Section 2

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Decide any other questions even though on the merits of the case, provided the material before it enables the court to pass a conscientious decision. Article 964 – Hearing of arguments and judgement - If there are no preliminary objections, the steps that have to be taken before the trial and which the court finds necessary shall take place, and it shall always be mandatory to the judge to enquire the moral and economic positions of the parties, the facts pleaded by the party and everything else which is found useful to know to clear the position of the parties. This shall be followed by the trial in the following manner:- a) The parties being present by themselves or otherwise represented, the judge shall enquire so as to find out whether the matter can be settled; b) If he does not succeed in conciliation, he shall proceed for examination of the parties when applied for, and thereafter to the examination of the witnesses; c) At the end of the examination, the curator of the minors and the advocates shall be heard and each one of them may use the opportunity only once and for a time not exceeding half an hour. § Sole Paragraph: The hearing may be adjourned only once and on account of justified absence of any of the parties or of the witness which the party does not desire to drop. 303 Article 965 – Judgement - The final judgment shall be passed within a period of 20 days and the court shall direct to what extent restraint of the powers has been imposed and fixing the maintenance due to the minors by exercising discretion judiciously and taking into consideration all the circumstances. § Sole Paragraph: If the restraint is put by the court, the council of the family shall be called upon to appoint the guardian. Article 966 – Appeal - From the final judgment, appeal from judgment lies to the High Court. The appeal may or may not have the effect of staying the operation of the order, as the court may direct. § Sole Paragraph: The provisions contained in this article are equally applicable to appeal from order referred to under article 963, when such order puts an end to the proceedings. Article 967 – Incidents - The substitution, recusal, exclusion and removal of the guardian appointed by the tutelage shall be conducted as incidental proceeding and dependant on the application for restraint on powers. § 1: The substitution shall take place in the case of death or when guardian is disabled from exercising tutelage. In the first case, the substitution shall be applied by the curator of the minors or by parents, friends or neighbours of the minor immediately producing on record the death certificate; in the second case, the substitution shall be applied by the guardian. § 2: The excuse may be applied by the guardian, with the specific indication of the grounds for an inquiry of which necessary steps shall be taken. § 3: The exclusion and removal may be applied by the persons who may apply for the substitution in the case of death, immediately producing the proof on record. Article 968 – Suspension of power of parent or guardian and deposit of minor - As an act preparatory or incidental to the application of restrain of the parental control or on guardianship, the suspension of the power and the deposit of the minor may be immediately ordered, if the summary inquiry shows that the father or the guardian is manifestly incapable either physically or morally, to take care of the son or of the pupil. These steps lapse if the application for inhibition is not filed within 15 days or if, due to the 304 negligence of the plaintiff, the proceedings are kept pending for more than 30 days. § 1 : The deposit shall take place in the house of a suitable family, preference being given to the relations bound to provide maintenance; such course being not possible, the minor shall be placed in the custody in a boarding school or institute of beneficence. Provisionally, pension which the parents or the tutor are directed to pay for the sustenance and education of the minor, shall be fixed immediately. § 2: The custody of the minor shall be made by the means of a record that shall specify the conditions of the deposit. Article 969 – Lifting of inhibition - The vacating of the inhibition shall be applied before the tutelage and shall be processed by way of appendage to the file of inhibition. Such prayer may be made only upon passage of 3 years from the order of inhibition or the decision which has rejected the previous prayer. Upon the guardian and the curator of the minors being notified to contest within the period of 10 days, the petition shall follow the steps prescribed for the inhibition. CHAPTER II TERMINATION OF THE TENANCY AND OF THE SHARE CROPPING AGREEMENT SECTION I REMEDIES AVAILABLE TO THE LANDLORD7 Article 970 – Modes in which landlord may terminate tenancy after its capacity - When the landlord wishes to terminate the tenancy at the end of the stipulated period or the period which the law deemed to be, the tenant shall be notified as per the agreed anticipation, and in the absence of the agreement, 60 days before the termination of the contract of tenancy of one year or more, 30 days prior in case where the tenancy is for more than 3 months and less than one year 305 7 Termination of tenancy – (Art. 970 – 998) redemption of mortgages (999-1006), sale of pledged goods (Art. 1007-1011). These are procedures which are not part of Civil Procedure Code in our system. and 10 days in case of tenancy for a period up to 3 months. The notice shall be served by means of service of summons for the suit for eviction or by means of miscellaneous judicial notification. The landlord may in addition to the notice of termination call upon the tenant to affix the placards, if the property is building and denoting vacancy of the tenancy if locally such practice is followed. The fixation of placards imposes obligations on the tenant to permit inspection of the premises between 1 p.m. to 4 p.m. to whosoever proposes to take the premises on the tenancy. § 1: If the tenancy is for residential purposes, the service of summons or notification may be made on any person of the house when the tenant is not found in the premises, which shall have same effect as if the service is made on the tenant in person. If the house is locked the general rules shall be observed. § 2: The landlord may also notify the tenant out of the court. But such a notice shall only produce effects if the tenant affixes such placards or if the landlord obtains from the tenant a written declaration that he is deemed as evicted or equivalent. Article 971 – Initial petition for eviction - With the petition for the suit for eviction or with the application for the judicial sundry notification, the landlord must annex the document of tenancy, if it exists. When the law requires the document and the landlord does not annex it, nor plead that he can supply the deficiency, the service of summons or the notification shall not be ordered when by simple inspection of the document it is found that the tenancy does not terminate on the date indicated by the petitioner or if the service is applied for without due anticipation prescribed in the law. Article 972 – Defence and rejoinder - If the landlord gets the service of summons done on the tenant, for eviction, the defendant may, within 5 days, file the written statement and it may plead therein nullities, exceptions or incidents, and raise any other defences, or ask including for improvements or compensation for damages. The plaintiff may file rejoinder to the plea raised in the written statement, within a period of 5 days. In the written statement and in the rejoinder all the steps to be taken shall be listed and the list of 306 witnesses shall be submitted, and the witness residing outside the Judicial Division shall not be accepted unless the parties volunteer to present them before the court. Article 973 – Curative order and questionnaire - In the following five days, the curative order referred to under article 514 shall be passed. When the suit is to proceed further, provisional eviction shall be ordered, when the written statement does not stay its operation and the order shall be passed in compliance with the provision of the article 515, and objections against such order are to be filed within 48 hours and each of the parties shall have 24 hours to give their say to such objections. The objections shall be decided in the following 48 hours by an order which may only be challenged in appeal from the final judgment. Article 974 – Arguments and judgement - Only the procedural steps which the judge finds indispensable shall be ordered and thereafter date will be fixed for the trial. Judgment shall be delivered within 8 days subsequent to the trial. Article 975 – Eviction by notice - In the event the landlord makes use of sundry notice through the court, the concerned employee shall inquire from the tenant at the time of service of the notice, whether he accepts or not the eviction and shall record in the report of the service the reply obtained from the tenant. When the notice does not reply or gives evasive answer, it is presumed that he accepts the eviction, if he within 5 days does not make it known to the landlord, by way of notice through registered letter with acknowledgement due or inland letter in duplicate or telegram that he will not vacate the premises on the date indicated in the notice. Article 976 – Rights of landlord when tenant does not receive notice - If the tenant does not accept the eviction sought by way of sundry notice, the tenant may use the suit for eviction referred to in articles 971 to 974 or apply on the ground mentioned in the notice, at the end of tenancy period, that eviction order be passed against the tenant. If the notice has been sent with the anticipation indicated in article 970, the summons for eviction shall have effect even though it might have been done beyond the limitation prescribed therein. 307 Article 977 – Procedure for immediate termination of tenancy - When the landlord or the purchaser of the property, proposes to have immediate eviction, he will take steps to serve summons on the tenant or his successors to, within the period of 5 days, contest the prayer or vacate the premises. Such suit shall follow the steps prescribed in the articles 971 to 974; § 1: The procedure established in these articles is applicable to all the cases in which it is intended to immediately put an end to the tenancy, which ever may be the ground. § 2: If the prayer is based on non-payment of rent, which ought to have been done in advance, the eviction shall take place at the end of the period till the time rent have been paid, without prejudice to the loss which was incurred by the tenant on account of non fulfillment of the contract. In such case, and being a case of premises, the landlord even may pray that the tenant affixes the placards and gives his inspection from 1 to 4 pm to the person who propose to take it in tenancy. Article 978 – Effect of contest - The written statement suspends the eviction. However, if the case of eviction is based on non payment of rent and the document of the tenancy having been annexed, the defendant does not prove immediately by way of document any of the following facts: a) He has effected at appropriate time the payment or the deposit of the rent; b) The rent is not accrued in view of change in the date of payment of the rent; c) Having deposited, beyond the limitation, when it is a case of building premises, three times the rents already accrued. § 1: If the case is of rural properties, provisional eviction may be ordered if there is a reasonable ground to believe that the written statement is merely a dilatory tactic. § 2: If there is dispute as to the quantum of the rent, the eviction shall be suspended provided that the tenant proves that in accordance with clauses a) and c) having paid or deposited amount not less than which is found in the contract or that which by way of document established may be demanded legally. § 3: In the case of clause c) the defendant is liable to pay the costs of the proceedings and fees of the advocate of the plaintiff which shall be awarded as per the practice of Judicial division. 308 The eviction shall be stayed, even when the documents referred to in the clause are produced after the order in the eviction, provided that the eviction has not been given effect. § 4: When the defendant claims improvements which permit retaining lien the eviction shall not be ordered until the plaintiff proves by way of document, the payment or deposit of the amount claimed. Article 979 – Rents accrued during pendency of proceedings - Which ever may the ground of eviction, in the event the defendant fails to pay the rent which accrues during the pendency of the suit, the plaintiff may apply, on such ground for immediate eviction. Upon the hearing the tenant, if he does not prove, by way of document, that he did the payment or deposit, the eviction shall be ordered. To this case is applicable what is provided in clause c) and paragraph 3 of the previous article. Article 980 – Judgment against Plaintiff as being in bad faith - When the ground for eviction is non payment of the rent and it is proved that the tenant has paid it or deposited in due time, the plaintiff shall be held as litigant in bad faith, except if he establishes that he was ignoring the fact; in any case he shall indemnify the defendant for loss caused. The same will follow when the tenant proves any of the facts designated under no. 1 to 5 of article 759 of the Civil Code. Article 981 – Liability of landlord for fraud - When it is found that the landlord filed the suit or applied for eviction through notice served on dummy tenant, in order to achieve through his connivance or silence, the eviction of true tenant he will be directed to pay fine as litigant of bad faith and to pay compensation for loss, and beside that subject to along with supposed tenant for a criminal liability for the offence of defamation. Article 982 – Use of summary procedure - In whatever is not prescribed specifically in this section and in the following, what is provided for summary proceedings shall apply and recourse will be taken to the ordinary proceedings and the general provisions to the extent the summary proceedings is silent. But, there shall be stay as to the operation of the judgment when appeal is filed from final 309 judgment ordering eviction from premises meant for residence and subject to special regime of the protection of tenant. Article 983 – Applicability to agricultural partnership - Whatever is provided in this and other articles of the chapter is applicable to the rural properties, for the lease, as well as of contract sharecropping.  Civil Code article 1303. SECTION II REMEDIES AVAILABLE TO THE TENANT Article 984 – Means for tenant to terminate tenancy at the end of term - Whenever the tenant proposes to put an end to the tenancy at the end of the period stipulated or which is deemed as terminated, he shall inform the landlord with the anticipation fixed in the article 970. The notice shall be issued through court, except in the case of a building and where there is a practice in the land to affix placards, because in such cases the notice shall be substituted by affixation of placards. What is provided in article 971 and in the first part of article 975 is applicable to the service of notice. The employee shall retain the certified copy of the report of service to the landlord if he so demands. § 1: The landlord may satisfy through any officer of the court, the fact of affixation of the placards without need of any order. The officer shall make a record signed by him and two witnesses which he will hand over to the landlord, keeping one copy to the tenant. § 2: The tenancy is considered as ended, irrespective of notice or affixation of writings, if the tenant vacates the premises out of court and the landlord declares in writing that he accepts the eviction. Article 985 – Means for tenant to end tenancy immediately - What is provided in the previous article excepting what is said about the anticipation of the affixation of placards is equally applicable to the case of the tenant, who for which ever reason intends to put immediate end to the tenancy. 