types of prayers 105 Article 313 – Time to determine value – Valuation of counter claim 105 Article 314 – Valuation for future rents 105 Article 315 – Valuation shall depend on value of juridical act 105 Article 316 – Valuation based on value of thing 106 Article 317 – Valuation for status or Incorporeal rights 106 Article 318 – Rights of parties to indicate value – how exercised 106 Article 319 – Will of parties and judicial intervention in fixing valuation 106 Article 320 – Valuation where neither will of parties nor power of judge are adequate 107 Article 321 – Valuation in extreme cases 107 Article 322 – Valuation of incidental proceedings 107 Article 323 – Valuation of Preventive and Mandatory Injunction proceedings 107 Article 324 – Effect of valuation on jurisdiction and type of proceedings 108 SECTION III 108 INTERVENTION BY THIRD PARTY SUB SECTION I 108 IMPLEADMENT OF A THIRD PARTY Article 325 – Impleadment of true owner 108 Article 326 – Limitation and notice 109 Article 327 – Acceptance or refusal by Plaintiffs – consequences 109 x1viii Page Nos. Article 328 – Consequence of the stand taken by the person named 109 Article 329 – Indication of Defendant where act is done for another 110 Article 330 – Nomination as Plaintiff 110 Article 331 – Time limit, notice and summons 110 Article 332 – Where the nominee refuses to join as Plaintiff 110 Article 333 – Where the impleader accepts 111 Article 334 – Nomination by the Impleader 111 Article 335 – Nomination as Defendant 111 Article 336 – Time limit for nomination – summons 112 Article 337 – Time for defence in cases coming under Article 335, clauses 1, 2 and 3 112 Article 338 – Procedure in cases under Article 335 (4) 112 Article 339 – Consequence of these incidental proceedings on impediment, suspicion and lack of jurisdiction 113 SUB SECTION II 113 ASSISTANCE THROUGH INTERVENTION Article 340 – Meaning and locus standi 113 Article 341 – Intervention and exclusion 114 Article 342 – Position of the Assistant – General powers and duties 114 Article 343 – Deposition by the Assistant 114 Article 344 – Use of oral evidence 114 Article 345 – Assistant and admission, abandonment or compromise 114 Article 346 – Effect of Judgment on Assistant 114 SUB SECTION III 115 OPPOSITION Article 347 – Meaning of opposition. Till when admissible 115 Article 348 – Opposition by application 115 Article 349 – Rejection of opposition 115 Article 350 – Position of the Opponent 115 Article 351 – Stand of parties as to opposition 116 Article 352 – Opposition provoked by Defendant 116 Article 353 – Notice to the Opponent 116 Article 354 – Failure by notified party to respond 116 Article 355 – Effect of claim filed by the Opponent on the course of the proceedings 116 SUB-SECTION IV 117 INTERVENTION AS MAIN PARTY Article 356 – Who can intervene as main party 117 Article 357 – Position of the intervenor 117 Article 358 – Till what stage intervention is admissible 117 Article 359 – How the intervenor has to make out his case 117 Article 360 – Challenge to the locus standi of the Intervenor 118 Article 361 – Intervention at initiative of parties 118 Article 362 – Upto when intervention can be called by party 118 Article 363 – Notification of Intervener 118 Article 364 – Binding effect of judgment on notified person 118 x1ix Page Nos. SECTION IV 119 FORGERY SUB - SECTION I 119 FORGERY OF DOCUMENTS Article 365 – Time limit to plead forgery of document 119 Article 366 – Reply to the allegation 119 Article 367 – Effect of reply or its absence 120 Article 368 – Cases in which matter is not proceeded with 120 Article 369 – Procedural steps and Judgment 120 Article 370 – Fine 120 Article 371 – Intervention of Public Ministry 121 Article 372 – Communication to Public Ministry 121 Article 373 – Incidental proceedings of forgery to take in the superior court 121 SUB - SECTION II 121 FORGERY OF JUDICIAL ACTS Article 374 – Time limit to plead forgery in acts 121 Article 375 – Stay of the case 122 SECTION V 122 BRINGING HEIRS ON RECORD (SUBSTITUTION OF PARTIES) Article 376 – Enablement (qualification) of heirs 122 Article 377 – Procedure for enablement (qualification) where locus standi is already acknowledged in a document or in another suit 122 Article 378 – Procedure for qualification in case locus standi is not confirmed 123 Article 379 – Qualification where heirs are not known 124 Article 380 – Identification of successors in case of winding up or liquidation of collective persons 124 Article 381 – Identification of Purchaser or transferee 124 Article 382 – Identification of heirs in higher court 124 SECTION VI 125 LIQUIDATION Article 383 – Quantification of Relief 125 Article 384 – How to quantify 125 Article 385 – Subsequent stages 125 CHAPTER IV 126 PREVENTIVE AND CONSERVATORY PROCEEDINGS SECTION 1 126 GENERAL PROVISIONS Article 386 – Application of rules relating to incidental proceedings 126 Article 387 – Lapse of acts or measures 126 1 Page Nos. Article 388 – Lifting of measures 126 Article 389 – Attachment of proceedings 127 Article 390 – Anticipation of effects on Defendant 127 Article 391 – Preventive measures during pendency of proceedings 127 Article 392 – No second application for interim relief 127 SECTION II 127 PROVISIONAL MAINTENANCE Article 393 – Cases in which provisional maintenance can be sought 127 Article 394 – Provisions for provisional maintenance 128 Article 395 – Consequences of absence from conference 128 Article 396 – Procedure where any steps are sought 129 Article 397 – Service by Public notices 129 Article 398 – Procedure for change of alimony 129 Article 399 – Alimony by proceedings incidental to main cause in superior court 129 SECTION III 130 PROVISIONAL RESTORATION OF POSSESSION Article 400 – When and how provisional restoration of possession is possible 130 Article 401 – Appeal from Order restoring possession 130 Article 402 – Rejection of relief not bar for possessory action 130 SECTION IV 130 SUSPENSION OF THE RESOLUTIONS OF A SOCIETY Article 403 – Requirements for suspension of society resolutions 130 Article 404 – Objection and decision 131 SECTION V 131 PREVENTIVE MEASURES Article 405 – Grounds for preventive reliefs 131 Article 406 – Procedure for preventive measures 131 Article 407 – Preventive relief in suit for immovables 131 Article 408 – Receivership 131 SECTION VI 132 SEIZURE SUB - SECTION I 132 GENERAL PROVISIONS Article 409 – When seizure can be sought 132 Article 410 – Procedure to order seizure 133 Article 411 – Guarantees to be furnished by applicant 133 Article 412 – How seizure is effected 134 Article 413 – Effects of seizure 134 Article 414 – Objections from opposite party 134 Article 415 – Purpose and procedure for objections and Compensation 134 1i Page Nos. SUB - SECTION II 135 SPECIAL PROVISIONS RELATING TO ATTACHMENT AGAINST TREASURERS, CASHIERS OR DEBTORS OF THE GOVERNMENT OR OF LOCAL AUTHORITIES Article 416 – Seizure on account of defalcation by public officials 135 Article 417 – Seizure due to defalcation by representatives and sub lessees 135 Article 418 – Imprisonment of guilty person 135 Article 419 – Special procedure of seizure when the settlement is with the Accounts Tribunal 135 SECTION VII 136 DENUNCIATION OF NEW WORK (EMBARGO) Article 420 – Objection to new construction 136 Article 421 – Objection by Municipalities 136 Article 422 – Works not subject to objection 136 Article 423 – How to file the objections 136 Article 424 – Undertakings from applicant 136 Article 425 – Objection from the opposite party 136 Article 426 – How objection is raised or ratified 137 Article 427 – When can the work be allowed to continue 137 Article 428 – Action in case of violative further construction 138 SECTION VIII 138 AFFIXATION OF THE SEALS, ENLISTING AND APPOINTMENT OF RECEIVER Article 429 – Grounds for sealing and enrolment 138 Article 430 – Who may apply - Security to be furnished 138 Article 431 – Procedure for ordering preventive measures 139 Article 432 – How enlisting is done 139 Article 433 – Imposition of seals 140 Article 434 – Receiver 140 Article 435 – Objection from the possessor or holder of assets 140 SECTION IX 140 SECURITY BONDS SUB SECTION I 140 FURNISHING OF SECURITY BOND Article 436 – Modes of furnishing bonds 140 Article 437 – Demand to furnish security 141 Article 438 – Procedure where there is no objection 141 Article 439 – Procedure in case of opposition 142 Article 440 – Procedure when only amount is disputed 142 Article 441 – Procedure for voluntary furnishing of security 142 Article 442 – Security in favour of legally disabled persons 142 Article 443 – Security as part of a cause 143 1ii Page Nos. Article 444 – Fixing of security 143 Article 445 – Furnishing security to object to dissolution of legal entity 143 SUB SECTION II 143 REINFORCING SECURITY Article 446 – When reinforcement can be sought 143 Article 447 – Procedure when application is opposed 144 Article 448 – Procedure where objection is only as to value 144 Article 449 – Procedure where there is no opposition 144 Article 450 – Reinforcement of pledge and guarantee 145 Article 451 – Reinforcement of security furnished in Court 145 Article 452 - Reinforcement of security furnished as part of proceedings 145 SECTION X 145 DEPOSITS AND PROTESTS Article 453 – Deposit preparatory to suit 145 Article 454 – Effect of deposit 146 Article 455 – Lodging of protests 146 CHAPTER V 146 COSTS, FINES AND DAMAGES SECTION I 146 COSTS Article 456 – Liability for costs 146 Article 457 – Acts and steps which do not count for costs 146 Article 458 – Costs on Plaintiff 147 Article 459 – Distribution of costs 147 Article 460 – Costs in case of admission, abandonment or compromise 147 Article 461 – Liability of assistant for costs 147 Article 462 – Costs of preventive and conservatory proceedings, conciliation and notifications 148 Article 463 – Payment of legal fees through costs 148 Article 464 – Security of costs 148 SECTION II 148 FINES AND DAMAGES Article 465 – Liability in case of bad faith in litigation – Definition of Bad faith 148 Article 466 – Contents of damages 149 Article 467 – Liability of representative of legally disabled or of collective persons 149 Article 468 – Liability of advocate 149 CHAPTER VI 150 FORMS OF PROCEEDINGS SECTION I 150 COMMON PROVISIONS Article 469 – Common and special proceedings 150 Article 470 – Types of common proceedings 150 1ii Page Nos. SECTION II 150 PROCEEDING FOR DECLARATION Article 471 – Applicability of ordinary, summary and concise 150 Article 472 – Provisions regulating special and summary proceedings 150 Article 473 – Provisions for concise proceedings 151 SECTION III 151 EXECUTION PROCEEDINGS Article 474 – Ordinary, Summary and Concise execution 151 Article 475 – Regulation of various types and forms of execution 151 TITLE II 152 DECLARATORY SUITS SUB TITLE I 152 CONCILIATION Article 476 – Prior attempt at conciliation 152 Article 477 – Application and summons for settlement 152 Article 478 – Subsequent steps 152 Article 479 – Record of conciliation or failure thereof 152 SUB