310 SECTION III EVICTION, AFFIXATION OF PLACARDS AND REOCCUPATION THROUGH ORDER OF THE COURT Article 986 – Eviction warrant - After the eviction is ordered, if the tenant does not vacate the property at the end of the tenancy or within 5 days, as per article 970 or article 977, the landlord may apply that the eviction warrant be passed and have it enforced through court employee or any authority. The applicant shall put at the disposal of the executor all the means necessary for the removal, transport and deposit or movables and objects which are found. If it is necessary to break open the door or control the resistance offered, the person entrusted with execution of the order shall requisition the intervention of police and assistance of any administrative authority and in their presence the door‘ will be broken open and the same shall be recorded in the report. Article 987 – Stay of eviction - The warrant of eviction shall be executed who ever may be the person found in the occupation of the premises, except: a) If such person produces document of lease or document of any other lawful enjoyment originated from the execution applicant; b) If he produces the document of sub tenancy arising from the execution opponent. Upon the verification of any of the circumstances foreseen in the above two clauses, the executor shall stay the eviction, making a report and keeping on record the title. The occupant shall within 3 days apply for confirmation of stay of eviction, failing which the warrant shall be executed immediately. The applicant shall produce the documents and the judge after the hearing the landlord shall decide summarily. Whether the suspension is to be maintained or whether warrant should be executed. In case of clause b) the judge shall examine whether sub tenancy is in condition of producing effects against the landlord. § Sole Paragraph: The eventualities mentioned in the clauses a) and b) cease to operate when the occupant has been heard and decision passed. 311 Article 988 – Stay of eviction on ground of sickness - There shall also be stay of eviction, in a case of tenancy of building premises for habitation, when it is found by certificate issued by the physician under oath or solemn affirmation that if the execution is carried out, the life of the person is in risk in view of the disease he is suffering. In the certificate period during which the stay of eviction should operate shall be stated. The certificate may be presented to the judge before passing the warrant of eviction and also may be shown at the time of execution of the eviction. In such case the executor shall follow whatever is provided in the previous article. The court shall hear the landlord and shall decide what is appears to be just. The landlord may apply that at his cost the patient is examined by two doctors appointed by the judge. Article 989 – Warrant for fixing placards - If the landlord has applied for the affixation of the placards in accordance with article 970 and Paragraph 2 of article 977 and the tenant has not put after eviction having been ordered, the lessor may apply that the order will be passed to make for the fixation. For the execution of the order, provisions of article 986 and 987 are applicable. Article 990 – Other cases of warrant of eviction - What is provided in articles 986 and 987 is equally applicable: 1) To the case of landlord applying service of notice to the tenant or vice versa and the notified person accepting eviction; 2) To the case of tenant affixing placards and the landlord making the record of satisfaction of such fact; In either of these cases, if the tenant does not vacate the premises at the end of the tenancy or within 5 days or if he does not make the affixation of placards, the landlord may apply on the basis of notice served or on the record made that warrant of eviction be issued or at affixation of placards be done. § Sole Paragraph: When in the act of execution of the warrant the tenant alleges the placards were placed without his consent and knowledge, the executor shall stay the eviction and the tenant, within 5 days shall apply that suspension be confirmed and tendering the evidence to substantiate 312 his plea. Upon the examination of the documents or evidence of 5 witnesses, if the court is of the view that there is a semblance of truth in the allegation, the landlord shall be notified to within 5 days give his say and thereafter whatever is said in the last clause of subsequent article shall follow. Article 991 – Eviction warrant in special cases - When it is seen that the case foreseen in last part of Paragraph 2 of article 970 is satisfied or when the tenant has not accepted the termination done by way of notice or when the landlord has not satisfied the fact of affixation of placards, if the tenant does not vacate the premises, the landlord may apply that eviction be done after the hearing the tenant. The applicant shall produce in the first case the placards of the tenant and the second prove of service of notice. In the third case he shall produce three witnesses who are to depose over the fact of fixation of placards. After the examination of the documents and evidence of the witnesses, the application shall be rejected or notice will be issued to the tenant to give his say within 5 days. If the summoned tenant contests, date will be fixed for the trial and judgment, which shall take place within 8 days. In the trial what is provided in the case of concise proceedings shall be followed, however, extracts the evidence of the witnesses shall be maintained when the decision admits appeal.  See also Article 800 of this Code. Article 992 – Warrant for re-entry - The eviction having been ordered if the decision ordering the eviction is reversed and the tenant desires to re-enter in the use and enjoyment of the property, he shall apply that order be passed for his reoccupation. For the execution of such order, the provision of article 986 shall be applicable. SECTION IV DEPOSIT OF RENTS Article 993 – Deposit of rents - When the tenant is unable to make the payment of the rent because circumstances mentioned in article 759 of the Civil Code are satisfied, he has right to deposit the rent within 8 days after the accrual. 313 The deposit shall be made in the establishment where the judicial deposits are made, on the basis of declaration presented in duplicate and signed by tenant or by some other person in his name, in which there is identification of the premises and quantum of rent, period of deposit, names of the landlord and of tenant and the ground for deposit. One of the copies shall remain with the depositor with a note that deposit has been effected. Article 994 – Court deciding deposit of rent - The deposit shall be at the order of the court of the suit for eviction, if suit is filed, and if not at the order of the court of situation of property. Upon the deposit being made, the tenant shall apply that notice be sent to the landlord, if he is known, to contest the deposit, except where he has been summoned in the suit for eviction and not yet filed the written statement. In this last case, upon the production of document of deposit along with the written statement, the landlord may challenge the deposit in the reply. In the last case if the proof of deposit is annexed to the written statement, the landlord may contest the deposit of rent. Article 995 – Challenge to deposit - The challenge to deposit may be made in the suit for eviction on the ground of non payment of rent when the landlord wants the eviction. If the landlord is notified before the filing the suit, if he propose to challenge the deposit, he shall institute the suit within period of 10 days from the date of notice and pleading also the grounds of objection to the deposit. If the suit is already pending, the landlord shall challenge the deposit in answer to the written statement or within the period of 5 days when notice is given after the written statement was filed by the tenant. With the challenge to the deposit all the documents shall be produced and also apply for other evidence. When the landlord does not want eviction, he may challenge the deposit within 10 days by observing what is provided in articles 1026 and following. Article 996 – Effect of deposit - The deposit made within legal time is a bar for provisional eviction independently of the notice from Court, but does not bar final eviction if not notified. If Eviction suit is filed before Court notice of the deposit, the tenant shall be ordered to pay costs and plaintiff advocates fees in terms of Art. 978, if the deposit is not challenged. 314 § Sole Paragraph: In the order referred to in article 973, the judge shall take cognizance of the validity of the deposit and its effect except if the decision depends upon evidence which is not yet produced. In such case the order shall be confined to direct that the deposit suspends provisional eviction and in the rest it will be decided in the final judgment. Article 997 – Successive deposits - Until the fact which gave rise to the deposit of a certain instalment of rent, subsists the tenant shall deposit the subsequent installment rents without the need to offer the payment again nor apply for notification of successive deposits. Such deposits shall be considered dependence and consequence of the initial deposit and the respective documents shall file in the proceedings in which the document of first deposit is filed. Article 998 – Withdrawal of deposit by landlord - The landlord may withdraw the deposit by stating in writing that he has not challenged the deposit nor he wants to challenge it. The writing shall be signed by the landlord himself or by his advocate, and the signature shall be identified by the notary when no identity card has been produced. When the deposit is challenged, withdrawal may take place only after the challenge is subsequently decided and in accordance with the decision. § Sole Paragraph: If the declaration referred to in the first part is false, the challenge shall be of no effect and the landlord shall incur in the fine equal to double of the amount deposited, without prejudice to the criminal liability for an offense of false declaration. CHAPTER III REDEMPTION OF THE MORTGAGE AND EXTINCTION OF THE PRIVILEGES Article 999 – Redemption of mortgage in case of full payment to creditor - Whoever has right to apply for redemption of mortgage and he desires to obtain it in the manner provided under clause no. 1 of article 938 of the Civil Code, shall apply that respective creditors be summoned to receive the amount of their credits. Upon the production of the proof which permits the redemption and production of certified copy of the mortgage inscriptions and satisfying that thing mortgaged is registered in favour of 315 applicant, date and time will be fixed for the payment of the credits in the office of the court and after summons to the creditors already entered in the transmission registration records to come to receive on the pain that in default amount shall be deposited. Record shall be made in the file of the amounts deposited. Once the debts under mortgage are paid and deposited the amounts not collected, the assets shall be redeemed and registration in favour of the creditors summoned shall be cancelled.  See articles 938 to 948 of the Portuguese Civil Code. Article 1000 – Redemption of mortgage in case of judicial sales - If the property mortgaged has been acquired by way of judicial sale or by way of award in public auction and all the creditors with mortgage registered prior to the registration of transmission have been notified, the applicant shall deposit the price of auction or of the award and after the redemption of the properties from the mortgages the rights of the respective creditors shall stand transferred to the price. Thereafter they will be summoned to enforce their rights in the same proceedings in accordance with article 865 and following.  Civil Code article 938 no. 2 Article 1001 – Redemption of mortgages in other case - In all other cases, the applicant of the redemption shall declare the value for which the assets are acquired by him or the value which he estimates, if they are acquired by gratuitous title or by way of exchange and shall summon the creditors in order to contest the fact within 10 days, failing which it will be deemed that they are accepted. There being no challenge, the applicant shall deposit the amount declared and redemption shall be ordered in the manner indicated in the previous article.  Civil Code article 938 no. 3 Article 1002 – Disputing of valuation by Creditors - The creditors may challenge the value if they establish that amount offered is less than the amount of the credits under mortgage registered and under privilege. After the objection, the assets will be sold in public auction in favour of person offering highest bid compared to value declared by the applicant. If there is no bidder, the value declared shall subsist and what is provided in the second part of 316 previous article shall be followed. If there is somebody who offers a price higher than the one quoted by the applicant and after depositing the price or part thereof which the bidder was bound to deposit, what is provided in second part of the previous article shall follow. § Sole Paragraph: To the auction provisions of judicial auction shall be applicable. Article 1003 – Notice to creditors - Once the redemption has been granted as in the case of article 1001, the creditors who have chosen the advocate at the domicile of the seat of the court shall be notified to within the period of 10 days, put their claim and rights and thereafter provisions of articles 865 and following shall be followed. The final judgment of redemption shall produce effects as to other creditors independent of the notice. Article 1004 – Redemption of statutory mortgages - What is provided in the previous articles is applicable to the redemption of statutory mortgages with following modifications: a) For the redemption of mortgage constituted in favour of minor, absentee or interdicted, the Public Ministry shall always be summoned and the pro-guardian, if there is one; b) For the redemption of mortgage in relation to dowry created by third party, summons shall be issued to the person who has given the dowries, if they exist; c) The part of the product corresponding to statutory mortgage for the debt still not matured shall be converted into a certificate of debt registered and endorsed with the declaration of burden in favour of the person to whom the principal belongs.  Civil Code article 906 Article 1005 – Redemption of mortgage securing periodical installments - If the obligation guaranteed by mortgage consists in periodical installments, the product shall be converted into certificates of the debt of the income corresponding to the amount of the installment, endorsed with the declaration that interest belongs to the creditor until installment is paid.  Civil Code article 940 Article 1006 – Applicability to the extinction of privileges over ships - The proceedings established in this section are applicable to the extinction of the privileges by sale or gratuitous 317 acquisition of ships and uncertain creditors shall be summoned by publication of 30 days.  Commercial Code article 579 No.2 and 3. CHAPTER IV SALE AND AWARD OF THE PLEDGED GOODS Article 1007 – Petition in suits for sale of pledged goods - The creditor who intends to be paid from the pledge, upon the time limit stipulated for payment or at any time, when no time has been stipulated, shall apply that the debtor be summoned to, within 20 days, pay the debt or state his objection, if any. The plaintiff need not produce the instrument of the debt and may also ask for payment of compensation for expenses necessary for the preservation of the pledged good. § Sole Paragraph: If the pledge has been created by a third party, the third party is also to be summoned for the purpose of the suit and may appear also as principal party.  See Black’s Law Dictionary, 8th Edition page 147. Article 1008 – Steps to be followed in the absence of contest - If the defendant neither pay the debt nor contests the plaint, sale of the pledge shall be ordered. The sale shall be conducted by the court, without need of the valuation, and the debtor as well as third party, who has created the pledge, shall be served with an anticipation of 10 days, by way of publication affixed at the door of the court or published in a newspaper of the locality, if any, and by following the procedure, to the extent applicable of the provisions relating to sale through court in the execution proceeding. From the proceeds of the sale, the creditor shall be paid, after payment of the costs and the balance shall be given to the person who created the pledge. If the debt is not fully satisfied, the creditor may, in the same proceeding, indicate to the court the properties of the debtor for the purposes of attachment, and thereafter the procedure for recovery of payment of certain amount shall be followed. § Sole Paragraph: If the case is of the pledge over credit instrument, the sale shall be done through a broker or any banking establishment on the day fixed with previous notice to the debtor and third party who have created the pledge. 318 Article 1009 – Steps to be followed when there is contest - If there is a written statement, the normal procedure of ordinary proceedings or summary proceedings shall follow, depending upon the value of the suit. When the defendant pleads that the amount claimed is exaggerated it is for him to prove the quantum of the amount, and in such case the sale of the pledged goods shall not be stayed, unless the defendant deposits the amount which is not contested; but, such provision is not applicable for the compensation referred to in article 1007. If sale of the pledged goods has been done before the trial of the suit, amount shall be deposited to the extent it exceeds the admitted amount. If the suit is decided in favour of the plaintiff, further steps for the sale of object of the pledge, the provisions of preceding article shall be followed or the deposit of the proceeds shall be appropriated for the satisfaction of the debt for the desired purpose. Article 1010 – Procedure for adjudication of the pledge - If it is agreed that the creditor shall remain with the pledged object as per its value then the procedure established in preceding articles shall be followed. If there is no contest or the defense case is held not tenable or when the debtor disputes only the quantum of debt, valuation shall be done and thereafter award will be made in favour of the creditor upon the payment of or deposit of excess, if any, over the value . If the debt does not stand paid, provision of third clause of article 1008 shall apply.  Civil Code article 864. Article 1011 – Redemption of pledge - At any stage of the suit the person who has created the pledge may redeem the same by paying the debt and costs. CHAPTER V RENDERING OF ACCOUNTS SECTION I ACCOUNTS IN GENERAL Article 1012 – Notice to render accounts - In the suit for accounts the defendant shall be summoned to present the accounts within 20 days, failing which he will be debarred from 319 challenging the accounts presented by the plaintiffs. The defendant may pray that period be extended, justifying the necessity for the extension.  Civil Code article 1339, 1732, 1905 and 2085 etc.  Articles 1012-1022 – Rendering of accounts o These accounts would be relevant in the case of Inventory Proceedings. Article 1013 – Preliminary question - If the defendant, instead of rendering the accounts contests the obligation to render the accounts, after hearing the plaintiff, the preliminary question shall be decided, upon taking necessary procedural steps, which may be found necessary. If it is decided that the defendant is bound to render the accounts, he shall be notified to present the accounts within 10 days, failing which, steps of preceding article shall apply. Article 1014 – Steps to be followed when defendant does not submit accounts - If the defendant does not present the accounts within the time fixed, the plaintiff may present them within 30 days. The defendant shall not be permitted to contest them and the judge shall decide the matter as he deems fit and the court may appoint any other person fit to give his view on the accounts presented by the plaintiff. Article 1015 – Steps when defendant submits accounts - If the defendant presents the accounts in time, the plaintiff may contest them within 20 days. The defendant may rejoin within 10 days and thereafter, without further pleadings, the steps of ordinary or summary proceedings shall follow, depending upon the valuation of the suit. § 1: The defendant shall present the accounts as in the manner of current account, specifying the source of income and amount spent indicating the balance, and shall produce the supporting documents except in cases where there is no practice of demanding a receipt. The entry in the accounts of the items of income, are binding on the defendant. However, the plaintiff may challenge those items alleging that the income ought to have been higher than indicated; and he may insist also that the defendant substantiate the declared income. § 2: If the accounts presented by the defendant indicate balance in favour of the plaintiff, the later may apply that the former be notified to within 10 days, pay the balance failing which steps will be taken for the attachment and to follow further steps for the execution for specific amount. Such application, however, does not prevent the plaintiff from challenging the accounts on any other grounds. 320 Article 1016 – Power of judge when accounts are not contested - If the accounts or some items are not contested by the plaintiffs the judge will appreciate freely as per his knowledge and experience considering the evidence led by the defendant. If the defendant desires to lead oral evidence by witnesses, by way of arbitrament or examination of the plaintiff, he shall apply the same within 8 days next to the time limit for filing written statement. Article 1017 – Procedure in case of voluntary submission of accounts - If the accounts have been voluntarily rendered by the person who is bound to render them, the opposite party shall be summoned to contest the same within 20 days. To this case what is provided in the previous two articles shall apply and whatever is provided for the defendant may be read as referring to the plaintiff and vice versa. Article 1018 - Ancillary Accounts - Accounts to be rendered by the head of family, guardian, guardian ad litem and any other administrator appointed by the Court, shall be appended to the file where the appointment is made. § Sole Paragraph: The head of family is bound to render the accounts annually, from the date of the opening of the inheritance and to deposit in the establishment where judicial deposits are made, the balance which after hearing the parties and curator of orphans is found fit for the expenses of the administration. In the accounts rendered, the amount paid to the heirs, in accordance with sole paragraph of Article 2073 of the Civil Code shall be deducted under the head of amount spent.  These deposits are made as per paragraph 3 of Portaria No.96 77 dated 30/10/1940. SECTION II 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 - The accounts of the tutor and of the curator or administrator of the 321 prodigal shall be rendered in accordance with Paragraph 1 of article 1015, without being in duplicate, except where there is protutor. Once the accounts have been presented, file shall be sent to the Public Ministry, in order to give his say and take such steps as he deems fit, within 20 days. Also, notice shall be given to the protutor, if any, in order to contest the same within same time. Any relative of the interdicted, eligible to succeed him, may contest the accounts within the time which could be availed by protutor or, within the time of 20 days from the date of presentation if there is no case of notifying the protutor. With the written statement other evidence shall be listed or applied for. The tutor or curator may, within 10 days next, reply to the written statement and list the evidence which is to be led. After complying the above procedural steps which the judge or family council finds indispensible, the accounts shall be decided by the judge or by the council at the trial, following in this case procedural steps of summary proceeding and only the evidence which the court or family council hold to be necessary. The decision passed shall be included in the record of the hearing. § 1: If the accounts are not contested, there is no case to conduct any trial and what is prescribed in the first part of article 1016 shall be followed; but it may be insisted that tutor or curator may lead specific evidence and also may use the power conferred in the last part of article 1014. § 2: The interdicted on account of prodigality and the minor who is more than 14 years shall be heard on the accounts or at the time of the trial or before passing the judgment, in the case of preceding paragraph.  Civil Code articles 249, 321, 339, 351 no. 2. Article 1020 – Procedure to compel the submission of accounts - If tutor, curator or the administrator does not voluntarily render the accounts, he shall be notified to present them within 20 days, at the instance of the Public Ministry, of the protutor or any other relation who would succeed the interdicted. The period may be extended, as per the discretion of the judge upon the justification for granting the extension. If the accounts are presented in time, thereafter, the steps of the preceding article shall follow. If not, the accounts shall be worked out by the office, on the basis of inventory proceeding. The 322 income from the immovable properties, if not known, it shall be computed as 5% of its value. Article 1021 – Rendering of accounts in case of emancipation, majority or lifting of interdiction - What is provided in previous two articles shall not be applicable to the accounts which shall be rendered to the ex-ward, in the case of emancipation or majority, or to the ex- interdict, in the case of lifting of the interdiction. Such accounts shall follow the steps provided in the preceding section, and before the delivery of judgment, the Public Ministry is to be heard and the protutor if any. Article 1022 – Accounts of Court Receiver - The accounts of a Court Receiver shall be presented in duplicate in terms of paragraph 1st of Article 1015 and thereupon notice shall be given to the person who made application seeking accounts, to contest the same and after the written statement is filed, what is provided in the Article 1019, § 1st shall be followed. On the accounts, so presented notice shall be given to the opposite party in the suit for accounts and judgment shall be passed. In case the accounts are not offered suo moto, the Applicant may demand that the depository presents the accounts within twenty days. The accounts being presented in time, the provisions of this article shall be followed. If not, the procedure prescribed in Article 1014 shall be followed. CHAPTER VI PAYMENT IN THE COURT Article 1023 – Application for deposit in Court - Whenever, the debtor proposes to exonerate himself from the liability in any of the cases foreseen in articles 759 and 760 of the Civil Code, he shall apply to the court of place of the fulfillment of the obligation, that the amount due be permitted to be deposited into the court, mentioning the ground for such payment into court. The payment may also be asked by a third party, when the latter proposes to pay on behalf of the debtor and the case fits in either of eventualities mentioned in the aforesaid articles. § Sole Paragraph: The payment shall be made in the establishment where the judicial deposits are made. If the deposit is of the thing which is not in conditions of being deposited in the Bank, a 323 special receiver shall be appointed to whom the same thing shall be entrusted. To such receiver the provisions relating to deposits of attached properties are applicable.  Articles 1023-1031 – Payment in the Court - Corresponding provisions in C.P.C. 1908: - o Payment into Court – O. XXIV rr. 1-4 Article 1024 – Summons to the creditor - Once the payment into court has been made, the creditor shall be summoned to contest the same within the period of 20 days. If the creditor is uncertain, the summons shall be served by way of publication, on any person who appears to have right over the amount or the thing deposited, The Public Ministry shall be summoned to contest the case in case no party puts, in appearance, within the period fixed to contest the deposit. Article 1025 – Consequences of not contesting - If there is no defence within the period, immediately order will be passed declaring that the obligation stands extinct and the costs shall be on the account of the creditor. Article 1026 – Grounds of contest - The deposit may be contested: a) Because the ground is not well founded; b) Because the amount is higher or the thing is different from that which is deposited; c) Because suit has or execution has already been filed, for this enforcement when request has been made to make the deposit, even though the debtor has not been summoned; d) Because the creditor has any other valid ground to refuse the payment which was offered to him. Article 1027 – Procedure when contest is not on ground that amount or thing is higher or different - Where there is no dispute as to the type or quantum of the obligation and the deposit is contested only on any of the grounds mentioned in clauses a), c) and d) of the preceding article, the plaintiff may reply within 10 days, and thereafter the steps to be followed shall be of the summary proceeding. § 1: If the defence is accepted, the debtor shall be held liable as if deposit was not there, and the payment was on account of the deposit. In the matter of the costs of the suit, of the liability of the debtor, will comprise also the expenses made with the deposit and which the creditor had to incur with the vacating of the deposit. 324 § 2: If the creditor has filed the suit or instituted the execution, before the service of summons of the proceeding for deposit and if the debtor has applied for the deposit before the service of summons to the suit or execution, the suit filed at the second place, shall be appended to the former and after the pleadings are over it shall be enquired whether the payment was tendered before or after of institution of the suit or execution. If it is found that there is a previous tender, the obligation shall be considered as extinct in view of the deposit and the creditor shall be liable to pay costs. If it is found that the tender is subsequent and at the time of offer the creditor make known to the debtor that there was already pending suit or execution, what is provided in Paragraph 1 shall be followed. Article 1028 – Procedure when objection is that amount or thing is higher or different - If the creditor proposes to contest the deposit on the basis of ground mentioned in clause (b) of article 1026, he shall contest the claim and formulate appropriate prayer, except where the court has no jurisdiction to take cognizance of the subject, either on the merits of the matter or of the hierarchy. The debtor shall reply within the period of 10 days and thereafter, depending upon the value of the suit, the provisions of ordinary or summary proceeding, subsequent to the contestation shall follow. Where the debtor does not reply, what is provided when the defendant does not raise any opposition in ordinary or summary proceeding shall be observed. If the prayer of the creditor is tenable, the deposit shall be supplemented, except where the amount demanded was higher; if the thing is different, the deposit will be without any effect and the debtor shall be directed to fulfill the obligation. § 1: If the creditor possesses the title which is executable he may apply, within the time limit fixed for contestation, that the debtor be summoned to satisfy the obligation or make alternate prayer failing which in the same proceeding steps of execution shall follow. § 2: If the creditor, at the time of service of the proceeding of the deposit, has already filed the suit or filed the execution demanding the amount or relief larger or different from that deposited, shall make a declaration within the time limit fixed for contesting the deposit shall pray that the proceeding of deposit be appended to the suit or execution as the case may be. § 3: When the court of deposit has no jurisdiction either on merits or in hierarchy, to take 325 cognizance of the prayer, the creditor shall