TITLE II 153 ORDINARY PROCEEDING CHAPTER I 153 PLEADINGS SECTION I 153 INITIAL PETITION (PLAINT) Article 480 – Function and purpose of initial petition 153 Article 481 – Dismissal in ‘limine’ 154 Article 482 – Irregular or deficient plaint 154 Article 483 - Issuing of summons 155 Article 484 – Summons to defendant 155 Article 485 – Effect of summons 155 Article 486 – Steps when summons are annulled 155 SECTION II 156 ABSENCE OF THE DEFENDANT Article 487 – Duty of Court where Defendant remains absent 156 Article 488 – Effect of non-appearance 156 Article 489 – Cases in which effect of default does not take place 156 SECTION III 157 WRITTEN STATEMENT 1iv Page Nos. SUB SECTION I 157 GENERAL PROVISIONS Article 490 – Time limit to contest 157 Article 491 – Defence by dispute or by exceptions 157 Article 492 – Requisites of written statement 157 Article 493 – When defences should be set up 157 Article 494 – Position of Defendant as to facts pleaded by Plaintiff 158 Article 495 – Admission or denial of Business name 158 Article 496 – Order in considering defence 159 Article 497 – Time for defence when there are many defendants 159 SUB SECTION II 159 EXCEPTIONS Article 498 – Dilatory and peremptory exceptions 159 Article 499 – Dilatory defences 159 Article 500 – Peremptory defences 160 Article 501 – ‘Lis Pendens’ and ‘Res Judicata’ 160 Article 502 – Requisites of lis pendens and res judicata 160 Article 503 – When lis pendens is to be raised 161 Article 504 – Foreign suit is not relevant 161 Article 505 – Cognizance suo moto 161 SUB SECTION III 161 COUNTER CLAIM Article 506 – Counter claim 161 SECTION IV 161 REPLICATION AND TRIPLICATION (Rejoinder and Sur rejoinder) Article 507 – Purpose of replication 161 Article 508 – Filing of replication 162 Article 509 – Purpose and filing of triplication 162 Article 510 – Reply to Triplication where there is counter claim 162 Article 511 – Position of party as to facts pleaded by opposite party 162 CHAPTER II 162 PRELIMINARY HEARING AND CURATIVE ORDER Article 512 – Instances of Preliminary hearing 162 Article 513 – Sequence of acts in the audience 163 Article 514 – Curative Order 163 Article 515 – Specification and questionnaire 164 Article 516 – Notice to parties for Trial 164 1v Page Nos. CHAPTER III 165 TRIAL SECTION I 165 GENERAL PROVISIONS Article 517 – Facts needing proof 165 Article 518 – Facts which need not be proved or pleaded 165 Article 519 – Onus of proof 165 Article 520 – Doubtful cases 165 Article 521 – Proof of Custom, local or foreign law 165 Article 522 – Right to contest and cross examine 166 Article 523 – Movables or immovables as evidence 166 Article 524 – Duty to co-operate to find truth 166 Article 525 – Anticipated production of evidence 167 Article 526 – Extra processual value of evidence 167 SECTION II 168 DOCUMENTARY EVIDENCE SUB-SECTION I 168 TYPES OF DOCUMENTS AND THEIR PROBATIVE VALUE Article 527 – Kinds of documents 168 Article 528 - Authentic document 168 Article 529 – Types of authentic documents 168 Article 530 – Probative value of authentic documents 168 Article 531 – Third party rights are saved 169 Article 532 – Indispensable nature of authentic documents 169 Article 533 – Defects in authentic documents 169 Article 534 – Falsity of authentic documents 169 Article 535 – Verification of authenticity 169 Article 536 – Definition and probative value of authenticated documents 170 Article 537 – Private documents 170 Article 538 – Disputing the documents 170 Article 539 – Effect of admitting signature 170 Article 540 – Value of signature on request 171 Article 541 – Value of documents not usually signed 171 Article 542 – Probative value of private documents reputed as true 171 Article 543 – Free judicial appreciation of other documents 172 Article 544 – Value of creditor’s notice on the credit instrument 172 Article 545 – Date of private documents in relation to third parties 172 Article 546 – Burden on the person to whom document is attributed 172 Article 547 – Value of photographs of document 172 Article 548 – Reconstruction of documents 172 Article 549 – Legalization of documents issued in foreign country 172 1vi Page Nos. SUB-SECTION II 173 PRODUCTION OF DOCUMENTARY EVIDENCE Article 550 – At what stage documents are to be tendered 173 Article 551 – Notice to opposite party 173 Article 552 – Possibility of using documents in the possession of the Opposite Party 173 Article 553 – Penalty for the party who does not furnish the documents 174 Article 554 – Use of documents in the power of third persons 174 Article 555 – Requisition of documents by Judge 175 Article 556 – Power to refuse irrelevant or unnecessary documents 175 Article 557 – Destiny of documents 175 Article 558 – Sanctions for violation of fiscal laws 176 Article 559 – Copies of illegible documents 176 SECTION III 176 PROOF BY ADMISSION OF THE PARTIES SUB-SECTION I 176 KINDS OF ADMISSION AND ITS PROBATORY FORCE Article 560 – Admission 176 Article 561 – Kinds of admission 177 Article 562 – Judicial admission 177 Article 563 – From whom deposition of party can be sought 177 Article 564 – Facts of which deposition can be sought 177 Article 565 – Probative value of judicial admission 177 Article 566 – Value of deposition of assistant at the request of co-party 178 Article 567 – Revocation of Judicial confession 178 Article 568 – Extra Judicial admission 178 Article 569 – Evidentiary value of extra judicial admission 178 Article 570 – Non retractability of admission 178 Article 571 – Indivisibility of admission 178 SUB SECTION II 179 RECORDING OF DEPOSITION OF PARTY Article 572 – Application for recording 179 Article 573 – Where it is recorded 179 Article 574 – Sanctions for non appearance 179 Article 575 – Order of deposition 180 Article 576 – Oath 180 Article 577 – Interrogation and replies 180 Article 578 – Intervention of advocates 180 Article 579 – Recording of deposition 181 SECTION IV 181 OATH Article 580 – Abolition of oath as a form of evidence 181 1vii Page Nos. SECTION V 181 EVIDENCE BY ARBITRAMENT SUB-SECTION I 181 TYPES OF ARBITRAMENT AND THEIR EVIDENTIARY VALUE Article 581 – Types of arbitrament 181 Article 582 – Evidentiary value of examination and inspection 182 Article 583 – Evidentiary value of assessment 182 SUB-SECTION II 182 EXAMINATION AND INSPECTION Article 584 – Stage upto which examinations and inspection may be sought 182 Article 585 – Framing of queries 183 Article 586 – Appointment of experts 183 Article 587 – Appointment of experts for steps to be taken through letter 184 Article 588 – Impediments 184 Article 589 – Exemptions 185 Article 590 – Recusals 185 Article 591 – Finality of decisions 186 Article 592 – Record of appointment of experts 186 Article 593 – New appointment 186 Article 594 – Experts from outside jurisdiction 187 Article 595 – Experts which Court should appoint 187 Article 596 – Commencement of steps 187 Article 597 – Inspection by experts 187 Article 598 – Fixing time for steps 188 Article 599 – Reply to queries 188 Article 600 – Objections 189 Article 601 – Verification of correctness of plans and other documents finalized by parties 189 Article 602 – Filing of exhibits by experts 189 Article 603 – Examination of handwriting 189 Article 604 – Examination by official scientific agencies 190 Article 605 – Examination by scientific establishment 190 Article 606 – Appearance of experts at hearing 190 SUB-SECTION III 191 VALUATION Article 607 – Legal principles for valuation 191 Article 608 – Who does the valuation 192 Article 609 – Valuation by experts 192 Article 610 – Rectification of valuation 193 Article 611 – Error in calculation 193 Article 612 – Use of the regime of examination and inspection 193 SUB-SECTION IV 193 SECOND ARBITRAMENT Article 613 – Time and purpose of second arbitrament 193 1viii Page Nos. Article 614 – Regime for second arbitrament 193 Article 615 – Value of the second arbitrament 194 SECTION VI 194 JUDICIAL INSPECTION Article 616 – Purpose 194 Article 617 – Intervention of parties 194 Article 618 – Technical assistance 194 Article 619 – Inspection report 194 SECTION VII 195 ORAL EVIDENCE SUB-SECTION I 195 ADMISSIBILITY AND VALUE OF ORAL EVIDENCE- WHO MAY BE A WITNESS Article 620 – Admissibility 195 Article 621 – Limits of oral evidence 195 Article 622 – Who may be a witness 195 Article 623 - Who may not be witnesses 195 Article 624 – Legal incapacity 195 Article 625 – Probative value 196 SUB-SECTION II 196 PRODUCTION OF ORAL EVIDENCE Article 626 – List of witnesses 196 Article 627 – Mentioning the judge as witness 196 Article 628 – Place of recording evidence 197 Article 629 – Examination at the site 197 Article 630 – Examination by letter 197 Article 631 – Persons to be examined at their residence 197 Article 632 – Examination of persons disabled by illness 198 Article 633 – Fixing the number of witness to be examined each day 199 Article 634 – Consequences of absence 199 Article 635 – Maximum number of witnesses which parties can examine 200 Article 636 – Number of witnesses as to each fact 200 Article 637 – Facts over which oral evidence is not admissible 200 Article 638 – Order of depositions 200 Article 639 – Oath and preliminary interrogation 201 Article 640 – Objections to the admissibility of a witness 201 Article 641 – Mode of deposition 201 Article 642 – Applicability of provisions relating to deposition by party 202 Article 643 – Refutation 202 Article 644 – Confrontation of witnesses 203 Article 645 – Travel expenses and compensation 203 Article 646 – Summoning by the Court 203 1ix Page Nos. CHAPTER IV 204 HEARING OF THE SUIT Article 647 – Arguments and Judgment 204 Article 648 – Time for study of file 204 Article 649 – Study of file by judges 204 Article 650 – Requisition or designation of technical expert 204 Article 651 – Powers of Presiding Judge 204 Article 652 – Adjournments 205 Article 653 – Procedure at the hearing 205 Article 654 – Requirement of full attendance by all judges 207 Article 655 – Freedom in adjudication 207 Article 656 – Continuity of hearing 207 Article 657 – Secret hearing 208 CHAPTER V 208 JUDGMENT SECTION I 208 PREPARATION OF THE JUDGMENT Article 658 – Supervision exercised by judge 208 Article 659 – Preparing judgment :- narration, grounds and decision 208 Article 660 – Questions to resolve – Order of the Judgement 209 Article 661 – Limits of decreeing 209 Article 662 – Judgement if obligation is not enforceable 209 Article 663 – Subsequent events 209 Article 664 – Judge not bound by parties’ arguments 210 Article 665 – Collusion to subvert law 210 SECTION II 210 VICES AND REVIEW OF THE JUDGMENT Article 666 – When Court becomes ‘functus officio’ 210 Article 667 – Rectification of material errors 210 Article 668 – Grounds for nullity of judgment 211 Article 669 – Curing of omission or nullities 211 Article 670 – Clarification and correction of judgement 211 SECTION III 212 EFFECTS OF THE JUDGMENT Article 671 – Binding force of judgement become final 212 Article 672 – Binding force of Orders 212 Article 673 – Scope of Judgment Res