declare, within the same time, that he is going to file a suit or execution in the competent court and then shall apply for the appensation of the files. The suit or execution shall be filed within 10 days. § 4: In case of periodical installments, the debtor may deposit those installments which may accrue until the proceedings are pending, without necessity of offering again the payment nor applying for the summons to the creditor. Such successive deposit shall be considered consequence and dependence of the initial deposit; and whatever it is decided in relation to the initial deposit shall apply to the former. If the proceeding has been forwarded in appeal, the successive deposit may be made in the court of the first instance (Trial Court) even though no integral authentic and certified copy of the document has not been kept on record. Article 1029 – Procedure where creditor is doubtful - When there is a case foreseen in article 760 of the Civil Code, the various creditors shall be summoned to assert and substantiate their rights, If within the time limit fixed in article 1024 there is no challenge made to the case of the debtor, the obligation shall be considered as extinct and the amount deposited shall be distributed equally amongst the summoned creditors. If the deposit is challenged, the steps mentioned in the preceding articles shall apply depending upon the ground of challenge. § 1: If there is no challenge to the deposit, but one of the creditors proposes to substantiate his right against other creditors he shall make his claim within the period in which challenge could be made and as many copies shall be supplied as the number of creditors summoned The debtor shall immediately be exonerated from the obligation and the file shall proceed between the creditors, in accordance with article 1027. § 2: With the challenge on the ground of clause (b) of article 1026, any creditor may join other prayers mentioned in preceding paragraph. In such case there shall be in the same proceedings two parallel and connected causes, one between the objecting creditor and the debtor, and other between the former and the remaining summoned creditors. Article 1030 – Depositing of price of sale or remission of census or fees - What is provided in articles 1023 and following is applicable to the deposit of the price of the sale in the case foreseen in article 1584 of the Civil Code and to the deposit of the price of redemption of census in Article 326 1644 and 1706 or Article 1653 and 1654, all of the Civil Code or of ‘Foro when the “census” or “foro” holder do not arrive at the agreement with the holder of “census” or holder of direct dominion or cannot for any other reason get the extra judicial redemption. § 1: If the deposit is based on article 1584 of the Civil Code is not contested or if the challenge was rejected, the deposit shall subsist for the purpose of not permitting the seller to lift the same without stopping the interference or without furnishing security. As soon as security is furnished or the vendor demonstrates with the consent of purchaser that the interference stopped, the price deposited shall be collected by the seller. § 2: In case of redemption of census or of fore the burden shall be declare extinct and respective registration shall be cancelled, when there is no challenge or same was rejected or the deposit is completed.  Civil Code Article 1654 Paragraph 1 to 3. Article 1031 – Depositing of amount as incidental proceedings - When there is pending a suit or execution over a debt and the debtor has already been summoned, the later desires to deposit the amount or the thing which he is liable to pay, he shall apply that creditor be notified to receive it, in the court on the day and time fixed on the penalty of the amount being deposited. § 1: If the creditor receives the same without any reservation, the proceeding will come to the end. § 2: If he receives with the declaration that he is of the view that he is entitled to larger quantity, the suit shall continue but, value of the same shall be reduced to amount in dispute, and the procedure corresponding to such valuation of the suit. § 3: If the creditor does not appear to receive the amount, the obligation shall be considered as extinct from the date of the deposit if it is decided that the creditor had right only to the amount or thing deposited; if it is decided to the contrary, whatever is provided in the third clause of article 1028 shall be observed. § 4: What is provided in this article is applicable to the cases foreseen in the Paragraph 2 of article 148 of the Commercial Code and in articles 1040 and 1041 of the Civil Code. 327 CHAPTER VII POSSESSORY REMEDIES SECTION I POSSESSORY SUITS Article 1032 – Procedure for possessory suits - To the possessory suits of prevention, of maintenance and of restitution, after the written statement without further pleading, the provisions of ordinary or summary suit, depending upon the value, shall be applicable, save what is provided in the following articles. § 1: When the plaintiff has asked that he be maintained in possession and the court finds that there is room for restitution, the court shall not desist from granting such relief; similar course shall be followed in the inverse case. § 2: In the appeal filed against final judgment of the Trial Court, no stay is to be granted.  Article 1032 – Possessory remedies - Corresponds to Specific Relief Act of 1963. Article 1033 – Claim of ownership - The defendant may in the written statement, plead that he has title to the property object of the suit, and seek that such declaration be granted to him. In such case, there may be replication and triplication, if the steps of ordinary suit are to be followed and rejoinder to the written statement if steps to be followed are of summary suit. Article 1034 – Subsequent steps - Where the plaintiff does not contest the right of property pleaded by the defendant, the suit shall come to the end and costs shall be awarded against the plaintiff. In the contrary case, the dispute shall be decided in the curative order, if the defendant adduces sufficient documentary evidence to prove his right to the property, in which case also costs will be awarded against the Plaintiff. If the question of title, cannot be decided in the preliminary order, the relief as prayed by the Plaintiff shall be granted against the Defendant, when the Defendant has not contested the possession pleaded by the Plaintiff and the suit shall proceed for a limited purpose of resolving the question of title and the Defendant may pray that the Plaintiff may furnish security. 328 Article 1035 – Final Judgment on property and possession - Where the suit proceeds further to resolve question of title as well as question of possession, in the final judgment both the questions shall be decided. However, where the question of title is decided against the Plaintiff, even if question of possession is in favour of the Plaintiff, the same shall have bearing only in the matter of costs, which in such case shall be paid half by each party. SECTION II THIRD PARTY OBJECTIONS Article 1036 – Purpose and requirements of Third party objections - Whenever the attachment, seizure, inventory of the articles, delivery of possession by the court, eviction and any other procedural steps directed by the court offends the possession of third party, the later may seek restitution of his possession by means of objections. The objector applicant shall plead the possession and demonstrate that he has the position of a third party, and submit the list of his evidence. § 1: Third party is one who was not party to the proceedings or to the judicial act in which the offending order of the court was passed, nor represents any party against whom the offending order was passed nor has given any undertaking to comply with the obligation. The person against whom the court has passed the order or given any undertaking may file objections as third party in relation to the assets which, as per the title of its acquisition, or by capacity in which he was possessing them, could not have been subject matter of the court order. § 2: The third party objection filed against attachment of the mortgaged assets for payment of mortgaged credit, when the reason for institution of objection has arisen from and act prior to the registration of the mortgage. Article 1037 – Filing of objections – Order of admission or rejection - The objections shall be an attachment to the proceedings in which order has been passed offending possession of the objector and are to be instituted within 20 days from such act or the date on which the objector got knowledge of the same. After the recording the evidence of the witnesses, not more than five in number and upon the perusal of other evidence produced, to substantiate the possession and character of third party, the 329 objections shall be accepted or rejected. The rejection may be dependent on any ground which has bearing on the merits of the objections. § 1: No objections shall be accepted if the assets have been sold through court or have been awarded by the court. § 2: The objections shall be rejected when the possession of the objector is based upon the transmission effected by the person against whom the court proceeding is pending and it is manifest that as per the date or any other circumstance that the transmission was effected in order that the transferor may escape his liability. Article 1038 – Steps after filing - If the objections have been admitted, all the steps of the proceeding of which the objection proceeding are dependency and the objector may apply provisional restoration of possession, upon furnishing security. The party who has taken the procedural step which offended the possession of the objector, shall be notified to contest the objection within the period of 10 days. With the opposition list of witnesses will be given, not more than 5 in number and all the documents shall be annexed. In case there is no opposition, the provisional restoration of possession shall be converted into definitive or the objector shall be restored the possession and the order earlier passed which has offended the possession of the objector shall be of no effect. In the event the objections have been contested, thereafter evidence shall be led and lastly the final judgment it is to be passed within 15 days. Within 5 days after the inquiry is over, parties may present their submissions in support of their right. § Sole Paragraph: The objector may modify his list of witnesses up to three days after the period for filing the opposition is over, provided the number does not exceed five. The parties may also apply, in their pleadings, the cross examination of their adversary and cross examination of the person who initiated the procedural steps which gave rise to the objections. The arbitrament may be applied for within the time given to the opponent to change the list of witnesses.  1945 in Revista de Direita, vol 4, page 123. Article 1039 – Third party objections as preventive relief - It is lawful to the third party objector to initiate preventive objection after the order is passed but before the same is given 330 effect to, as provided in article 1036 and which shall have preventive effect to avoid dispossession. In the rest, the procedure prescribed in preceding articles to the extent applicable shall be followed. No effect shall be given, to the order directing possession until order is passed admitting or rejecting objections. In the event objections are accepted the execution of the order shall he stayed until the final decision on the objections. Article 1040 – Disputing of ownership - The party notified to contest the objection may raise in the written statement the question of ownership, either claiming ownership in himself in respect of assets, subject of dispute or that they belong to the person against whom the proceedings affected by the objection were taken. If this happens, the provisions of articles 1033 onwards shall be followed. Article 1041 – Third party objection by married woman - The married women, having the position of the third party, in accordance with paragraph 1 of article 1036, may without authorization from the husband, defend her position by way of objection in relation to dotal assets or exclusive assets or common assets. However, the objections shall not be admissible in relation to common assets when the wife has filed objection of third party: Clause 1: If the creditor has confined himself to seek the attachment in relation to the rights of the husband alone in the common assets of the matrimonial estate; Clause 2: If the debt is commercial nature and the creditor had issued summons to the wife to apply for separation of the assets within 10 days from the date of the attachment. Article 1042 – Third party objection for securing maintenance - Whenever, the attachment or seizure is ordered over the income of dotal or exclusive assets of the wife, but administered by the husband, she may avail of third party objection, even though she has liability in the debt and income is joint if in view of the attachment or seizure, she is deprived of necessary maintenance.  Civil Code article 1230. 331 CHAPTER VIII POSSESSION OR DELIVERY THROUGH COURT Article 1043 – Basis for judicial possession - Law admits the procedural steps of delivery of sundry possession through court. Such procedural steps shall have as its basis a document transmitting property without condition precedent. When the transaction is subject to registration, the documents proving that such registration has been effected or that it is in condition to be effected shall be annexed.  Civil Code Articles 953 and 984. Article 1044 – Petition for sundry possession through Court - The interested party shall move the petition and pray that the occupant be summoned to contest within the period of 10 days, failing which delivery of possession shall immediately be effected. Article 1045 – Subsequent steps - If the person summoned does not contest, the plaintiff shall be put in possession and record of the delivery shall be made; if he contests, the applicant may rejoin within 5 days after the 10 day period is over, followed by evidence within the 8 following days and judgment being passed within 10 days. § 1:In the written statement all the defence shall be raised and after the rejoinder all documents shall be listed and list of witness shall be submitted, which shall not exceed more than 5 for each party, irrespective of number of plaintiffs or of the defendants and thereafter, other types of evidence may be applied for. § 2: The arbitrament shall be admitted only when it is absolutely necessary for the decision of the litigation and shall be done by only one expert, appointed by the judge. § 3: No evidence by way of letter of request outside the jurisdiction of court shall be allowed. Article 1046 – Objection where the person summoned possesses in the name of another - When the person summoned possesses in the name of other, the objection may be filed by him or by the possessor in his own name or by both. § 1: The possessor in the name of another shall issue notice, immediately through court or outside the court to the person in whose name he exercises the possession, failing which he will be liable 332 for compensation for the losses and damages. If the notice has not reached to the knowledge of the party in time to contest, the person already summoned shall take up the defense of his rights, with the same responsibility. § 2: Any interested party may be admitted to defend his possession by way of contest independently of the service of summons, provided that it is done within the time granted to the person summoned to contest. In such case, howewer, each contesting party mayproduce upto five witnesses. Article 1047 – Judgment - The court shall pass the judgment deciding summarily whether the possession should be given or the thing should be delivered and in what terms. When the contesting party pleads possession in his own name, it will be inquired whether his posession should prevail or that of the original plaintiff. When the objector proves that he is in enjoyment of the property by virtue of lawful title which was not put an end to by proper remedy, the possession will be granted to the applicant without prejudice to the use and enjoyment. § Sole Paragraph: Even though the law requires the production of document to prove the lease, the contract may be proved by any other means of evidence, when the lessee proves that the lack of title is attributable to the negligence, coercion, fraud or bad faith of the landlord. Article 1048 – Liability in case of fraud - If there is a case of service of summons on a dummy possessor to achieve with his connivance or passivity, the dispossession of real occupant, the applicant shall be liable to pay loss and damages and also shall be held to be litigant with bad faith. Same penalty shall be imposed on the party summoned if there is acquiescence on his part. Article 1049 – Appeals - From the judgment appeal from order lies, if the value exceeds pecuniary jurisdiction of the court. The appeal from order previously passed shall be forwarded along with appeal from final judgment. Article 1050 – Saving of possessory suits and other lawful remedies - The decision passed does not prevent that loosing party uses his normal possessory remedies or any other competent remedy. 333 CHAPTER IX SUITS FOR ARBITRAMENT Article 1051 – Procedure in suits for arbitrament in case of opposition to the prayer - In the suits to prevent damage, in accordance with Articles 2323 and 2338 of the Civil Code, acquisition for private purpose, stoppage or change of easement, demarcation, apportionment amongst co- holders of Emphyteutic fee (“foro”) and “census”, reduction of undefined installments, division of waters, division of common property, and in all suits in which intended to have the arbitrament, the parties will be summoned to show cause, within 10 days why the experts should not be appointed immediately. In the event, the prayer is contested, the procedure of ordinary or summary suit, shall be followed, depending upon the value of the suit. § Sole Paragraph: What is provided in this article and following shall be applicable to the division of common property when the co-ownership is originated from the inventory proceedings, but the suit shall be appended to the inventory. Article 1052 – Appointment of experts - If there is no written statement or if the plea raised in opposition is held untenable, date shall be fixed for the appointment of experts. After the appointment, the experts shall proceed to do the demarcation within the time fixed. The third expert shall be bound to agree with any of the experts so that there should be a majority. Article 1053 – Confirmation or alteration of act of experts - The parties shall be given notice of the report and they may within 10 days, raise objection, para wise as they deem fit. If there is no objection, the report shall be confirmed by judgment; if there is objection, the opposite party may give reply para wise, within 10 days, and thereafter without further pleadings, the procedure of ordinary or summary suit shall be followed, depending upon the value of the suit. Article 1054 – Peculiarities of suit to prevent damage - In the suit for prevention against the damage the defendant as soon as he is summoned, shall suspend the construction of the work; if he does not do so plaintiff may apply for restraining orders. 334 If in the construction there is a deviation from what was ordered, the judge, on the application of the interested party shall direct demolition of the work or removal of the objects, after verifying first existence of the verified breach by way of new arbitrament, which shall take place with the same experts, wherever possible. Article 1055 – Attempt at conciliation in acquisition for private purpose- In acquisition for private purpose, it is compulsory before the appointment of the experts, an attempt to settle the matter over quantum of damage is compulsory and even though no agreement has been arrived at, amount which is demanded or tendered will be recorded in the proceedings. Article 1056 – Requirement of judgment authorizing stoppage or deviation of easement - The final judgment which permits the stoppage or deviation of the easement, shall have no effect unless there is a completion of the work from which depends the stoppage or deviation. The doubts arisen on the aspect of completion or not of the works as per terms fixed shall be decided by the judge after taking necessary procedural steps which are necessitated. Article 1057 – Special terms in demarcation suits - In the suit for demarcation, where there are no title deeds or where they are insufficient for the fixation of dividing line, the parties shall indicate in the plaint the boundaries of each property resulting from the possession or any other evidence, or the parties shall pray that the suit land be distributed in equal parts. Where the Plaintiff seeks demarcation in accordance with the title deeds which he possesses, the owners of adjoining properties, when they do not contest, shall produce their title deeds at the time of appointment of experts. If they, after the examination, declare that the documents do not help them to demarcate the land, meeting of the interested parties shall be convened at the site, along with the experts and efforts will be made to work out an agreement as to the fixation of dividing line. If there is no agreement, any party may indicate within 5 days, the points from where the dividing line should pass. If the indication is done by only one party, other parties shall be given notice to raise objection within 10 days. If there is opposition, without any further pleadings, the procedure of ordinary or summary suit shall be followed depending upon the value. In the absence of any objection, the dividing line shall be fixed in the manner it is indicated. 335 Where more than one interested party indicate the dividing line and the indication differs, the other shall be given notice and irrespective whether there is objection from other parties, the procedure of ordinary or summary suit shall be followed, depending upon the value. § Sole Paragraph: Where it is necessary to place boundary marks, the experts appointed shall perform that act. Article 1058 – Adjudication in partition of property - In the suit for division of a common property after fixing the shares, there shall be one meeting of the parties in order to make an award. In the absence of agreement between the interested party present, the award shall made by way of sortition. If there are persons under disability, the agreement must have sanction of the court after hearing the Public Ministry. Article 1059 – Steps when the thing is not divisible - If the plaintiff is of the view that the property under indivision cannot be physically divided on account of its nature or without detriment or that the law does not permit such division, all these details shall be mentioned in the plaint or the law which oppose such division such statement shall be mentioned in the petition with the request to the co-owners to be summoned to contest, failing which, there will be allotment by award or by way of sale. In the absence of the contest, all the interested parties shall be notified for a meeting to declare whether they agree that some of the parties be satisfied in kind and others in cash. If there are legally incapable parties, what is provided in the last part of the previous article shall be followed. In the event there is no possibility of making any allotment, the thing shall be sold and provisions relating to sale in execution proceeding shall be followed. Article 1060 – Steps when co-ownership or indivisibility is disputed - In the event the co- ownership is disputed, the steps of ordinary proceeding or summary proceeding shall be followed depending upon the valuation of the suit. If the indivisibility is contested, whatever is provided in articles 1052 and 1053 shall be followed, except where the question is purely of law and can be decided immediately. 336 Article 1061 – Indivisibility raised by summoned parties or by experts - If the plaintiff applies for division and any of the co-owners asserts in the written statement that the thing cannot be divided, whatever is established in the previous articles where the indivisibility is contested shall be followed. If the parties have not raised the question of the indivisibility, but the experts declare that the thing cannot be divided physically, the steps described in article 1053 shall be followed. If the declaration made by the experts is confirmed, whatever is provided in the second clause of article 1059 shall be followed. Article 1062 – Steps to regulate and share repairs where there is an agreement - The captain of the ship who proposes to regulate and allocate the gross averages shall present to the court the agreement signed by all the interested parties in respect of appointment of allotees in odd numbers not greater than 5. The judge shall handover to the oldest of the dividers the report of the sea, the protest, and all the books on the board of the ship and more documents concerning the disaster, to the ship and to the cargo. Within the time fixed in the agreement or fixed by the judge, the dividers shall give in writing in detail their report as to the distribution of the average signed by all in one document. The time may be extended if it is found that there is insufficiency of the time. If the parties have not expressly withdrawn any opposition to the agreement, after the submission of the report of the dividers, the steps provided in article 1053 shall be followed. In the case of withdrawal, the report of the dividers shall be immediately homologated. § Sole Paragraph: The same steps shall be observed when, on account of lack of initiative of the captain, the regulation and repartition had been undertaken by the owner of the ship or by any of the owner of the cargo. In the case of applicant does not present the documents mentioned in the second clause of the article, the captain of the ship shall be notified to within the time fixed to produce them, failing which they shall be seized. The proceeding shall be continued, even though without aforesaid documents, which shall be substituted by the particulars which are available.  Commercial Code article 652. Article 1063 – Annulment of proceedings for non intervention of any interested party - If it 337 is found that in the agreement some of the party did not take part, on his application whatever has been processed shall be annulled. The application may be presented at any time, even after the judgment becomes res-judicata and shall be annexed to the proceedings of regulation and repartition. Article 1064 – Steps where there is no compromise - In the absence of the agreement, the captain or any of the owners of the ship or of the cargo shall apply that date may be fixed for the appointment of dividers and that all interested parties be summoned for such appointment. If the parties do not arrive at agreement as to the appointment, the captain, or, in his absence, the representative of carrier of the ship shall appoint one, the interested party of the respective cargo shall appoint another and the judge shall appoint the third for the purpose of decision. After the appointment is made, the steps prescribed in article 1062 shall be followed. Article 1065 – Limit of scope of intervention in compromise or appointment of dividers - The intervention in the agreement or in the appointment of the dividers does not amount to acknowledgement of the nature of the average. Article 1066 – Steps when any foreign party is ex-parte - If in the regulation and repartition any interested party is foreigner and who is ex-parte, as soon as the absence is established notice is published through consular agent of the respective country if there is in the port where the ship appear, in order that thereby may be proper representation of their nationals, if desired. Article 1067 – Limitation of suit for gross averages - The suit for gross averages may be filed within one year from the date of discharge of the cargo or in the case of jettison of the cargo, of the arrival of the ship to the port of destination. CHAPTER X RECONSTRUCTION OF CREDIT INSTRUMENTS OF THE FILES AND BOOKS SECTION I RECONSTRUCTION OF CREDIT INSTRUMENTS Article 1068 – Petition and summons for reconstruction of destroyed credit instruments - Whoever proposes reconstruction of the credit instruments which are destroyed, shall describe the 338 said credit instruments and give in summary their content their destruction and for this purpose he may file documents to prove the same and upto five witnesses. If on the basis of evidence adduced, the judge is the view that the petition requires consideration, he shall fix the date for the meeting of the parties and for the same meeting the parties who have issued the instruments or undertaken obligation and each of the parties shall be summoned with copy of the petition in duplicate. If in the event there are uncertain interested parties and the documents has been issued or subscribed in foreign country, the time for service may be extended up to six months. Thereafter, notice shall be fixed at the Exchange where the document is quoted.. In the publication and notices all the particulars of the instrument shall be given in detail wherever possible and if they are not available, what is strictly necessary for their identification shall be observed.  Articles 1068-1081 – Reconstruction of credit instrument, files and books: o Not a matter of civil procedure in our midst. Article 1069 – Steps where there is agreement - The meeting shall be presided by the judge and report shall be made of all the happenings. If all the interested parties present agree in the reconstruction, the essential particulars of the credit instrument shall be reproduced in the record and reconstruction shall be directed by oral decision which shall be transcribed in the record. Once the judgment becomes final for want of appeal, the plaintiff may apply that the issuing authority or the parties who has undertaken the obligation shall be notified for the purpose of, within the time which were fixed, issue fresh instrument, failing which the record made by the court and certified copy of the same be treated as reconstructed document. Article 1070 - Steps where there is no agreement - In the absence of the agreement, the dissatisfied parties may file their written statement within the period of 10 days. If there is no written statement the judge shall direct the reconstruction as per the particulars given in the plaint and after the judgment becomes res-judicata whatever is provided in last part of the previous article shall be considered substituted by the petition and the judgment. If there is a contestation, the plaintiff may reply within 8 subsequent days and thereafter without any further pleadings, the steps of ordinary proceedings or summary proceedings shall be followed, depending upon the valuation of the proceedings. 339 Article 1071 – Applicability to reconstruction of stolen, lost or misplaced document - The procedure established in the previous articles in application to the reconstruction of the instruments, stolen, spoiled or lost with following modifications: a) Notices shall be issued by publication in two newspapers of the locality largely read, where presumably theft, spoilage or loss has taken place, or of nearest locality, identifying the instrument and inviting anybody who is in possession of the same to produce it before the court; b) If the instrument surfaces at the time of the meeting and all the interested parties agree that the same may handed over to the plaintiff, report shall be made of the same and file will be closed. In the event the instrument has surfaced at later stage meeting will be convened to decide about the delivery; c) If the document has not surfaced until the suit has come to the end, reconstruction shall be ordered and it shall be declared that the document which not found has no legal value. Article 1072 – Applicability to reconstruction of other documents - In the case of reconstruction of the documents which are not comprised within the meaning of article 1068, whatever is prescribed in this section shall be applicable to the extent permissible. SECTION II RECONSTRUCTION OF FILES Article 1073 – Petition for reconstruction of files - In the event there is a destruction or disappearance of any file, any party may apply for reconstruction declaring the status of the litigation and mentioning, as per his memory the particulars which he possesses and giving all other particulars which may assist the reconstruction of the file. The application shall be supported by copies or pleadings of the file destroyed or lost which the plaintiff is able to provide and with the proof of the fact which permits the reconstruction made by declaration of the person in whose custody file was there at the time of the destruction or disappearance. 