judicata 212 Article 674 – Res judicata on questions of status 212 Article 675 – Contradictory judgments 212 Article 676 – Judgment operating as Mortgage 213 1x Page Nos. CHAPTER VI 213 APPEALS SECTION I 213 GENERAL PROVISIONS Article 677 – Kinds of appeals 213 Article 678 – Cases and matters which admit appeal 214 Article 679 – Non-appealable decisions 214 Article 680 – Who can appeal 214 Article 681 – Loss of right to appeal 214 Article 682 – Principal and subordinate appeal 215 Article 683 – Benefit to non-appellants 215 Article 684 – Right to restrict appeal to some of the successful parties 215 Article 685 – Determination of subject matter of appeal 216 Article 686 – Limitation for filing appeals 216 Article 687 – How to file appeal 217 Article 688 – Order on memo of appeal 217 Article 689 – Appeal by way of complaint 217 Article 690 – Burden to argue and frame grounds 218 SECTION II 219 APPEAL FROM JUDGEMENT (“APELAÇÃO”) SUB-SECTION I 219 FILING AND EFFECTS OF THE APPEAL Article 691 – Appealable judgements 219 Article 692 – Appeal operating as stay or otherwise 219 Article 693 – Application that judgement be not stayed 220 Article 694 – Steps for declaring that the judgement was operative 220 Article 695 – Basis for fixing security 220 Article 696 – Guarantee to Respondent where security not furnished by Appellant 221 Article 697 – Authentic copy for furnishing security 221 SUB-SECTION II 221 FORWARDING THE RECORDS OF THE APPEAL Article 698 – Intimating the account 221 Article 699 – File inspection for filing submissions 221 SUB-SECTION III 222 HEARING OF THE APPEAL Article 700 - Assignee Judge - (“Relator”): function - forwarding proceedings to the Bench 222 Article 701 – Preliminary examination by the Assignee Judge 222 Article 702 – Procedure in the case of error as to type of appeal 222 Article 703 – Procedure in case of error as to operation of judgement 223 Article 704 – Where the appeal is barred 223 Article 705 – Appointment of advocate by Court 224 Article 706 – Filing of documents 224 1xi Page Nos. Article 707 – Examination by Judges 224 Article 708 – Need for steps 224 Article 709 – Preliminary questions by other judges 224 Article 710 – Hearing on object of the appeal 225 Article 711 – Adjournment or replacement of Assignee Judge 225 Article 712 – When can High Court alter decision of collective tribunal 225 Article 713 – Preparation of judgement 225 Article 714 – Publishing the result of the voting 226 Article 715 – Provisions relating to judgements to apply 226 Article 716 – Oral arguments 226 Article 717 – Nullity of collective judgement 226 Article 718 – Modification of the collective judgement 227 Article 719 – Return of file to the lower court 227 Article 720 – Steps against attempts to delay 227 SECTION III 227 APPEAL TO SUPREME COURT (‘REVISTA’) SUB-SECTION I 227 PRESENTATION OF APPEAL AND FORWARDING THE APPEAL PAPERS Article 721 – Decisions appealable before Supreme Court 227 Article 722 – Grounds of appeal 228 Article 723 – Effect of appeal 228 Article 724 – Order of Assignee Judge 228 Article 725 – Forwarding of appeal 229 SUB-SECTION II 229 THE DECISION OF THE APPEAL Article 726 – Applicability of norms for appeals to High Court from final judgement 229 Article 727 – Annexing of documents 229 Article 728 – Examination by judges and ascertainment of majority 229 Article 729 – Ascertainment of majority and order if it is found that there was violation of substantive law 229 Article 730 – New judgement in the High Court 230 Article 731 – Modifications to the collective judgement in case of nullities 230 Article 732 – Nullities in collective judgement 230 SECTION IV 231 APPEAL FROM ORDER (“AGRAVO”) SUB-SECTION I 231 APPEAL FROM ORDER FILED IN THE FIRST INSTANCE DIVISION I 231 FILING OF APPEAL AND EFFECTS OF STAY OF THE OPERATION OF THE IMPUGNED JUDGMENT 1xii Page Nos. Article 733 – Appealable decisions 231 Article 734 – Appeals forwarded immediately and those forwarded later 231 Article 735 – Other appeals forwarded immediately 232 Article 736 – Appeals forwarded alongwith respective proceedings 232 Article 737 – Appeals forwarded separately 232 Article 738 – Appeals in preventive injunction orders 233 Article 739 – Appeals in incidental proceedings 233 Article 740 – Appeals operating as stay 233 Article 741 – Declaration as to forwarding and stay 234 DIVISION II 234 FORWARDING OF THE APPEAL TO THE APPELLATE COURT Article 742 – Notice of the order and annexures to appeal 234 Article 743 – Filing of submissions 235 Article 744 – Support to the Order or reversal 235 Article 745 – Accounts 235 Article 746 – Procedure when appeal is forwarded immediately in the same file 235 Article 747 – Procedure when appeal is not forwarded but submissions are filed 236 Article 748 – Procedure when appeal is not forwarded immediately when submissions are not made soon 236 DIVISION III 237 HEARING OF THE APPEAL Article 749 – Procedure as in appeal from final judgement to be followed 237 Article 750 – Advance payment 237 Article 751 – Preliminary questions 237 Article 752 – File examination and hearing 238 Article 753 – Cognizance on merits in place of trial court 238 SUB-SECTION II 239 APPEAL FROM ORDER FILED BEFORE THE APPELLATE COURT DIVISION I 239 PRESENTATION OF THE APPEAL, OBJECT AND EFFECT OF THE APPEAL AS TO THE STAY OF OPERATION Article 754 – Decisions appealable to Appellate Court 239 Article 755 – Grounds for an Appeal from Order 239 Article 756 – Appeals from order which are forwarded immediately 239 Article 757 – Appeals from order which are forwarded only at the end 240 Article 758 – Stay resulting from Appeals from Order 240 Article 759 – Fixing of stage of forwarding and its effect 240 DIVISION II 240 FORWARDING THE APPEAL Article 760 – Forwarding of the appeal when done immediately 240 Article 761 – Steps when appeal from order is not forwarded immediately 241 1xiii Page Nos. DIVISION III 241 HEARING OF APPEAL Article 762 - Procedure for hearing 241 SECTION V 241 APPEAL TO THE FULL COURT Article 763 – Grounds for appeal to Full Court 241 Article 764 – Application for Full Court hearing 242 Article 765 – Submissions on preliminary question 242 Article 766 – Examination and judgement of preliminary question 242 Article 767 – Submissions and examination on the solution to conflict of jurisprudence 243 Article 768 – Judgement on conflict – Final binding effect 243 Article 769 – Modification of Full Court decision settling law 243 Article 770 – Appeal by Public Ministry 244 SECTION VI 244 REVISION Article 771 – Grounds for Revision 244 Article 772 – Time for filing 245 Article 773 – Mode of filing 245 Article 774 – Special cases of immediate dismissal 245 Article 775 – Adjudication in specific cases 246 Article 776 – Steps for adjudication in other cases 246 Article 777 – Furnishing of security 246 SECTION VII 246 OBJECTION BY THIRD PARTY Article 778 – Ground for third party objection 246 Article 779 – Limitation 247 Article 780 – How the application is drawn up 247 Article 781 – Dismissal ‘in limine’ 247 Article 782 – Steps in case the appeal proceeds 247 SUB-TITLE III 248 SUMMARY PROCEEDINGS Article 783 – Time for reply and penalty for default 248 Article 784 – Consequences of absence of contest 248 Article 785 – Rejoinder 248 Article 786 – Filing of documents and proof 248 Article 787 – Preliminary hearing and curative order 248 Article 788 – Letters of request 249 Article 789 – Limit as to number of witnesses 249 Article 790 – Fixing the hearing of arguments and judgement 249 Article 791 – Hearing of arguments and judgement 249 Article 792 – Effect of appeal from final judgement and forwarding of Appeals from Orders 250 Article 793 – Appeal from final judgement to Court of Judicial Division 250 1xiv Page Nos. Article 794 – Adjudication of prior questions 250 Article 795 – Appeal directly to Supreme Court 250 Article 796 – Hearing of Appeal from Order by Court of Judicial Division 250 SUB-TITLE IV 251 CONCISE PROCEEDINGS Article 797 – Initial petition 251 Article 798 – Summons, time for defence and list of witnesses 251 Article 799 – Effect of non-contest 251 Article 800 – Hearing of arguments and judgement - Effect of non-appearance parties 251 TITLE III 252 EXECUTION PROCEEDINGS SUB-TITLE I 252 GENERAL PROVISIONS Article 801 - Applicability of provisions relating to suit for declaration 252 Article 802 – Requisites of executable obligation 252 Article 803 – Choice of act to perform 252 Article 804 – Obligation conditional or dependent on performance 253 Article 805 – Liquidation by Decree Holder 253 Article 806 – Procedure for liquidation when Decree Holder cannot quantify 253 Article 807 – Further steps in case of opposition or otherwise 253 Article 808 – Steps when lack of opposition is not penalized 254 Article 809 – Liquidation by arbitrament 254 Article 810 – Process when one part is ascertained and the other is unascertained 255 SUB-TITLE II 255 EXECUTION FOR PAYMENT OF AN AMOUNT WHICH IS CERTAIN CHAPTER I 255 ORDINARY PROCEDURE SECTION I 255 SUMMONS AND OPPOSITION Article 811 – Summons or notice for execution 255 Article 812 – Means of opposition 256 Article 813 – Grounds of defence when execution is based on a judgement 256 Article 814 – Special grounds when it is an arbitral award 257 Article 815 – Grounds of objection when execution is based on another title 257 Article 816 – Time limit for objection 257 Article 817 – Norms for the objections 257 Article 818 – Effect of receiving objections 258 Article 819 – Furnishing of security 258 Article 820 – Objections suo-moto 258 1xv Page Nos. SECTION II 259 ATTACHMENT SUB-SECTION I 259 ASSETS WHICH MAY BE ATTACHED Article 821 – Object of execution 259 Article 822 – Assets which cannot be attached 259 Article 823 – Attachment of undivided assets 260 Article 824 – Assets attached in execution against husband 261 Article 825 – Assets to be attached in execution against societies 261 Article 826 – Assets to be attached in execution against an heir 261 Article 827 – Assets to be attached in execution against surety 261 Article 828 – Attachment of sailing ship 262 Article 829 – Attachment of cargo in a cleared ship 262 Article 830 – Conditions for unloading in attachment of loaded goods 262 Article 831 – Attachment of assets in the hands of third party 263 Article 832 – Precautions when assets are stated to belong to a third party 263 Article 833 – Declaration of insolvency or bankruptcy 263 SUB SECTION II 263 INDICATION OF ASSETS FOR ATTACHMENT Article 834 – Terms on which Judgement Debtor (execution opponent) may indicate assets for attachment 263 Article 835 – Assets which need not be indicated 264 Article 836 – Cases when the right to specify assets devolves on the Decree Holder 264 Article 837 – Indication how made 264 SUB-SECTION III 265 ATTACHMENT 0F IMMOVABLES ASSETS Article 838 – How attachment of immovables is done 265 Article 839 – Delivery to a Court receiver 265 Article 840 – Effective delivery 266 Article 841 – Special Receiver 266 Article 842 – Extension of attachment - Attachment of fruits 266 Article 843 – Administration of attached assets 266 Article 844 – Remuneration of Receiver 267 Article 845 – Removal of Receiver 267 Article 846 – Conversion of seizure into attachment 267 Article 847 – Guarantee from attachment – lifting of the same 267 SUB-SECTION IV 268 ATTACHMENT OF MOVEABLE ASSETS Article 848 – How attachment of moveables is done 268 Article 849 – Physical obstruction 268 Article 850 – Liability for malafide concealment 268 Article 851 – Assets which may be sold 269 1xvi Page Nos. Article 852 – How a Receiver can cause an attached ship to navigate 269 Article 853 – How any creditor can cause an attached ship to navigate 269 Article 854 – Duty of Receiver to produce assets – Sanction 270 Article 855 – Application of provisions relating to attachment of immovables 270 SUB-SECTION V 270 ATTACHMENT OF CREDITS OR RIGHTS Article 856 – Attachment of credits and rights: how made 270 Article 857 – Attachment of installments of credit 271 Article 858 – When debtor denies existence of credit 271 Article 859 – When Judgment Debtor needs to perform an obligation 271 Article 860 – Attachment of allowances and salaries 272 Article 861 – Deposit in the Treasury 272 Article 862 – Attachment of amount deposited with Government bank 272 Article 863 – Attachment of rights to undivided assets 273 SECTION III 273 NOTICE TO THE CREDITORS AND VERIFICATION OF THE CREDITS Article 864 – Notice to creditors and spouse 273 Article 865 – Claim by creditor 273 Article 866 – Objections over reclaimed credits 274 Article 867 – Reply 274 Article 868 – Subsequent steps: verification and grading of credits 274 Article 869 – Right of creditor with a pending suit 275 Article 870 – Indication by creditors of other assets for attachment – Declaration of Insolvency 275 Article 871 – Multiple executories over assets 276 SECTION IV 276 PAYMENT SUB SECTION I 276 MODES OF PAYMENT Article 872 – Modes of payment 276 SUB-SECTION II 276 DELIVERY OF MONEY OR OF CERTIFICATE Article 873 – Payment by money or by delivery of certificate 276 SUB-SECTION III 277 AWARD Article 874 – Requisites for award 277 Article 875 – Adjudication where there are no bidders 277 Article 876 – Award where there is bid 277 Article 877 – Lapse of encumbrances and rights 278 1xvii Page Nos. Article 878 – Application for adjudication of incomes 278 Article 879 – Requisites necessary to award to creditor below the first 278 Article 880 – Award of incomes how made 278 Article 881 – Register of Awards 279 SUB SECTION IV 279 SALE DIVISION I 279 KINDS OF SALE Article 882 – Kinds of sale 279 Article 883 – Modes of judicial and extra judicial sale 279 DIVISION II 279 EXTRA JUDICIAL SALE Article 884 – Sale through exchanges 279 Article 885 – Direct sale by force of law 280 Article 886 – Sale by private negotiation 280 Article 887 – Sale by private negotiation: how done 280 Article 888 – Sale in auction house 280 DIVISION III 281 JUDICIAL SALE Article 889 – When auction is to be proceeded with 281 Article 890 – Public notice and Advertisements for Judicial sale 281 Article 891 – Duty to show assets 282 Article 892 – Notice to preference holders 282 Article 893 – Opening of tenders 282 Article 894 – Deliberation on the proposals and adjudication 283 Article 895 – Place of auction 283 Article 896 – Fixing of value at which the assets are going on auction 283 Article 897 – How auction is carried out 284 Article 898 – Record of auction 284 Article 899 – Auction of whole or part of property 284 Article 900 – Contents of auction proceedings 285 Article 901 – Steps where there are no bids 285 Article 902 – Time gap between auctions and notice thereof 285 Article 903 – Where there is no bid in second auction 285 Article 904 – Payment of bid price – sanction for non-payment 285 Article 905 – Certificate of auction 286 DIVISION IV 286 COMMON PROVISIONS Article 906 – Exemption of deposit by creditors 286 Article 907 – Transfer of assets shall be free from encumbrances 286 Article 908 – Rescission of sale or compensation 287 1xviii Page Nos. Article 909 – Cases in which sale shall be of no effect 287 Article 910 – Rights of purchaser in case of eviction 288 Article 911 – Precautions in case of protest for revindication 288 SECTION V 289 REMISSION Article 912 – Who has the right of remission 289 Article 913 – Time limit to exercise right of redemption 289 Article 914 – Prevalence of right of remission over right of preference 290 Article 915 – Order in which right of remission devolves 290 SECTION VI 290 EXTINCTION AND ANNULMENT OF THE EXECUTION Article 916 – Right to stop execution by voluntary payment 290 Article 917 – Dismissal of execution 290 Article 918 – Deposit of the debt 291 Article 919 – Other modes of extinction 291 Article 920 – Renewal of execution when cause of action is continuing 291 Article 921 – Annulment of execution for failure of, or invalid service 291 SECTION VII 292 APPEALS Article 922 – Appeal from final judgment 292 Article 923 – Appeals from Orders 292 CHAPTER II 293 SUMMARY EXECUTION PROCEEDINGS Article 924 – Summons – Time for defence 293 Article 925 – Steps in objection proceedings 293 Article 926 – Forwarding of appeals from orders 293 CHAPTER III 293 CONCISE PROCEEDING Article 927 – Steps in concise proceedings 293 SUB-TITLE III 294 EXECUTION FOR THE DELIVERY OF THE SPECIFIC THINGS Article 928 – Summons for execution for delivery of specific thing 294 Article 929 – Grounds and effect of objections for the judgement debtor 294 Article 930 – Delivery through Court 294 Article 931 – Conversion into execution for payment 295 Article 932 – Forwarding of appeals 295 1xix Page Nos. SUB-TITLE IV 295 EXECUTION FOR DOING OR ABSTAINING Article 933 – Summons to judgement debtor for doing/ abstaining from an act within a specified time 295 Article 934 – Conversion into execution for recovery of certain amount 295 Article 935 – Valuation of cost of act or abstention and recovery of this amount 295 Article 936 – Performance by Decree Holder 296 Article 937 – Payment of estimated credit to Decree Holder 296 Article 938 – Right of Decree holder when cost of valuation is not realized 296 Article 939 – Time limit for performance 296 Article 940 – Steps after time limit is fixed 296 Article 941 – Verification of default when judgement debtor is bound to refrain from doing a certain act 297 Article 942 – Steps after breach is ascertained 297 Article 943 – Appeals 297 TITLE IV 297 SPECIAL PROCEEDINGS CHAPTER I 297 INTERDICTIONS SECTION I 297 INTERDICTION DUE TO DEMENTIA, OR DUE TO DEAF-DUMBNESS Article 944 – Requisites of initial petition for an action of interdiction from dementia 297 Article 945 – Publication – annulment of acts 298 Article 946 – Notice to respondent in case of partial incapacity 298 Article 947 – Defence of respondent when incapacity is total 299 Article 948 – Appointment and summoning of family council 299 Article 949 – Reasons to reject petition 299 Article 950 – Questioning of the respondent and examination by experts 300 Article 951 – Immediate Interdiction Order 301 Article 952 – Provisional interdiction 301 Article 953 – Steps in the ordinary proceedings 301 Article 954 – Contents of the Interdiction Order 301 Article 955 – Appeal 302 Article 956 – Sealing and listing of assets 302 Article 957 – Prosecution of proceedings even after death of opponent 302 Article 958 – Procedure for lifting the interdiction 303 Article 959 – Applicability to interdiction of deaf-dumbness 303 SECTION II 303 INTERDICTION ON ACCOUNT OF PRODIGALITY Article 960 – Procedure for interdiction for prodigality 303 Article 961 – Lifting of interdiction 304 1xx Page Nos. SECTION III 304 RESTRAINT ON PARENTAL POWER OR OF GUARDIANSHIP FUNCTIONS Article 962 – Pleadings in a petition for restraining power of parent or guardian 304 Article 963 – Curative order 305 Article 964 – Hearing of arguments and judgement 305 Article 965 – Judgement 306 Article 966 – Appeal 306 Article 967 – Incidents 306 Article 968 – Suspension of power of parent or guardian and deposit of minor 306 Article 969 – Lifting of inhibition 307 CHAPTER II 307 TERMINATION OF THE TENANCY AND OF THE SHARE CROPPING AGREEMENT SECTION I 307 REMEDIES AVAILABLE TO THE LANDLORD Article 970 – Modes in which landlord may terminate tenancy after its capacity 307 Article 971 – Initial petition for eviction 308 Article 972 – Defence and rejoinder 308 Article 973 – Curative order and questionnaire 309 Article 974 – Arguments and judgement 309 Article 975 – Eviction by notice 309 Article 976 – Rights of landlord when tenant does not receive notice 309 Article 977 – Procedure for immediate termination of tenancy 310 Article 978 – Effect of contest 310 Article 979 – Rents accrued during pendency of proceedings 311 Article 980 – Judgment against Plaintiff as being in bad faith 311 Article 981 – Liability of landlord for fraud 311 Article 982 – Use of summary procedure 311 Article 983 – Applicability to agricultural partnership 312 SECTION II 312 REMEDIES AVAILABLE TO THE TENANT Article 984 – Means for tenant to terminate tenancy at the end of term 312 Article 985 – Means for tenant to end tenancy immediately 312 SECTION III 313 EVICTION, AFFIXATION OF PLACARDS AND REOCCUPATION THROUGH ORDER OF THE COURT Article 986 – Eviction warrant 313 Article 987 – Stay of eviction 313 Article 988 – Stay of eviction on ground of sickness 314 Article 989 – Warrant for fixing placards 314 Article 990 – Other cases of warrant of eviction 314 1xxi Page Nos. Article 991 – Eviction warrant in special cases 315 Article 992 – Warrant for re-entry 315 SECTION IV 315 DEPOSIT OF RENTS Article 993 – Deposit of rents 315 Article 994 – Court deciding deposit of rent 316 Article 995 – Challenge to deposit 316 Article 996 – Effect of deposit 316 Article 997 – Successive deposits 317 Article 998 – Withdrawal of deposit by landlord 317 CHAPTER III 317 REDEMPTION OF THE MORTGAGE AND EXTINCTION OF THE PRIVILEGES Article 999 – Redemption of mortgage in case of full payment to creditor 317 Article 1000 – Redemption of mortgage in case of judicial sales 318 Article 1001 – Redemption of mortgages in other case 318 Article 1002 – Disputing of valuation by Creditors 318 Article 1003 – Notice to creditors 319 Article 1004 – Redemption of statutory mortgages 319 Article 1005 – Redemption of mortgage securing periodical installments 319 Article 1006 – Applicability to the extinction of privileges over ships 319 CHAPTER IV 320 SALE AND AWARD OF THE PLEDGED GOODS Article 1007 – Petition in suits for sale of pledged goods 320 Article 1008 – Steps to be followed in the absence of contest 320 Article 1009 – Steps to be followed when there is contest 321 Article 1010 – Procedure for adjudication of the pledge 321 Article 1011 – Redemption of pledge 321 CHAPTER V 321 RENDERING OF ACCOUNTS SECTION I 321 ACCOUNTS IN GENERAL Article 1012 – Notice to render accounts 321 Article 1013 – Preliminary question 322 Article 1014 – Steps to be followed when defendant does not submit accounts 322 Article 1015 – Steps when defendant