340 Article 1074 – Meeting of parties - After getting the say of the head of the office, if the fact of the reconstruction is justified, the judge shall fix the day for the meeting of the parties and all other persons who have intervened in the proceedings in the past shall be summoned to appear before the court and producing before the court duplicates counters, certified copies, documents and other papers connected with the file which is intended to be reconstructed. The meeting shall be presided by the judge and then the head of the office shall produce whatever he has filed or registered with reference to the proceedings destroyed or disappeared. Whatever has happened in the meeting shall be recorded in the file in precise terms the parties have agreed. The report of the court shall be treated as part of the reconstruction to the extent there is an agreement. Article 1075 – Steps in absence of agreement - If the entire file is not reconstructed by agreement of the parties, any party summoned may within 10 days give his say on the part reconstructed, where there is a difference and thereafter there will be pleadings in form of replication and triplication, as in the ordinary proceedings. With these pleadings thereafter production of evidence will start. Article 1076 – Judgment - After the evidence is led and after the employees of the office are heard, if necessary and after taking necessary steps, judgment will be passed in which with all procedure it shall be recorded at what stage the file was there and thereafter what is reconstructed as per the agreement and the steps to be reconstructed. Article 1077 – Reconstruction of pleadings, orders and evidence - If it is necessary to reconstruct the pleading, the reconstruction shall be deemed as done on the strength of duplicates produced. In the absence of duplicates, the parties are permitted to plead again. If the decision is already passed and it is not possible to reconstruct the same, the judge shall decide the case afresh as he deems fit. If the reconstruction includes production of the evidence, the same shall be reproduced, if possible and if it is not possible shall be substituted taking afresh. 341 Article 1078 – Reappearance of original file - In the event the original file resurfaces, the further steps shall be followed therein and the file of reconstruction shall be appended to it. From this file only the step following the last step recorded in the original file, will be made use of. Article 1079 – Liability of one who gave cause to the reconstruction - The file shall be reconstructed at the cost of the one who has given cause for the destruction or disappearance, without prejudice to the criminal and disciplinary liability which the defaulter has incurred. Article 1080 – Reconstruction of file misplaced or lost in higher court - In the event there is disappearance or destruction of any pending file in the High Court or the Supreme Court, the reconstruction shall be applied before the assignee judge and provisions of articles 1073 and 1074 shall apply. If there is no agreement between the parties as to the total reconstruction, the following shall be observed: a) If there is need to reconstruct the steps recorded in the trial court, the file shall be remitted to the court where the initial proceedings started, and by annexing the integral certified copy, if there is one and shall follow the steps prescribed in articles 1075 to 1078 counting 10 days fixed in the article 1075 from the date of notice of remission of the file to the lower court. The steps taken in the superior court which could not be reconstructed shall be reconstructed in the respective court with the intervention of same judges and functionaries who have intervened in the original file; b) If the reconstruction is only the steps taken in the superior court, the file shall be sent before the respective court and the steps established in articles 1075 to 1078 shall be followed and the assigned judge shall exercise the functions of the judge. The judges next to the assigned judge shall intervene whenever necessary to substitute any collective judgment is passed in the original file. SECTION III RECONSTRUCTION OF BOOKS Article 1081 –Proceedings to decide demands for over reconstruction of Registration Books- Where there are demands for reconstruction of the books of the land registration offices, after 342 receipt of the proceedings sent by the conservator, notice will be issued to the claimants and any other interested parties to, within 10 days give their say and produce any evidence. After the necessary steps are taken and after hearing Public Ministry, the objection shall be decided. CHAPTER XI 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 – When a conservator, a notary or other public employee refuses to perform any registration or any act which may be applied for, and appeal therefrom lies to the Court of the respective division if the party declares that he wishes to prefer an appeal, the public servant shall handover to the applicant within 48 hours an exposition specifying the grounds for refusal. Within subsequent 20 days the appellant shall present to the court his appeal petition, annexing thereto the exposition given by the public employee and any other documents. In the appeal petition, the interested party shall demonstrate that the ground for the refusal are not tenable.  Code of Predial registration articles 252 and 253, Notarial Code article 222; Code of Civil Registration, articles 439 to 442.  Articles 1082 – 1088 - Appeals against Orders passed by conservators, notaries etc. o Is peculiar to the Code. Article 1083 – Subsequent steps - Independently of any order the proceeding shall be sent to the judges, for 3 days, to the Public Ministry to express his view. Thereafter, the judgment will be passed within 8 days. The interested party who wants to support the refusal may by application say within the time fixed for the judgment to give his say on a matter. If the refusal were found untenable, he shall be directed to pay costs. Article 1084 – Appeals - From the final judgment the aggrieved parties, Public Ministry and the public employee who has refused the registration may file appeal from order. From the collective judgment which decides the appeal from order, always appeal shall lie from the order to the Supreme Court. The appeal from order will have the effect of staying the operation of the impugned order. 343 Article 1085 – Handing over documents and information to disciplinary authority - Once the appeal is finally decided, the documents shall be returned to the parties without keeping on record any notes or other particulars. The copy of the decision shall be sent to the disciplinary authorities to whom the public employee who has caused the refusal is subject, whenever the appeal court finds it convenient. Article 1086 – Appeal from doubts raised by registrar - If the Registrar of Property records has any doubt in effecting a final registration and makes it only provisional, the interested party may also appeal in respect of the doubt raised to the divisional court. To such appeal whatever is provided in previous articles shall be applicable, and the office shall inform the Conservator, immediately after the distribution of the proceeding, that appeal has been filed and shall remit to him the definitive judgment which may be passed. Article 1087 – Hierarchical appeal - Before availing of the appeal mentioned in the previous articles, the interested party may apply to the Law Minister that direction be issued to effect the registration. After hearing the office of the Attorney General of the Republic, and if any direction is issued to that effect, the public officer shall comply with the same. Whoever feels aggrieved by such act may appeal to the court of Judicial division, thereafter the appeal in the rest shall follow to the extent applicable, what is provided in previous articles. Article 1088 – Appeal to solve questions over rectification of errors in land registration - When there are doubts raised over the rectification of the errors in the Property Register, if any of the interested parties or conservator opposes the rectification, the doubt shall be decided by the court of respective judicial division on the application of any interested party. The conservator shall, within 5 days, at the request of the appellant, make a short exposition about the proposed error, indicating the reasons favorable and those opposing the rectification and shall give his opinion saying what appears to him just. To such appeal the provision of second clause of article 1082 and in articles 1083 to 1085 shall be applicable. 344 CHAPTER XII SUIT FOR LOSS AND DAMAGES AGAINST JUDGES AND PUBLIC MINISTRY Article 1089 – When Judges and Law Officers are liable for losses and damages - The judges and Public Ministry are liable to pay compensation and damages: 1) When they have been convicted for the offence of bribery extortion, or official misconduct; 2) In the cases of deceitfulness; 3) When the law impose on them expressly such liability; 4) When there is denial of justice. If the denial of justice contains requisites necessary to constitute criminal offence, what is provided in article 1099 shall be follow.  See also Article 156 of this Code.  Articles 1089 – 1099 – Suits for compensation against judges. o Is totally unknown in our legal system. Article 1090 – Competent court - The suit shall be instituted within judicial division in which the court was functioning and the judge was exercising his functions at the time when there was occurrence of the event which is the ground for the prayer. Article 1091 – Hearing of the officer - After the receipt of the plaint, the file shall be sent through registered post to the offender judge, in order that he may, within 20 days, give his say on the prayer made and the grounds producing the documents which he deems fit. If the defendant resides in the seat of the court, the file shall be handed over to him by the clerk of the court. After the lapse of the 20 days, from the date of the receipt of the file, the offender shall remit by the same route with or without reply, or hand it over to the office. In the event he does not remit the file or delivers it, the plaintiff may file fresh plaint in the same manner and suit shall be decided against the judge. Article 1092 – Order on admission - Once the file is received it, shall be decided whether the petition should be admitted. If the case falls within the jurisdiction of Judicial division court the decision shall be passed within 15 days. 345 When it falls within the jurisdiction of High Court or Supreme Court, the file shall be remitted to the respective judges for their say being 7 days for each, concluding with the Assignee judge and then case shall be decided. If the judge or the court does not admit the suit, the applicant shall be directed to pay fine and pay damages if it is found that he acted with deceit. Article 1093 – Appeal from Order - Appeal from order lies from the decision which admits the suit or rejects the same. Article 1094 – Contest and further steps - Once the suit is admitted, the defendant shall be summoned to contest and thereafter the steps of ordinary proceedings shall be followed. The Assignee judge shall exercise up to the judgment all the functions which are within the jurisdiction of the trial court, however, what is provided in sole Paragraph of article 700 shall apply. Article 1095 – Arguments and Judgment - In the High Court or in the Supreme Court, when the file is ready for final judgment, it shall be submitted to the judges of the respective section in accordance with article 1092, and thereafter the discussion and the judgment shall be delivered in open court. In the discussion and judgment before the full court the provision of articles 651 to 656, shall apply, with exception of those which presuppose separation between decision on facts and decision on the point of law. After the conclusion of discussion the court assemble at the conference hall to deliver the respective collective judgment. The president shall have casting vote. Article 1096 – Appeal from final judgment - From the judgment of the High Court which takes cognizance in the first instance the object to the suit, appeal from final judgment shall lie to the Supreme Court. Such appeal shall be filed, processed and decided as appeal. The Supreme Court may change the decision on facts only in exceptional cases foreseen in article 712. 346 Article 1097 – Court competent for execution - If the defendant is directed to pay certain amount, the execution shall take place in the same file before the court of judicial division of the domicile of the opponent of the execution or before the nearest division if he is the acting judge. Article 1098 – Exemption of decision on admission - If once a judgment becomes final for want of appeal having reserved suit for the compensation for damages referred to in this chapter, there is no need to have prior decision as referred to in article 1092, and the defendant shall be summoned to contest. Article 1099 – Compensation for criminal conduct - When the compensation was necessary consequence, of the fact which gave rise to initiate criminal action, in the matter of civil wrong, the provisions of Criminal Procedure Code shall be followed. CHAPTER XIII REVIEW8 AND CONFIRMATION OF FOREIGN JUDGMENTS Article 1100 – Foreign Judgments subject to review and confirmation - Without prejudice to what is provided in treaties and special law, no judgment on private rights, passed by a Foreign Court or Foreign Arbitrators, shall have effect in Portugal, regardless the nationality of the parties, without the foreign judgment having being reviewed and confirmed. Review will not be required when the decision is relied upon in any pending proceedings in Portuguese Courts, as matter of evidence and is subject to appreciation by the Court deciding the matter.  Articles 1100-1106 – Review and confirmation of foreign judgments - Corresponding provisions in C.P.C. 1908: - o When foreign judgement not conclusive - S. 13 o Execution of decrees passed by Courts in reciprocating territory - S. 44A o Execution of Decrees and Orders – Notice to show cause against execution in certain cases – O.XXI, r.22(1)(b). Article 1101 – Jurisdiction - Review and Confirmation shall lie before the High Court having jurisdiction at the place at which the person against whom the judgment is sought to be enforced is domiciled or resides. 8 In this chapter “Review” simply means scrutiny of the foreign judgments by the High Court for the purpose of confirmation. This expression in this chapter does not have the same meaning as in the Indian CPC. 347 If such a person has no domicile or residence in Portugal, the High Court within who jurisdiction, the Petitioner is domiciled or residing shall have jurisdiction, except where the judgment is of patrimonial nature and it is to be enforced against the person who has assets in Portuguese territory, because in such case Revision can be asked in any of the High Courts where the assets are situated. When none of the requirements foreseen in the previous paragraphs are satisfied, any of the High Courts will have jurisdiction to entertain the matter. Article 1102 – Requisites necessary for confirmation – In order that the judgment be confirmed it is necessary: - i) that there are no doubts about the authenticity of the document on which the judgment is recorded nor about the intelligibility of the decisions; ii) that it has become res-judicata according to the law of the country in which it was pronounced; iii) that it arises from a court having jurisdiction according to the Portuguese Law rules relating to the conflict of jurisdiction; iv) that the defence of litispendence or res-judicata based on a case subject to a Portuguese Court is not available, unless it was the foreign court which prevented the jurisdiction; v) that the defendant has been duly summoned: except in a matter which under Portuguese Law would not require initial notice; and if the decree was passed against the defendant immediately, due to non-filing of Written Statement in the suit, in such event the summons should have been served on him personally; vi) that it does not contain decisions contrary to the principles of Portuguese Public Order; vii)that having been pronounced against a Portuguese National it does not violate the provisions of Portuguese Private Law when it had to be decided by the latter, according to the Portuguese Law rules of Conflict of Laws. § Sole Paragraph – The provisions of this article are applicable to an arbitral award so far as may be. Article 1103 – Procedure for review - Once the document is presented the opposite party shall be notified to file his Written Statement in 10 days. The applicant may rejoin in the 8 days subsequent to the time fixed for Written Statement. 348 In these pleadings any steps which the parties may require shall be applied for. After the steps that the Judge in charge of the proceeding considers indispensable, the inspection of the file shall be made available to the parties and to the State for the purpose of hearing, for a period of 10 days for each and thereafter duly concluded it shall go to four judges following the judge in charge of the proceedings and finally to the latter, a time of seven days being allotted to each judge for his observations and opinion. Article 1104 – Grounds of defence – The party summoned may only raise defence based on the absence of any of the requirements mentioned in Art.1102 or if it is found that any of the grounds of review specified in clauses 1, 3 & 7 of art.771 have arisen. Article 1105 – Suo-moto action by the Court – The Court shall suo-moto verify whether the requirement of clauses 1, 6 & 7 of Art.1102 arise simultaneously; and shall also suo-moto refuse the confirmation when after going through the proceedings or through knowledge obtained in the exercise of its functions it finds that any of the requirement of clauses nos.2, 3, 4 & 5 of the said article are not compiled. Article 1106 – Appeal from the final decision – From the decision of the High Court an appeal shall lie. The State may appeal on the ground of violation of clauses 3, 6 & 7 of Art.1102. CHAPTER XIV JUSTIFICATION OF THE ABSENCE AND OF THE STATUS OF HEIR Article 1107 – Petition for definitive guardianship - Whoever proposes to have definitive guardianship of the assets of the absentee, shall justify the absence and his capacity of heir and shall apply that the possessor of the assets, provisional guardian, administrator or attorney, the Public Ministry and any other known interested parties be summoned and by way of publication the absentee and unknown interested parties. § 1: The absentee shall be summoned by publication of 6 months notices; the proceedings shall in the mean time follow the normal course, but the final judgment shall not be delivered without the time fixed for publication is over. 349 § 2: If the presumed heir is the State, the Public Ministry, shall apply for definitive guardianship in its favour, as soon as the necessary requirements to grant it are satisfied. § 3: The petition for definitive guardianship shall be an attachment to the file for provisional guardianship, if the same has been granted.  Civil Code article 64.  Articles 1107-1118 – Justification of the absence and of the status of heir. o This is a procedure unknown to our system. Article 1108 – Subsequent pleadings - The parties summoned may, in the written statement, either dispute the absence or apply for the guardianship, by putting the claim either concurrently to the case of the plaintiff or in preference to the plaintiff. In the replication and sur rejoinder the interested parties may put forth their case or contest the case of the competitors or of the adversaries. Article 1109 – Steps after pleadings - After the pleadings are over, the steps of ordinary proceedings or summary proceedings shall be followed, depending upon the valuation of the cause. If there is ground for granting guardianship, it shall be granted it to the one who has the better right, but the order shall not be implemented before the lapse of 4 months after the publication of the notice affixed at the door of the house of the local administrative authority of the parish of the last domicile of the absentee and notice published in a newspaper of the taluka in which the said parish is located and in one of the most widely read newspapers read in Lisbon. In case there is no newspaper in the taluka, the publication shall be done in a newspaper of the locality nearest to the seat of the Taluka. Article 1110 – Procedure where there is no contest - After the time fixed for filing of written statement for the parties who are served in person and for uncertain parties has passed, and no opposition is filed, the plaintiff shall produce within 8 days, the list of witnesses and after their examination and collection of any other information found necessary and after the lapse of period referred to in Paragraph 1 of article 1107, the case shall be decided. Article 1111 – Delivery of the assets - In execution of the judgment which has appointed the guardian, the assets shall be delivered to the qualified guardians and to any other interested 350 parties, after making the listing of the items and furnishing security and partitioning of properties amongst the interested parties as per their rights. If the assets have already been listed or inventoried in other proceedings, the same will be the basis to effect delivery and partition of the properties. § 1: The security shall be calculated keeping in mind the value of the movables which each interested parties received and to the income which is not appropriated. § 2: The State is not to furnish any security.  Civil Code article 67. Article 1112 – Justification of absence for other purposes - The procedure for justification of absence, regulated in articles 1107 to 1109, is also applicable: a) When the heirs of the absentee do not apply for definitive guardianship and the legatees or any other parties propose to receive the assets to which they have right and the absentee was enjoying or which accrued to the absentee subsequent to his absence; b) If there is a lapse of 20 years from the absence or the absentee has completed 95 years of age without granting definitive guardianship, and the heirs or other interested parties propose to claim succession or delivery of the properties. § Sole Paragraph: The delivery shall be done in accordance with article 1111; but, in the case of clause (b) without furnishing of security.  Civil Code article 67 sole Paragraph and article 72. Article 1113 – Procedure for opening closed will - As an act preparatory to the definitive guardianship or the prayer to claim the succession and delivery of the assets, it is permissible to direct the opening of the closed will left by the absentees. The opening shall be asked by the private depositary of the will or by any person who qualified himself as successor and by Public Ministry. The applicant shall justify his locus standi and the existence of the absence, shall produce the will or shall indicate the place where it is found, and shall indicate the persons who are to be summoned and immediately give the name of the witnesses, not exceeding five. Summons shall be issued to the private depositary of the will when he is not the applicant, to the administrator or provisional guardian of the properties and presumed lawful heirs; and by way of publication the absentee and any other uncertain interested parties. 351 The summoned persons may contest within a period of 10 days and they shall immediately offer the evidence. After the evidence is led the judge shall obtain the information, which is found necessary, and then shall decide the matter. If he grants the prayer, he shall direct that the will shall be opened and registered by the competent public employee. After the will is opened and registered, the will shall be considered as a public.  Civil Code article 66. Article 1114 – End of guardianship if whereabouts are found - As soon as there is reliable news of the whereabouts of the absentee and where he resides, provisional guardianship will be declared, a provisional guardian shall be appointed who otherwise was definitive or any other fit person shall be chosen when there are more than one and notice will be issued to the absentee that his assets are put under guardianship and they will continue as such until he takes adequate steps.  Civil Code article 78, no. 2 and sole Paragraph. Article 1115 – End of guardianship when absentee returns - If the absentee returns and desires to put an end to the guardianship or ask for return of the assets, he shall apply in the proceedings where delivery is recorded, that the guardians or posessors of the assets be notified to, within 10 days, return the assets or deny his identity. If the identity is not denied the delivery of the assets shall be effected immediately and guardianship, if any, will come to an end. If the identity of the applicant is disputed he shall justify within 20 days by way of pleading which those notified, may contest within 8 days. With the pleadings and contestation, evidence will be tendered. After the evidence is led and procedural steps are taken and information is obtained which is found necessary, decision will be passed. When there is a case foreseen in article 80 of the Civil Code, once the delivery of the assets is directed, in the same file liquidation shall be made in accordance with article 806 and following the liability which is referred to in the same article to the extent of the alienated assets.  Civil Code article 78, no. 1. 352 Article 1116 – End of guardianship in other cases - In the case of clauses 3 and 5 of article 78 of the Civil Code, as soon as the guardianship is declared as ended and the certified copy of the same fact is produced and security furnished is declared extinct or only limited to possessors of the assets who are not definitive guardians. If the cessation of guardianship and extinction of the security or extinction of security only, on the ground of lapse of 20 years of absence, the cessation shall be granted independent of any formality, as soon as from the records it is manifest the grounds is true. Article 1117 – Procedure to assert the status of heir - If anyone proposes to establish his/her status as heir or representative of a deceased person and if there is no definite party who may claim adversely, he shall seek the declaration and shall pray that notice be given to Public Ministry & by affixation to all uncertain parties and death certificate of the estate leaver shall be annexed to the same. Any person, who claims to have equal or better right than that of the Applicant, may pray to be declared as heir within 20 days subsequent to the notice affixed in the Court. The Applicant and any other person who claims to be heir may contest the adverse pleading within period of 8 days. The interested parties may also file rejoinder to the same within subsequent 8 days. The provision of Article 1109 and 1110 shall be attracted in this case, wherever they are applicable. § Sole Paragraph: If the application is dismissed on account of the evidence, the Applicant may adduce further evidence or make fresh application. Article 1118 – Partition of inheritance amongst a generality of persons - Where the inheritance is to be partitioned amongst certain generality of persons, whoever is entrusted to partition the same shall indicate the persons who according to him are comprised within such generality and shall apply that any uncertain interested parties may be summoned by way of publication, to prove their capacity as heir within 20 days from the period specified in the public notices. The persons indicated by the executor of the will shall be served with the notice and also the executor may contest the claims which have been put forth. Any claimant may contest the claims 353 of the opponent, and thereafter the steps prescribed in the previous article shall be followed.  Civil Code article 1740, sole Paragraph. CHAPTER XV SPECIAL EXECUTION FOR MAINTENANCE Article 1119 – Execution for maintenance - The installments of the maintenance shall be paid in advance on the first day of each month. If the debtor is already summoned in the execution proceedings and thereafter he fails to satisfy the payment any installments, further steps shall be taken, without need of any fresh service of summons and the execution creditor may apply for the award of the income and for that purpose giving the lease of the properties to the extent necessary. But fresh summons will be necessary if the execution is filed after lapse of 1 year from the date of payment of last installments. Article 1120 – End of execution for provisional maintenance - Retroactive effect of fixation of permanent maintenance - The execution for provisional maintenance shall come to the end at the instance of the defendant, when he satisfies that the plaintiff failed to institute within 15 days from the payment of first installments the suit of which the application for provisional maintenance was preparatory, or that the suit was subsequently was pending for more than 3 months. § Sole Paragraph: The fixation of permanent maintenance shall be deemed as done from the day when provisional maintenance has been fixed. The amount which the decree holder has to receive or to refund shall be distributed in so many months as corresponding to monthly installments of the provisional maintenance. Article 1121 – Procedure to cease or alter maintenance - When there is ground to put an end or to change installments of the maintenance, the debtor or the creditor may formulate the prayer in the proceedings of the execution. The interested parties shall be summoned for a meeting which shall take place within 10 days. If there is an agreement between the parties the same shall be homologated immediately by 354 judgment. If there is no agreement the prayer is to be contested within the period of 5 days failing which it is deemed as admitted. If there is contestation, the steps prescribed in article 785 and following shall be followed. CHAPTER XVI LIQUIDATION OF ASSETS SECTION I WINDING UP AT INSTAN CE OF THE SHAREHOLDERS Article 1122 – Winding up through Court - The liquidation of assets of a society is to be done judicially if the majority of the shareholders who represent 3/4th (three fourths) of the capital do not agree to have liquidation outside the court. However, if the memorandum of the society requires consent of all the shareholders for liquidation outside the court the same stands excluded from the above paragraph. The steps for judicial liquidation are those which are laid down below.  Articles 1122-1157 – Liquidation of assets – winding up. o This is subject matter of Companies Act. Article 1123 – Appointment of liquidators - When the liquidators are to be appointed by the judge any shareholder or creditor or the Public Ministry may apply for the same if he has sought declaration of inexistence of the society. The judge shall appoint the liquidators or liquidator and shall fix time limit for the liquidation, after hearing the shareholders, if found necessary. If he decides to hear the shareholders they shall be summoned by publication for the day fixed. § Sole Paragraph: What is provided in this article applies also to the replacement of the liquidator or liquidators. Article 1124 – Fixing time for liquidation - If the shareholders have appointed liquidators or liquidator without fixing the time to carry out the liquidation, the same period shall be fixed by the court at the instance of any shareholder or creditor, after the hearing the liquidators. § Sole Paragraph: Same procedure shall be followed when the time is required to be extended. 