submits accounts 322 Article 1016 – Power of judge when accounts are not contested 323 Article 1017 – Procedure in case of voluntary submission of accounts 323 Article 1018 – Ancillary Accounts 323 1xxii Page Nos. SECTION II 323 ACCOUNTS OF GUARDIAN (TUTOR), OF THE CURATOR OR ADMINISTRATOR IN THE CASE OF PRODIGALITY AND COURT RECEIVER Article 1019 – Procedure for voluntary submission of accounts by guardian, curator or administrator of a prodigal 323 Article 1020 – Procedure to compel the submission of accounts 324 Article 1021 – Rendering of accounts in case of emancipation, majority or lifting of interdiction 325 Article 1022 – Accounts of Court Receiver 325 CHAPTER VI 325 PAYMENT IN THE COURT Article 1023 – Application for deposit in Court 325 Article 1024 – Summons to the creditor 326 Article 1025 – Consequences of not contesting 326 Article 1026 – Grounds of contest 326 Article 1027 – Procedure when contest is not on ground that amount or thing is higher or different 326 Article 1028 – Procedure when objection is that amount or thing is higher or different 327 Article 1029 – Procedure where creditor is doubtful 328 Article 1030 – Depositing of price of sale or remission of census or fees 328 Article 1031 – Depositing of amount as incidental proceedings 329 CHAPTER VII 330 POSSESSORY REMEDIES SECTION I 330 POSSESSORY SUITS Article 1032 – Procedure for possessory suits 330 Article 1033 – Claim of ownership 330 Article 1034 – Subsequent steps 330 Article 1035 – Final Judgment on property and possession 331 SECTION II 331 THIRD PARTY OBJECTIONS Article 1036 – Purpose and requirements of Third party objections 331 Article 1037 – Filing of objections – Order of admission or rejection 331 Article 1038 – Steps after filing 332 Article 1039 – Third party objections as Preventive relief 332 Article 1040 – Disputing of ownership 333 Article 1041 – Third party objection by married woman 333 Article 1042 – Third party objection for securing maintenance 333 CHAPTER VIII 334 POSSESSION OR DELIVERY THROUGH COURT Article 1043 – Basis for Judicial possession 334 1xxiii Page Nos. Article 1044 – Petition for sundry possession through Court 334 Article 1045 – Subsequent steps 334 Article 1046 – Objection where the person summoned possesses in the name of another 334 Article 1047 – Judgement 335 Article 1048 – Liability in case of fraud 335 Article 1049 – Appeals 335 Article 1050 – Saving of possessory suits and other lawful remedies 335 CHAPTER IX 336 SUITS FOR ARBITRAMENT Article 1051 – Procedure in suits for arbitrament in case of opposition to the prayer 336 Article 1052 – Appointment of experts 336 Article 1053 – Confirmation or alteration of act of experts 336 Article 1054 – Peculiarities of suit to prevent damage 336 Article 1055 – Attempt at conciliation in acquisition for private purpose 337 Article 1056 – Requirement of judgment authorizing stoppage or deviation of easement 337 Article 1057 – Special terms in demarcation suits 337 Article 1058 – Adjudication in partition of property 338 Article 1059 – Steps when the thing is not divisible 338 Article 1060 – Steps when co-ownership or indivisibility is disputed 338 Article 1061 – Indivisibility raised by summoned parties or by experts 339 Article 1062 – Steps to regulate and share repairs where there is an agreement 339 Article 1063 – Annulment of proceedings for non intervention of any interested party 339 Article 1064 – Steps where there is no compromise 340 Article 1065 – Limit of scope of intervention in compromise or appointment of dividers 340 Article 1066 – Steps when any foreign party is ex-parte 340 Article 1067 – Limitation of suit for gross averages 340 CHAPTER X 340 RECONSTRUCTION OF CREDIT INSTRUMENTS OF THE FILES AND BOOKS SECTION I 340 RECONSTRUCTION OF CREDIT INSTRUMENTS Article 1068 – Petition and summons for reconstruction of destroyed credit instruments 340 Article 1069 – Steps where there is agreement 341 Article 1070 - Steps where there is no agreement 341 Article 1071 – Applicability to reconstruction of stolen, lost or misplaced document 342 Article 1072 – Applicability to reconstruction of other documents 342 SECTION II 342 RECONSTRUCTION OF FILES Article 1073 – Petition for reconstruction of files 342 Article 1074 – Meeting of parties 343 Article 1075 – Steps in absence of agreement 343 Article 1076 – Judgment 343 Article 1077 – Reconstruction of pleadings, orders and evidence 343 1xxiv Page Nos. Article 1078 – Reappearance of original file 344 Article 1079 – Liability of one who gave cause to the reconstruction 344 Article 1080 – Reconstruction of file misplaced or lost in higher court 344 SECTION III 344 RECONSTRUCTION OF BOOKS Article 1081 – Proceedings to decide demands for over reconstruction of Registration Books 344 CHAPTER XI 345 APPEALS AGAINST ORDERS PASSED BY CONSERVATORS, NOTARIES AND OTHER PUBLIC SERVANTS Article 1082 – Petition for contested appeal against refusal of an act by a Conservator or other official 345 Article 1083 – Subsequent steps 345 Article 1084 – Appeals 345 Article 1085 – Handing over documents and information to disciplinary authority 346 Article 1086 – Appeal from doubts raised by registrar 346 Article 1087 – Hierarchical appeal 346 Article 1088 – Appeal to solve questions over rectification of errors in land registration 346 CHAPTER XII 347 SUIT FOR LOSS AND DAMAGES AGAINST JUDGES AND PUBLIC MINISTRY Article 1089 – When Judges and Law Officers are liable for losses and damages 347 Article 1090 – Competent court 347 Article 1091 – Hearing of the officer 347 Article 1092 – Order on admission 347 Article 1093 – Appeal from Order 348 Article 1094 – Contest and further steps 348 Article 1095 – Arguments and Judgment 348 Article 1096 – Appeal from final judgment 348 Article 1097 – Court competent for execution 349 Article 1098 – Exemption of decision on admission 349 Article 1099 – Compensation for criminal conduct 349 CHAPTER XIII 349 REVIEW AND CONFIRMATION OF FOREIGN JUDGMENTS Article 1100 – Foreign Judgments subject to review and confirmation 349 Article 1101 – Jurisdiction 349 Article 1102 – Requisites necessary for confirmation 350 Article 1103 – Procedure for review 350 Article 1104 – Grounds of defence 351 Article 1105 – Suo-moto action by the Court 351 Article 1106 – Appeal from the final decision 351 1xxv Page Nos. CHAPTER XIV 351 JUSTIFICATION OF THE ABSENCE AND OF THE STATUS OF HEIR Article 1107 – Petition for definitive guardianship 351 Article 1108 – Subsequent pleadings 352 Article 1109 – Steps after pleadings 352 Article 1110 – Procedure where there is no contest 352 Article 1111 – Delivery of the assets 352 Article 1112 – Justification of absence for other purposes 353 Article 1113 – Procedure for opening closed will 353 Article 1114 – End of guardianship if whereabouts are found 354 Article 1115 – End of guardianship when absentee returns 354 Article 1116 – End of guardianship in other cases 355 Article 1117 – Procedure to assert the status of heir 355 Article 1118 – Partition of inheritance amongst a generality of persons 355 CHAPTER XV 356 SPECIAL EXECUTION FOR MAINTENANCE Article 1119 – Execution for maintenance 356 Article 1120 – End of execution for provisional maintenance - Retroactive effect of fixation of permanent maintenance 356 Article 1121 – Procedure to cease or alter maintenance 356 CHAPTER XVI 357 LIQUIDATION OF ASSETS SECTION I 357 WINDING UP AT INSTANCE OF THE SHAREHOLDERS Article 1122 – Winding up through Court 357 Article 1123 – Appointment of liquidators 357 Article 1124 – Fixing time for liquidation 357 Article 1125 – Liquidation process 358 Article 1126 – Accounts of liquidators and distribution of balance 358 Article 1127 – Acceptance of partial liquidation 358 Article 1128 – Partition in case of partial liquidation 358 Article 1129 – Steps when total liquidation is not possible 359 Article 1130 – Cases when liquidation through Court is acceptable 359 Article 1131 – Liquidation out of Court 359 SECTION II 360 LIQUIDATION FOR THE BENEFIT OF THE STATE Article 1132 – Summoning of unknown heirs in case of a vacant inheritance 360 Article 1133 – Liquidation in case of vacant inheritance 360 Article 1134 – Procedure for claiming and verification of credits 360 1xxvi Page Nos. SECTION III 362 LIQUIDATION FOR THE BENEFIT OF CREDITORS SUB-SECTION I 362 DECLARATION OF INSOLVENCY AT THE INSTANCE OF THE CREDITORS Article 1135 – Definition of state of insolvency 362 Article 1136 – Reasons for declaring insolvency 362 Article 1137 – When Insolvency can be claimed for non payment of dues 362 Article 1138 – Who can declare Insolvency 363 Article 1139 – Limitation for businessman to apply for declaration of insolvency 363 Article 1140 – Requisites for a businessman’s application to be declared insolvent 363 Article 1141 – Creditor’s application 363 Article 1142 – Hearing of respondent 363 Article 1143 – Time for Inquiry 364 Article 1144 – Hearing of arguments and Judgment 364 Article 1145 – Withdrawal of application 364 Article 1146 – Who can appeal 364 Article 1147 – Who can file objections to the declaration 365 Article 1148 – Grounds for objections 365 Article 1149 – Raising, admission and opposition to objections 366 Article 1150 – Hearing and judgment 366 Article 1151 – Steps in proceeding stayed by objections 366 Article 1152 – Mandatory finding on bad faith of applicant 366 SUB-SECTION II 367 CONSERVATORY MEASURES Article 1153 – Seizure of assets 367 Article 1154 – Seizure of amount paid 367 Article 1155 – Who attends the seizure 367 Article 1156 – Delivery of assets to administrator or Receiver 367 Article 1157 – Advance sale of assets 368 SUB-SECTION III 368 EFFECT OF INSOLVENCY DIVISION I 368 EFFECTS OF INSOLVENCY IN RELATION TO THE INSOLVENT AND TO HIS CREDITORS Article 1158 – Interdiction of Insolvent 368 Article 1159 – Ineffectiveness of the acts and contracts by the Insolvent after the declaration 368 Article 1160 – Fixation of maintenance for the Insolvent 369 Article 1161 – Fixation of residence of Insolvent 369 Article 1162 – Duty of Insolvent to appear in person 369 Article 1163 – Penal sanctions 369 Article 1164 – Effect of Insolvency on Creditors 369 Article 1165 – Effect of Insolvency on proceedings to which the Insolvent is a party 370 1xxvii Page Nos. Article 1166 – Subsistence of bilateral contract by the Insolvent 370 Article 1167 – Set off of Credits 371 DIVISION II 371 EFFECTS OF INSOLVENCY IN RELATION TO THE ACTS WHICH ARE PREJUDICIAL TO THE ESTATE Article 1168 – Acts which may be annulled to the benefit of the estate 371 Article 1169 – Rescission of fraudulent act and those to the detriment of creditors 372 Article 1170 – Acts presumed to be in bad faith 372 Article 1171 – Effect of rescission or annulment 372 Article 1172 – Appending of suits for annulment or rescission 372 SUB SECTION IV 372 ADMINISTRATION OF THE BANKRUPTCY ESTATE Article 1173 – To whom does the administration of the bankruptcy estate befall 372 Article 1174 – Powers of administrator – Personal character of the post 373 Article 1175 – Duties of administrator 373 Article 1176 – Opening of correspondence addressed to the Insolvent 373 Article 1177 – Permission of the Insolvent to do certain act 373 Article 1178 – Balance sheet of the exercise of administration 373 Article 1179 – Questioning of the administrator 374 SUB-SECTION V 374 VERIFICATION OF DEBTS Article 1180 – Claiming of credits 374 Article 1181 – Filing and attaching claims 374 Article 1182 – Certificate of encumbrance and notice to creditors 374 Article 1183 – List of unclaimed credits 375 Article 1184 – Disputing of credits 375 Article 1185 - Say of the administrator on credit claimed 375 Article 1186 – Grounds for contesting 375 Article 1187 – Rejoinder by creditor 375 Article 1188 – Evidence 376 Article 1189 – Chart of the objections 376 Article 1190 – Curative order and questionnaire 376 Article 1191 – Production of evidence 376 Article 1192 – Say of Public Ministry and date for arguments and judgment 376 Article 1193 – Arguments and judgments 377 Article 1194 – Judgment 377 Article 1195 – Who can appeal 377 Article 1196 – Suit for verification of credit or right to restitution and separation of assets 377 Article 1197 – Position of Creditor and Interested Party who files the suit but does not observe the provisions of the preceding article 378 Article 1198 – Appending of actions and applicable procedure 378 Article 1199 – Application for provisional delivery of mobiliary assets 378 1xxvii Page Nos. Article 1200 – Objections and verifications to which the procedures and time limit for verification of credit apply 379 Article 1201 – Claim by the insolvent or his wife for their exclusive rights alien to the insolvency380 Article 1202 – Application for restitution or separation of assets seized late 380 Article 1203 – Right of creditors in case of insolvency of debtors for joint liabilities 380 Article 1204 – Preference to costs and other amounts 380 SUB SECTION VI 381 APPRECIATION AND LIQUIDATION OF THE ASSETS DIVISION I 381 APPRECIATION OF THE ASSETS Article 1205 – Preparation of balance sheet 381 Article 1206 – Valuation of assets in case of disagreement by administrator 381 Article 1207 – Recovery of credits 381 Article 1208 – Recovery of sale of assets given on pledge or subject to lawful retention 382 DIVISION II 382 LIQUIDATIONS OF THE ASSETS Article 1209 – Sale of assets and rights 382 Article 1210 – Who effects the liquidation 382 Article 1211 – Sale by auction 382 Article 1212 – Sale by proposals in sealed covers 383 Article 1213 – Deposit of part of price 383 Article 1214 – Private Sale 383 Article 1215 – External formalities of extra judicial sales 383 Article 1216 – Exemption of deposit to creditors and guarantors of light of preference 384 Article 1217 – Complaints against irregularities in liquidation 384 Article 1218 – Deposit of the proceeds of liquidation 384 Article 1219 – Transfer of balance and convening meeting of creditors 384 Article 1220 – Approval of debts by creditors’ meeting 384 Article 1221 – Minutes of proceedings 385 Article 1222 – Objection against deliberations 385 Article 1223 – Disposal of books and liquidation records 385 SUB-SECTION VII 385 PAYMENT TO THE CREDITORS Article 1224 – Payment to secure creditors 385 Article 1225 – Proposal and chart of apportionment 385 Article 1226 – Partial and successive apportionment 386 Article 1227 – Reserve for costs, stamp duty and expenses 386 Article 1228 – Regime to be observed when the verification is not final 386 Article 1229 – Mode of payment in extra judicial liquidation 387 1xxix Page Nos. SUB-SECTION VIII 387 ACCOUNTS OF THE ADMINISTRATION Article 1230 – When does the administrator have to furnish accounts 387 Article 1231 – Procedure to compel rendering of accounts 387 Article 1232 – Cases in which accounts are rendered by heirs or representatives of administrator 387 Article 1233 – Organization of account 387 Article 1234 – Chart to be presented by Court office 388 Article 1235 – Summons to the creditors, the insolvent – say of the syndic and Public Ministry 388 SUB-SECTION IX 388 PREVENTIVE REMEDIES TO SUSPEND THE INSOLVENCY DIVISION I 388 INSOLVENCY COMPOSITION SUB-DIVISION I 388 GENERAL PROVISIONS Article 1236 – Who can initiate a composition 388 Article 1237 – Number of creditors and credit representation required to admit composition 389 Article 1238 – Need of fresh consent in case of death of proposer 389 Article 1239 – Bar on composition by charged or convicted businessman 389 Article 1240 – Bar on new composition before lapse of one year 389 Article 1241 – Effect of approval of composition 389 Article 1242 – Form and registration of composition 389 Article 1243 – Bar on suits or executions 389 Article 1244 – Insolvency of the applicant - or party to composition 390 Article 1245 – Rights of creditor by instrument of joint liability who accepts composition with any other joint debtor 390 Article 1246 – Consequences of the acceptance of composition by a privileged or preferred creditor 390 Article 1247 – Sanction against private agreement contrary to the composition 390 Article 1248 – Issuing of bills of exchange or promisory notes pursuant to composition 391 Article 1249 – Insolvency resulting from rejection of composition 391 Article 1250 – Need to justify regular investments of amounts in balance sheet 391 SUB-DIVISION II 392 PREVENTIVE COMPOSITION Article 1251 – Requirements 392 Article 1252 – Competent Court 392 Article 1253 – Production of books of accounts 392 Article 1254 – Notice to debtor to accept the composition proposed by creditors 393 Article 1255 – Admission or rejection by Court 393 Article 1256 – Publication and content of admission order 393 Article 1257 – Functions of Commissioner 393 Article 1258 – Position of the debtor during pendency of proceedings 394 Article 1259 – Production of Books 394 Article 1260 – Functioning of creditor’s meeting 394 1xxx Page Nos. Article 1261 – Approval of composition or adjournment of meeting 395 Article 1262 – New meeting 395 Article 1263 – Objections to composition 395 Article 1264 – Contesting the objections 396 Article 1265 – Time limit for approval or rejection 396 Article 1266 – Appointment of supervisory council and its attributes 396 Article 1267 – Consequences of approval 396 Article 1268 – Consequences of rejection 396 Article 1269 – Liability for objections in bad faith 397 Article 1270 – Appeal 397 SUB DIVISION III 397 SUSPENSIVE COMPOSITION Article 1271 – At what stage suspensive composition may be proposed 397 Article 1272 – Requirements 397 Article 1273 – Form of acceptance 397 Article 1274 – Duty to apply for approval 397 Article 1275 – Order of acceptance or rejection 397 Article 1276 – Effect of acceptance 398 Article 1277 – Notice to creditors to object 398 Article 1278 – Say of the administrator 398 Article 1279 – Contesting of the objections 398 Article 1280 – Composition proposed by creditors or administrator 399 SUB-DIVISION IV 399 ANNULMENT AND RESCISSION OF THE COMPOSITION Article 1281 – Annulment of composition 399 Article 1282 – Rescission 399 Article 1283 – Notice to contest 399 Article 1284 – Consequence of annulment of rescission 400 Article 1285 – Appeal from Judgment 400 DIVISION II 400 AGREEMENT AMONGST CREDITORS Article 1286 – Terms and requisites of agreement 400 Article 1287 – Time after compliance 401 Article 1288 – Applicability of provisions relating to compensation 401 Article 1289 – Duty to seek approval of court 401 Article 1290 – Notice to contest 401 Article 1291 – Grounds of objection 401 Article 1292 – Proposal to increase percentage 402 Article 1293 – Means to avoid annulment 402 Article 1294 – Effect of judgment which dismisses petition for Insolvency or revokes Insolvency declaration 402 Article 1295 – Rescission of agreement 402 Article 1296 – Consequences of failure of society constituted by agreement amongst creditors 402 1xxxi Page Nos. DIVISION III 403 MORATORIUM Article 1297 – Who can propose moratorium 403 Article 1298 – Requirements of moratorium 403 Article 1299 – Regulation of moratorium 403 SUB SECTION X 403 CLASSIFICATION OF BANKRUPTCY Article 1300 – Kinds of Bankruptcy 403 Article 1301 – Casual bankruptcy 403 Article 1302 – Bankruptcy due to negligence 403 Article 1303 – Fraudulent bankruptcy 404 Article 1304 – Penalty for fraudulent or culpable bankruptcy 404 Article 1305 – Proceedings for prosecution of the bankrupt and classification of bankruptcy 404 Article 1306 – Provisional charge 404 Article 1307 – Framing the grounds of classification of bankruptcy 405 Article 1308 – Acceptance or rejection of articles 405 Article 1309 – Intimation of order of indictment 405 Article 1310 – Attachment of proceedings 406 Article 1311 – Notice to contest 406 Article 1312 – Summoning by public notices 406 Article 1313 – Adding to or changing list of witnesses 406 Article 1314 – Judgment 407 Article 1315 – Duty of accused to appear 407 Article 1316 – Time limit for Public Ministry and Creditor to apply for criminal proceedings 407 SUB-SECTION XI 407 END OF THE INTERDICTION AND REHABILITATION OF THE BANKRUPT Article 1317 - Circumstances for lifting the interdiction on an insolvent 407 Article 1318 - Rehabilitation of the insolvent 408 Article 1319 - Procedure for lifting interdictions in cases under article 1317(1) 408 Article 1320 – Lifting of Interdiction in other cases 408 Article 1321 – Proceedings in which one should apply 408 SUB-SECTION XII 408 SPECIAL PROVISIONS IN RELATION TO THE SOCIETIES Article 1322 – Separation between Insolvency of Society and its member 408 Article 1323 – Powers and duties of administrators 409 Article 1324 – Effect of Insolvency of society on members with unlimited liability 409 Article 1325 – Effect of bankruptcy of society for negligence or fraud on its administrators 409 Article 1326 – Petition for voluntary declaration of Insolvency 409 Article 1327 – Unity of administration and operation of assets 410 Article 1328 – Objections to voluntary liquidation 410 Article 1329 – Rights of instrument holders 410 Article 1330 – Distribution of proceeds amongst creditors of the society and of the members 410 1xxxii Page Nos. Article 1331 – Concurrence between corporate and private creditors 410 Article 1332 – Payment to society creditors from members’ assets 411 Article 1333 – Duty to compel members to contribute 411 Article 1334 – Right to grant composition to the society or to members with unlimited liability 411 Article 1335 – Composition to societies with limited liability 411 Article 1336 – Special laws saved 411 SUB-SECTION XIII 412 SPECIALTIES OF THE BANKRUPTCIES OF SMALL BUSINESSMAN Article 1337 – Limit to value for bankruptcies subject to summary terms 412 Article 1338 – Speciality of Judgment 412 Article 1339 – Exemption from publication in Government Gazette 412 Article 1340 – Seizure and sealing 412 Article 1341 – List of creditors and certificate of encumbrances 412 Article 1342 – Time of filing claims 413 Article 1343 – Bar of suits for verification, restitution and separation 413 Article 1344 – Bar of letters and summons to witnesses 413 Article 1345 – Fixing of trial and judgment 413 Article 1346 – Report of administrator 413 Article 1347 – Till when credits can be contested 414 Article 1348 – Oral judgment 414 Article 1349 – Time for liquidation 414 Article 1350 – Ascertainment of percentage to creditors and issuing of cheques 414 SUB SECTION XIV 414 FINAL PROVISIONS Article 1351 – Intervention of Public Ministry 414 Article 1352 – Death of insolvent or creditor 414 Article 1353 – Parts of the proceedings 415 Article 1354 – Secrecy of Insolvency proceedings 415 SUB SECTION XV 415 INSOLVENCY OF NON BUSINESSMAN Article 1355 – Definition 415 Article 1356 – Presumed insolvency 415 Article 1357 – Applicability of provisions relating to Insolvency 416 Article 1358 – Petition for voluntary insolvency 416 Article 1359 – Insolvency on application by creditors – Notice to debtor 416 Article 1360 – Appointment of administrator 416 Article 1361 – Effect of declaration 416 Article 1362 – Grounds of objections 416 Article 1363 – Attachment of pending execution 417 Article 1364 – Summoning of wife of Insolvent 417 Article 1365 – Liability of Insolvent for unpaid dues 417 Article 1366 – Composition with creditors 417 Article 1367 – Penalty for fraudulent insolvency 418 Article 1368 – Applicability to societies 418 1xxxiii Page Nos. CHAPTER XVII 418 INVENTORY SECTION I 418 DECLARATIONS OF ADMINISTRATOR, SUMMONS TO INTERESTED PARTIES, OBJECTIONS Article 1369 - Petition for inventory. Declarations of administrator 418 Article 1370 - Credit worthiness of the declarations of the administrator 419 Article 1371 - Summons to the parties 419 Article 1372 - Exparte hearing. Which notices are to be served on those who are exparte and those who are not exparte 420 Article 1373 - Representation of the person under disability or of the absentee 420 Article 1374 - Objections 421 Article 1375 - Application to qualify as party, legatee or creditor 422 Article 1376 - Exercise of the right of pre-emption 422 SECTION II 422 LIST OF ASSETS, APPOINTMENT OF APPRAISERS APPRAISAL DESCRIPTION Article 1377 - List of assets 422 Article 1378 - Properties value of which should be indicated by the administrator 423 Article 1379 - Examination and inspection of the file 424 Article 1380 - Steps to be taken when lack of description of properties is complained of 424 Article 1381 - Questions in respect of existence of properties or obligation to collate them 425 Article 1382 - Impossibility of description by administrator 425 Article 1383 - Question in respect of exclusion of properties 425 Article 1384 - Concept of withholding. In which case the question may be decided in the inventory 426 Article 1385 - Claim regarding credits 426 Article 1386 - Denial in respect of active debt 426 Article 1387 - Appraisal of the properties by appraiser 426 Article 1388 - Notes of result of appraisal 427 Article 1389 - Appraisal by head of the office 427 Article 1390 - Final description 427 SECTION III 427 CONFERENCE OF THE PARTIES Article 1391 - Second examination and inspection of the file 427 Article 1392 - Convening of family council 428 Article 1393 - Subjects to be put forth for the conference of the parties 428 Article 1394 - Approval of debts by all the parties 428 Article 1395 - Verification of the debts by the judge 429 Article 1396 - Difference amongst the parties in respect of approval of debts 429 Article 1397 - Payment of debts approved by all 429 Article 1398 - Payment of debts approved by some parties 430 Article 1399 - How the payment can be effected 430 1xxxiv Page Nos. Article 1400 - In which cases the legatees have right to decide about the debt 430 Article 1401 - Insolvency on account of excess of debts over the credits 431 Article 1402 - Deliberation on the point of entrustment of emphyteusis as a head 431 Article 1403 - Deliberation on the point of excessive valuation 431 Article 1404 - Deliberation of family council on behalf of person under disability 431 SECTION IV 432 SECOND APPRAISAL, LICITATIONS Article 1405 - Second valuation of the thing in which some co-heir has major share 432 Article 1406 - Second valuation of gifted properties 432 Article 1407 - Second valuation of legacies 433 Article 1408 - Second valuation at the instance of legatee 434 Article 1409 - Consequence of inofficiousness of legacy 434 Article 1410 - Other cases of second valuation. Who is to do it 434 Article 1411 - At what stage licitation is done 435 Article 1412 - How the licitation is done 435 Article 1413 - Annulment of licitation 435 SECTION V 436 PARTITION Article 1414 – Third examination and inspection of the file. Order as to manner how the partition is to be effected 436 Article 1415 – Rules in respect of filling up of the shares 436 Article 1416 – Chart of partition 437 Article 1417 – Steps to be taken when the gifted properties or properties subject of licitation exceed the share of the party 437 Article 1418 – Objection against the chart 438 Article 1419 – Sortition of lots 438 Article 1420 – Second and third chart 439 Article 1421 – Inspection by the Public Prosecutor for the purpose of payment of tax 439 Article 1422 – Liability for costs 440 Article 1423 – Safeguards to be observed for the delivery of the properties before the judgement has become final for want of appeal 440 Article 1424 – New partition 441 SECTION VI 441 AMENDMENT AND RESCISSION OF THE PARTITION Article 1425 - Amendment to the partition by agreement 441 Article 1426 - Amendment to the partition in the absence of agreement 441 Article 1427 - Rescission of partition 442 Article 1428 - Composition of the share of the preterited heir 442 SECTION VII 443 GENERAL PROVISIONS Article 1429 - Bringing on record the heirs of the deceased parties 443 1xxxv Page Nos. Article 1430 - New inventory 443 Article 1431 - Inventory of the surviving spouse 443 Article 1432 - Availing of appraisal and of the description made in other inventory 443 Article 1433 - Consolidation of inventories 444 Article 1434 - Additional partition 444 Article 1435 - Regime of appeals 444 Article 1436 - Question finally decided 445 Article 1437 - Regime of inventory for description and appraisal 446 Article 1438 - As to how the sale and leases to be used where the public auction is mandatory 446 SECTION VIII 446 PROCEEDINGS INCIDENTAL TO THE INVENTORY Article 1439 - Removal of administrator 446 Article 1440 - Exoneration from guardianship 447 Article 1441 - Exoneration from the post of administrator 447 Article 1442 - Exclusion or removal of guardian or of the pro-guardian 447 Article 1443 - Exclusion or removal of the guardian and members of family council 448 SECTION IX 448 PARTITION OF ASSETS IN SPECIAL CASES Article 1444 - As to how partition is effected in consequence of divorce, separation or annulment of marriage 448 Article 1445 - Specialties of inventory consequent upon the divorce, separation or annulment of marriage 448 Article 1446 - Liability for costs 448 Article 1447 - Proceedings for separation of assets in special cases 448 CHAPTER XVIII 449 VOLUNTARY JURISDICTION PROCEEDINGS SECTION I 449 GENERAL PROVISIONS Article 1448 – Powers of the Judge in matters of fact in voluntary Jurisdiction proceedings 449 Article 1449 – Requirements of convenience to prevail over strict legality 449 Article 1450 – Form of petition and defense 450 Article 1451 - Bar on appeals and reversibility of decision 450 SECTION II 450 PROVISIONS REGARDING CHILDREN AND SPOUSES SUB-SECTION I 450 PROVISIONS RELATING TO CHILDREN Article 1452 - Conference for regulating the exercise of parental power 450 Article 1453 – Procedure in the absence of agreement or in case the same is not performed by both 451 1xxxvi Page Nos. Article 1454 – Hearing of the arguments and judgment 452 Article 1455 – Judgement 452 Article 1456 - Consequences of failure to comply by one of the parents 452 Article 1457 - Alteration of the provisions 452 Article 1458 - Provision regarding children of spouses separated “defacto” and to illegitimate children 452 Article 1459 - Provisional steps in the case of legal protection to a woman 453 Article 1460 - Proceedings for judicial handing over of minor 453 Article 1461 - Power of the guardianship authorities for the emancipation of minors 454 Article 1462 - Application for maintenance of minors 454 Article 1463 - Requirements of the application 454 Article 1464 - Subsequent stages 454 Article 1465 - Steps to be taken in order to render the payment of maintenance effective 455 Article 1466 - Court with jurisdiction for steps relating to minors 455 SUB-SECTION II 455 LEGAL MEASURES CONCERNING SPOUSES Article 1467 - Legal protection to woman 455 Article 1468 - Expiry of custody 456 Article 1469 - Enlistment of movable assets 456 Article 1470 - Procedure for restoration of conjugal rights 456 Article 1471 - Procedure for a wife to compel her husband to receive her 457 SECTION III 457 DIVISION AND SEPARATION BY MUTUAL CONSENT Article 1472 - Division or separation of persons & assets by mutual consent 457 Article 1473 - Requirements of the application 457 Article 1474 - Judgment of dismissal or summoning of conference 457 Article 1475 - Conference. Provisional divorce or provisional separation 458 Article 1476 - New conference, final divorce or separation 458 SECTION IV 459 CONSENT THROUGH COURT Article 1477 - Consent through Court in cases of refusal 459 Article 1478 - Judicial consent in cases of incapacity or absence 459 Article 1479 - Making up of consent by the Family Council 459 SECTION V 459 ALIENATION OR LONG LEASE OF DOWRY ASSETS Article 1480 - Petition for alienation of dowry assets and for making up of the consent 459 Article 1481 - Subsequent steps 460 Article 1482 - Alienation for maintenance of family 460 Article 1483 - Need for inspection and registration of encumbrance in certain cases 460 Article 1484 - Types of sale or emphyteutic lease 461 Article 1485 - Disposal of the produce 461 Article 1486 - Investment of excess portion 461 Article 1487 - Investment of the return in the case of acquisition 462 1xxxvii Page Nos. SECTION VI 462 SALE, EMPHYTEUTIC LEASE OR CREATION OF ENCUMBRANCE ON ASSETS BELONGING TO LEGALLY DISABLED OR ABSENTEE PERSON Article 1488 - Judicial permission for sale, emphyteutic lease or creation of encumbrance on assets of legally disabled person 462 Article 1489 - Sale emphyteutic lease and creation of encumbrance on assets of the absentee 463 SECTION VII 463 COUNCIL OF THE FAMILY AND FOR GUARDIANSHIP Article 1490 - Requirement for constitution and convening for family council 463 Article 1491 - Summoning of the Council 464 Article 1492 – Chairmanship 465 Article 1493 - Functioning of the council 465 Article 1494 - Steps to be taken in case measures are necessary 465 Article 1495 - Appeal from decision 466 Article 1496 - Constitution of the Guardianship council 466 Article 1497 - Procedure in appeal 466 Article 1498 - Hearing of the appeal 466 Article 1499 - Appeal from guardianship council 467 SECTION VIII 467 VERIFICATION OF PREGNANCY Article 1500 - Procedure for verification of pregnancy 467 Article 1501 - Intervention of Medico Legal Council 467 SECTION IX 467 PROTECTIVE MEASURES AND PROVISIONAL CURATORSHIP OF THE ASSETS OF THE ABSENTEE Article 1502 - Preventive measures 467 Article 1503 - Provisional curatorship 468 Article 1504 - Publication of judgment 468 Article 1505 - Enlistment and security 468 Article 1506 - Cessation of curatorship 468 SECTION X 469 JUDICIAL LEASES Article 1507 - Procedure for lease of share 469 Article 1508 - Form of lease 469 Article 1509 - Request for improvements 469 Article 1510 - Applicability to lease or common assets 469 1xxxviii Page Nos. SECTION XI 470 NOTICE FOR PRE-EMPTION Article 1511 – Procedure for giving notice of pre-emption/ preference 470 Article 1512 - Notice where the right of preference is available simultaneously to various persons470 Article 1513 - Notification in case of right of preference in various persons successively 471 Article 1514 - Notification in case of assets belonging to the inheritance 472 Article 1515 - Notice in case of assets belonging to spouses 472 Article 1516 - Notice in case of assets being joint 472 Article 1517 - Disposal of records 473 Article 1518 - Costs 473 SECTION XII 473 ESTATE IN ABEYANCE Article 1519 - Procedure to ascertain whether the heirs accept or renounce the inheritance 473 Article 1520 - Notice to heirs next after the persons relinquishing 473 Article 1521 - Acceptance of inheritance by the creditors for payment of debts 473 Article 1522 - Appointment for curator for the inheritance 474 SECTION XIII 474 EXECUTORSHIP Article 1523 - Appointment of executor 474 Article 1524 - Exemption of the executor 474 Article 1525 - Removal of the Executor 475 Article 1526 - Procedure for inspection of the Will 475 Article 1527 - Appendage to inventory 475 SECTION XIV 475 SALE OF ASSETS BY THE EXECUTOR Article 1528 - Petition of sale of assets by the executor 475 Article 1529 - Steps to be followed in case of opposition 475 Article 1530 - Procedure in absence of opposition 476 SECTION XV 476 EXERCISE OF THE RIGHT OF THE SHAREHOLDERS OF THE COMPANY SUB-SECTION I 476 JUDICIAL INQUIRIES Article 1531 - Procedure for ordering inquiry 476 Article 1532 – Procedure in inquiry 477 Article 1533 – Preventive measures 477 Article 1534 – Right to apply for inquiry at the stage inquiry in extra judicial liquidation 477 Article 1535 – Regime of costs 477 1xxxix Page Nos. SUB-SECTION II 478 REMOVAL OF THE ADMINISTRATOR Article 1536 – Only Court to withdraw powers of administrator 478 Article 1537 – Procedure to withdraw powers 478 SUB-SECTION III 478 CONVENING THE MEETING AND ASSEMBLY OF THE SHARE HOLDERS Article 1538 – Procedure for convening of general body or meetings of members 478 SUB-SECTION IV 479 REDUCTION OF CAPITAL OF THE COMPANY Article 1539 –Requirements of application 479 Article 1540 – Objection 479 Article 1541 – Decision 479 SUB-SECTION V 479 ENDORSEMENT, CONVERSION AND DEPOSIT OF THE SHARES AND OBLIGATIONS Article 1542 – Right to apply for endorsement on shares or liabilities 479 Article 1543 – Initial petition and subsequent steps 480 Article 1544 – Execution 480 Article 1545 – Proceedings during vacations 480 Article 1546 – Conversion of nominative documents into bearer documents 480 Article 1547 – Deposit of shares or obligations in the bank 481 Article 1548 – Mode of depositing 481 Article 1549 – Legal effect of deposit – responsibility to admit the same 481 SUB-SECTION VI 481 EXAMINATION OF THE BOOKS AND DOCUMENTS Article 1550 – Petition and summons for examination of books of accounts and documents 481 Article 1551 – Subsequent steps - books of accounts and documents 482 Article 1552 – Execution 482 SUB-SECTION VII 482 INSTALLATION OF THE BOARD OF THE COMPANY Article 1553 – Procedure for appointment of office bearers 482 Article 1554 – Execution 482 SECTION XVI 483 MEASURES CONNECTED WITH SHIPS OR THEIR CARGO Article 1555 – Expert inspection of ship, to ascertain its navigability 483 Article 1556 – Other expert inspection of ship or its cargo 483 xc Page Nos. Article 1557 – Notice incase of a foreign ship 484 Article 1558 – Sale of ship for innavigability 484 Article 1559 – Judicial permission for acts to be done by the captain 484 Article 1560 – Appointment of consignee 484 BOOK IV 487 ARBITRAL TRIBUNAL TITLE I 487 VOLUNTARY ARBITRAL TRIBUNAL CHAPTER I 487 ARBITRATION AGREEMENT AND ARBITRATION CLAUSE Article 1561 – Permissibility of arbitration agreement 487 Article 1562 – Parties to arbitration agreement should be competent to enter into contract 487 Article 1563 – Requirements of agreement 487 Article 1564 – Lapse of agreement 487 Article 1565 – Arbitration clause 488 CHAPTER II 488 ARBITRATORS Article 1566 – Appointment of arbitrators 488 Article 1567 – Acceptance – exemption 489 CHAPTER III 489 PROCEDURE Article 1568 – Freedom to agree on procedure – steps in case there is no agreement on procedure 489 Article 1569 – Place and mode of functioning of arbitral tribunal 490 Article 1570 – Oath for the arbitrators 490 Article 1571 – Procedural steps 490 CHAPTER IV 490 ARBITRAL AWARD Article 1572 – Power to decide 490 Article 1573 – Drawing up of the award 490 Article 1574 – Binding force of award 491 CHAPTER V 491 APPEALS Article 1575 - System of appeals 491 Article 1576 – Giving up right to appeal 491 TITLE II 491 STATUTORY ARBITRAL TRIBUNAL Article 1577 – Statutory arbitration 491 Article 1578 – Appointment of arbitrators – Umpire 491 Article 1579 – Replacement of arbitrators – liability of defaulting arbitrator 492 Article 1580 – Applicability of provisions relating to voluntary arbitration 492 xci COMPARATIVE TABLE PORTUGUESE CIVIL PROCEDURE CODE 1939 CIVIL PROCEDURE CODE 1908 & OTHER LAWS Representation of persons without legal capacity Articles 10 – 16 Consent or agreement by persons under disability – S.147 Suits by or against minors and persons of unsound mind – O.XXXII C.P.C. Representation of the State Article 21 Suits by or against Government – S.79 Notice – S.80 Exemption from arrest and personal appearance – S.81 Suits by or against the Government or Public Officers in their official capacity – O.XXVII, C.P.C. Representation of collective persons Articles 22 – 25 Suits by or against Corporations – O.XXIX and Suits by or against firms and persons carrying on business in names other than their own – O.XXX Parties Locus standi – Proper, necessary parties, joinder of parties Articles 27 – 29 & 31 Joinder of parties – Order I, CPC Joinder of causes of action Consolidation of suits Articles 30 & 280 Joinder of causes of action – O.I, rr. 3-7 Saving of inherent powers of Court – S.151; Consolidation /Joint Trial of suits. Representation by Advocates Articles 32 – 44 Recognized agents and pleaders – O.III C.P.C; Powers of Attorney Act 1882; Contract Act, 1872 Ss. 182-238, Advocates Act 1961. xcii Execution Articles 45 – 61 Articles 801 – 943 Execution Ss. 36-74. Execution of Decrees and Orders – O.XXI C.P.C. Jurisdiction Articles 62-121 Jurisdiction of the Courts and res judicata Ss. 9-21A International jurisdiction Article 65 Subject of Conflict of Laws / Private International Law Assurances of impartiality, Conflict of interest of judges, Suspicion. Articles 122 – 137 These in our law are dealt with in case law under “bias” in natural justice normally in administrative law. Allotment and distribution of cases Articles 209 – 227 Civil Manual, by the Civil Courts and High Court Appellate side rules. Summons and notices Articles 228 – 263 Issue and Service of summons Ss. 27 -32 – O.V C.P.C. Proceedings Articles 264 – 279 Pleadings – O.VI Amendment of pleadings Articles 277 and 278 Pleadings – O.VI Amendment of pleadings – r. 17 of CPC Stay of proceedings Articles 281 – 289 Stay of Suit S.10 of C.P.C. Abatement Articles 290 – 306 Abandonment, Withdrawals, Compromise – O.XXIII Admission of claim - O.XII Written Statement, Set-Off and Counter Claim O.VIII Appearance of parties and consequence of non- appearance – O.IX Examination of parties by the Court – O.X Valuation of the cause Articles 310 – 324 Suits Valuation Act 1887 and Court Fees Act 1870. xciii Joinder of parties Third Party Party procedure Articles 325 – 364 Third party procedure – Bombay High Court, Amendment to CPC; O. VIII, r. 23 to 36. Parties to suit – Suit in name of wrong plaintiff – O.I, r.10 Forgery of documents in judicial proceedings Articles 365 - 375 Is not part of Civil Procedure in our system. Bringing heirs on record is part of a wider title (substitution of parties) and includes successors of legal persons also. Articles 376-382 Death, Marriage and Insolvency of parties – O.XXII Liquidation i.e. quantification of relief is not exactly statutory law in our midst. Articles 383 – 385 Preventive and Conservatory proceedings. Articles 386 – 435 Specific Relief Act, 1963 – Ss. 38 – 42 Temporary injunctions and interlocutory Orders - O.XXXIX of C.P.C Supplemental proceedings – S. 94(e) Provisional restoration of possession Article 400 This embodies the principle of temporary mandatory injunction (AIR 1990 SC, AIR 1990 SC 867, Dorab Cawasji Warden vs. Coomi Sorab Warden) Seizure Articles 409 – 419 Execution of Decrees and Orders - O.XXI Attachment - r. 41-57 Compensation, for wrongful attachment Article 425 Sole para Compensation for obtaining arrest, attachment or injunction on insufficient grounds – S.95 CPC Seals, Enlisting and Receiver Articles 429 – 435 Appointment of Receiver – O.XL Supplemental proceedings – S.94(d) xciv Security - Furnishing, reinforcing security is much more detailed. Articles 436 – 452 Supplemental proceedings – S.94(a) & (b) Arrest and attachment before judgement – O.XXXVIII, Security for costs – O.XXV Cost, fines and damages are in much greater detail. Articles 456 - 468 Costs – S. 35, Compensatory costs in respect of false or vexatious claims or defences – S.35A, Costs for causing delay – S.35B Payment into court – O.XXIV Costs – O.XXA Security for costs – O.XXV Plaint – Articles 480 – 486 Plaint - O.VII Absence – Articles 487 – 489 Appearance of parties and consequence of non- appearance – O. IX Written Statement Articles 490 – 505 Written Statement, Set-Off and Counter Claim – O.VIII Admissions Articles 491 – 494 Written Statement, Set-Off and Counter Claim – Denial to be specific – O.VIII, r. 3-5 Counter claim Article 506 Written Statement, Set-Off and Counter Claim - Particulars of set-off to be given in written statement – O. VIII, rr. 6, 6A to 6G. Rejoinder & Sur Rejoinder Articles 507 – 511 Written Statement, Set-Off and Counter Claim - Subsequent pleadings – O.VIII, r.9 First hearing Articles 512- 516 Admissions – Judgement on admissions– O. XII, r. 6, Disposal of the suit at the first hearing – O.XV xcv Questionnaire = Specification Article 515 Issues – O. XIV Evidence Article 517 – 646 Proof of facts in general Articles 517 – 526 Documentary Evidence Articles 527 – 646 Indian Evidence Act, 1872; C.P.C. O.XIII, XVI, XVIA, XVIII and XIX. Evidence Act, S. 3 onwards till S. 58; S.101 to

View on India Code →

Section 16