355 Article 1125 – Liquidation process - The liquidators proceed with the liquidation by selling the properties, recovering the credits and paying the debts, in accordance with clause no. 124 of article 1134 of the Commercial Code and respective Paragraphs 1 and 2. The authorization by the society referred to in these Paragraphs is substituted by judicial authorization. Article 1126 – Accounts of liquidators and distribution of balance - After having done total liquidation, the liquidator shall present their accounts following the article 1017. If they do not produce the accounts, any interested party may compile them to give the accounts in accordance with articles 1012 and following. Once the accounts are approved, the judgment shall be passed distributing the balance to the shareholders as per the proportion payable to each of them. Before passing the judgment, the judge may, if finds convenient, prepare accounts in form of a map, one project of partition of the balance and give notice to the shareholders to give their objections as they deemed fit. Article 1127 – Acceptance of partial liquidation - If the liquidators are of the view that the liquidation may not include all the assets, they shall present the accounts of the partial liquidation giving reasons for not proceeding with total liquidation. A meeting of all the interested parties shall be convened to find out whether the liquidation is to be accepted in the state in which it is or it is to be finalized. There being debts to be paid, meeting of the creditors shall be convened. The acceptance of partial liquidation depends upon the agreement of the majority of the members and on the capital and assent of the creditors representing 3/4th (three fourth) part of the liabilities. The shareholders and creditors, who having been personally notified, neither remain present nor appoint representatives, are bound by the deliberations of the majority of parties present. Article 1128 – Partition in case of partial liquidation - If it is decided that the liquidation shall be finalized, the liquidators will finalize the same following article 1126. If partial liquidation is accepted, the accounts submitted by the liquidators shall be examined and 356 checked and if approved, the partition is to be done as agreed. In the absence of agreement, the shareholders shall deliberate on the payment of the liabilities, if there are any. After satisfying the debt or the payment being secured, any shareholder may seek licitation in the assets which have remained. Properties on which there was no bid shall be sold and lastly the partition chart will be prepared which shall be decided by the judge. The provisions of inventory shall be applicable to the licitation, sale of properties, and partition. If the accounts are not approved, whatever is provided in article 1017 shall be observed and after their approval again there shall be meeting of the shareholders and of the creditors thereafter the steps prescribed for the approval shall be followed. § Sole Paragraph: In the case of partial liquidation, the properties shall be delivered, up to the partition, to an administrator appointed by the judge, who shall have functions identical to the head of the family. Article 1129 – Steps when total liquidation is not possible - If the liquidators are not in position to carry out total liquidation, they shall produce the accounts and there after whatever has been provided in the preceding article as to acceptance of partial liquidation shall be followed. Article 1130 – Cases when liquidation through Court is acceptable - The steps set out in the previous articles are applicable not only for winding up of the company, but also to the cases of rescission and annulment of articles of the association and the declaration of non existence of the company. In the event there is a suit pending for the above purposes, the appointment of liquidators shall be processed by appendage to the main proceedings and fixation of the time for the liquidation. Article 1131 – Liquidation out of Court - In the case of liquidation outside the court, if it is necessary to appoint liquidators or fix the period for the same purpose, and the shareholders do not approve the accounts, if the liquidators do not complete the liquidation or at any other time the intervention of the court becomes necessary, the provisions of the previous articles shall apply, and thereafter the liquidation outside the court shall take place. 357 SECTION II LIQUIDATION FOR THE BENEFIT OF THE STATE Article 1132 – Summoning of unknown heirs in case of a vacant inheritance - In the case of vacant inheritance by reason of the heirs not being known, the Public Ministry contests the capacity of those who appeared or because the known heirs had made record of renunciations, after taking necessary steps to secure the preservation of the assets, the heirs shall be summoned, by way of publication, directing them to qualify themselves as heirs within the period of 20 days after end of the period of the publication. If anybody appears to qualify himself, file will be sent to the public ministry to express his views, who may within 8 days, contest the application, if there is a ground for the same. If there are different persons to qualify themselves as heirs, any other contestants may contest the application of others within 8 days subsequent to the period fixed for filing the application for qualification. To the answer given by Public Ministry or any other parties, the interested party may rejoin within 8 days. To the replication there will be triplication within equal period and thereafter steps of the ordinary proceedings or summary proceedings, shall be followed depending upon the valuation. Article 1133 – Liquidation in case of vacant inheritance - The inheritance shall be declared vacant in favour of the State if nobody appears applying for qualification or any application of those who have put appearance, has been rejected. In any of the above cases steps shall be taken for the liquidation of inheritance, by recovery the credits by selling through court the properties and after satisfying the liabilities, the balance shall be allotted to the State. § Sole Paragraph: The public funds and the immoveable assets shall be sold, when the sale proceeds of other assets is not sufficient to satisfy all the liabilities.  Civil Code articles 2006 and 2008 Article 1134 – Procedure for claiming and verification of credits - The creditors shall be notified to put up their claims within the period of 10 days from the date of personal service, if they are known, and at the end of the period of the publication, if they are uncertain. 358 The Public Ministry shall be afforded the examination of the file for the period of 20 days to offer its views and whatever is found necessary on the objections filed. Till the time of examination, any creditor may also claim his credits or object to the claim of others. Those claims which have not been contested are considered as approved. If there is contestation, the respective creditors who have appointed judicial attorney or chosen domicile at the seat of the court shall be notified to reply within the period of 8 days and at the end again the file will be remitted to the Public Ministry for 8 days, to raise objection to the replies as deemed fit, and up to the time of the examination any creditor claimant to give his say on the reply filed by the others. In the subsequent 20 days all the objection which may be decided on the basis of the material which is pleaded and proved shall be decided and thereafter in relation to others, the form of summary proceedings shall be followed, except where any credit is the amount exceeding to 10000$ (ten thousand escudos), it because in such case procedure of ordinary proceedings shall be followed. § 1: The debt cognizance of which is assigned to special tribunal shall be claimed by following proper remedy. § 2: No payment shall be made until the suits or claims of credits are pending. § 3: If the proceeds from the sale of the properties are not sufficient to clear all the debts or if there are creditors with privilege or preference, the distribution shall be done either pro rata or after marshaling the creditors. § 4: The intervention of the Public Ministry shall cease as soon as the debts are acknowledged or held tenable of the amount superior or equivalent to the proceeds of the inheritance. § 5: The provision of this article does not come in the way against the effect of any judgment secured against the inheritance of the deceased or against the guardian appointed to the same. The pending executions shall be appended to the proceedings of liquidation; and also the pending suits shall be appended in the same manner, except where the trial has started. The claims arising from preference resulting from attachment or judicial mortgage shall not be recognized. § 6: Even after end of the period of the claims to be made, any creditor who had not been personally served shall be permitted to put his claim of the credit if the liquidation proceedings are pending. If the liquidation is concluded, the creditor shall have case against the State to the extent of the amount of the balance which has been awarded to the State. 359 SECTION III LIQUIDATION FOR THE BENEFIT OF CREDITORS SUBSECTION I DECLARATION OF INSOLVENCY AT THE INSTANCE OF THE CREDITORS Article 1135 – Definition of state of insolvency - The businessman who is unable to pay his debts is liable to be declared as insolvent. Article 1136 – Reasons for declaring insolvency - The declaration of the insolvency shall be made in following cases: 1) Non-payment of debts; 2) Escape of the businessman or absence from his establishment, without keeping legally the indication who represents him in the administration of the same; 3) Dissipation and diversion of assets or any other disorderly conduct on the part of the businessman which reveals a deliberate design of putting himself of a situation of not being able to satisfy his liabilities. § 1: In limited liability companies, the insolvency may be declared on the ground that assets are not sufficient to satisfy the liabilities. § 2: The insolvency / bankruptcy shall take place also in the cases foreseen in articles 1139, 1249, sole Paragraph of 1258, Paragraph 1 of 1260, 1268 and 1284. Article 1137 – When Insolvency can be claimed for non payment of dues - If non payments take place when the businessman is doing his business, the insolvency may be applied for within 2 years from the date of non payment, irrespective of whether the opponent ceases to do his business or has expired. The insolvency may also be applied for within the same time if the non payments is towards the obligations contracted during his business has occurred within first 6 months from the time the businessman stopped his activities. § Sole Paragraph: When the insolvency is applied for on any other grounds, the limitation prescribed in this article is counted from the time the event occurred giving rise to the insolvency. 360 Article 1138 - Who can declare Insolvency - The court may declare insolvency: 1) On application of the businessman; 2) On the application of any creditor, either with preference or with privilege, which ever may be the nature of the credit; 3) On the application of the Public Ministry, in the case of no. 2 of article 1136; § Sole Paragraph: Following parties are not permitted to apply for the insolvency: Clause 1: The spouse of insolvent; Clause 2: His ascendants or descendents in any degree; Clause 3: His collaterals in direct line and in the first degree. Article 1139 – Limitation for businessman to apply for declaration of insolvency - The application by the very businessman for declaration of the insolvency is to be made within 10 days from the date of non payment, failing which he is presumed to be guilty. Article 1140 – Requisites for a businessman’s application to be declared insolvent - In order to have insolvency be declared on application of the businessman he shall make the application in writing with indication of all the particulars as to his identity, capacity of businessman with the necessary evidence along with inventory and balance sheet of active and passive, and the list of the creditors and the respective credits. Article 1141 – Creditor’s application - The creditor who desires to get declaration of insolvency shall formulate the prayer, giving the grounds of the existence of the credits, as well as of the necessity, if really exists, to make such declaration, without hearing the opposite side, and immediately listing the evidence he proposes to adduce. Article 1142 – Hearing of respondent - The court may grant the declaration of the insolvency either without hearing the opposite side or after issuing the summons to the opposite side to give the reply within 48 hours. In the later case the debtor may along with his reply produce the documents and witnesses, provided that he undertakes to produce them without service of notice, at the time of the hearing. The debtor may produce at that time also his own books of account. 361 If the debtor does not reply, the court shall decide the matter ex-parte. § Sole Paragraph: The service of summons shall be made in the main establishment even though he is not found at the same place.  See also Article 82 of this Code. Article 1143 – Time for Inquiry - The inquiry shall be held within the 8 days next to the receipt of the petition or time limit given to the adversary, in the case notice is issued to the adversary. § Sole Paragraph: For the purposes of these articles, the application for declaration of insolvency shall always be considered of urgent nature and shall have preference over any other work. Article 1144 – Hearing of arguments and Judgment - At the hearing, which shall take place even in the case of article 1140 after evidence is led, shall hear the appointed attorneys may formulate also questionnaire on the facts and give answer to all the points of questionnaire. In the event it is not possible to pronounce immediately the judgment it shall be done within 5 days and service of the notice to the applicants and adversary within 48 hours. If the court declares the insolvency in final judgment shall fix time limit between 30 to 90 days, to the creditors to present their claims. Such final judgment shall be immediately enforced and notified to the Public Ministry and registered in the land registration office at the instance of the later and published by extract in the official gazette and in one of the newspapers of the locality, if there is, and by notices fixed at the door of the domicile of the adversary at the seat of the establishment or branch of the insolvent and at the door of the court and all the steps shall be complied within 3 days and information sent to the criminal register, as soon as administrator of the insolvency furnishes necessary particulars. Article 1145 – Withdrawal of application - Before delivering the judgment, the applicant may withdraw the prayer except where facts have been pleaded which disclose existence of guilt or fraud.  See also Article 298 of this Code. Article 1146 – Who can appeal - From the judgment, appeal may be filed by the businessman declared as a insolvent, or the applicant, or any creditor who has locus standi for the purpose and it is for the judge to decide summarily the question of locus standi, without prejudice the 362 subsequent steps for verification of the liabilities; and if it is found that the insolvency was declared on account escape or absence of the businessman, appeal may be filed also by any of the parties mentioned in sole Paragraphs of article 1138. § Sole Paragraph: The final judgment which refuses to declare insolvency shall be forwarded in the same file, without keeping on record any certified copy. Article 1147 – Who can file objections to the declaration - Once the judgment of declaration of insolvency is delivered, the insolvent who has not expressly acknowledged such existence or who has not claimed to exist the case for the same to the court may, within 8 days immediately next to the publication of the final judgment in the official gazette, may file objection. The same remedy is available to the spouse, ascendant and descendent in case the insolvency is declared on account of escape or absence from the establishment, to the spouse, heir, legate or representative of the businessman declared to be in insolvent after the death, or who has expired before the time limit indicated in the first part of these articles. In such cases the limitation to file the objection is of 30 days, from the time of publication of the final judgment. Article 1148 – Grounds for objections - The objections may be filed only on the grounds mentioned below: