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

Where for any of the executions the procedure to be followed is different from that employed for others; § 1: Where one or some of the executions attract summary or very summary procedure and others ordinary procedure, in such case the ordinary procedure shall be followed for all. When there is a cumulation of the summary or very summary executions, the procedure to be adopted shall be decided by the totality of the reliefs; § 2: Where all the executions are based on judgments the execution shall be proceeded with in the file of the larger value, to which other files shall be appended; Where there are other documents for execution they must be incorporated in the file as per the earlier clause. But if any of them is of greater value, the files in which the judgements have been passed shall be appended to the file of larger value. § 3: When an execution has not been closed, the executor may apply for execution of another document provided that there are no obstacles as provided in clauses 1 to 3 and to the new execution corresponds, on the point of the value the form of procedure employed to the pending execution.  Article 58 and 813 (2) of this Code. Article 54 - Executablity of certificates extracted from inventories - Certified copies issued from inventories shall be executable, provided that they contain: (a) Identification of the Inventory by naming the deceased and the applicant for inventory; (b) Indication that the respective interested party had the position of heir or legatee; (c) The text of the chart of partition to the extent it relates to the same interested party, with the declaration that the partition has been homologated by the judgment of the court; (d) The description of the properties which were described from amongst those which were allotted to the applicant. § 1: In the event the order of partition by the lower court had been modiﬁed in appeal and the modiﬁcation had effect on the share of the interested party, the certiﬁed copy shall reproduce the 20 ﬁnal decision to the extent it relates to the same share. § 2: Where the certiﬁed copy was meant to prove the existence of a credit, it shall only contain, besides the requirement of clause (a), that which is found in respect of the approval or veriﬁcation of the credit and manner of its payment.  Vide Article 192 of Code of Property Registration (“Codigo do Registo Predial”) CHAPTER II PARTIES Article 55 - Legal standing (locus standi) of decree holder and judgement debtor - Execution is to be instituted by the person who appears in the document as judgment Creditor and it should be instituted against person who in the same document has the position of the judgment debtor, except as provided in subsequent two articles.  Article 813 (1) and sole paragraph, 815 of sole paragraph of this Code.  As per our Indian usage in Civil Procedure, the applicant for execution has been referred to in this translation as ‘Decree Holder’ (the successful creditor who holds the judgement) and the opponent as ‘Judgement Debtor’ even where the decree is not for money. Article 56 - Habilitation of judgement debtor and decree holder - In the event there is succession in the right or obligation, in the application for execution, the heirs of the party shall be brought on record. The person or persons summoned may contest the application, and in the rest article 378 shall be followed. If the application to bring on record the heirs is contested, all the limitation periods and steps of the execution shall remain suspended, till the application to bring on record the heirs is decided. § 1: The execution based on mortgage shall always be pursued against the possessor of the mortgaged assets, whoever he may be and without the need to bring heirs on record. § 2: The execution based on judgment shall not be instituted against the transferee, if the act was subject to the registration and the transmission was registered before the registration of the action.  Article 271 and sole paragraph 2 of this Code. Article 57 - Executability of Judgement against third parties - If the judgment has the effect of res judicata not only against the debtor but also against another person, the execution may be filed against the said person independently of the bringing of heirs on record.  Articles 326, 346, 354 etc, of this Code. 21 Article 58 - Joint application for execution - Several creditors may join together against the same debtor when the purpose of the execution is to demand payment of specific amount and the exceptions envisaged in no. 1 and 3 of Article 53 do not obtain. In the event any of the amounts is not ascertained, the joinder may take place only after liquidation of the claim. § Sole Paragraph: What is provided in Paragraph 2 of Article 53 is applicable in this case.  Article 813 (2) of this Code. Article 59 - Legal standing of Public Ministry as executor - The Public Ministry has legal standing to seek execution for payment of fines in any proceedings as well as execution for costs or any amounts due to the State, coffers, Bar Council or Body of legal advisors.  Article 6 of Decree no. 29.950 Article 60 - Compulsory representation through advocate - The parties have to compulsorily appoint an advocate when execution exceeds the pecuniary jurisdiction of the High Court; and in cases where value is less than that but it exceeds the pecuniary jurisdiction of the Civil Court when there is an objection to the execution or there is marshalling of the creditors.  Article 33 of this Code; Article 1 of Decree no. 35:978. 1 Article 61 - Powers of privileged or preferred creditor - The creditor who has privilege or preference over the attached properties, even though based on attachment or judicial hypothecation may prosecute the execution when the executor is not diligent in prosecuting the regular steps of the proceedings.  Articles 676 and 847 of this Code. 22 BOOK II JURISDICTION AND PREVENTION OF BIAS (Articles 62 – 137) 23 BOOK II JURISDICTION AND PREVENTION OF BIAS CHAPTER I GENERAL PROVISIONS AS TO JURISDICTION Article 62 - International Jurisdiction and internal jurisdiction – requisite conditions - The Portuguese courts have international jurisdiction when any of the circumstances mentioned in Article 65 is satisfied. In internal matters, jurisdictional power allotted to different courts, as a rule, as per the subject matter and the value of the action, the judicial hierarchy, and the territory. In exceptional cases, the type of respondent is also taken into consideration.  Portuguese Civil Procedure distinguishes doctrinally between the concepts of Jurisdiction and Competence. Lack of Jurisdiction means, that the matter cannot be filed in any Court in the land. Competence refers to the allotment of jurisdictional powers amongst different Courts, all of which otherwise have jurisdiction. Unfortunately, this theoretical distinction is not clearly maintained in the Code itself, jurisdiction being covered by Article 65 as international jurisdiction and competence under Article 66 onwards (chapter 3 under the title internal competence). In this translation also, strict adherence to the distinction has not been possible.  Articles 62 - 121 – Jurisdiction - Corresponding provisions in C.P.C. 1908: - o Jurisdiction of the Courts and res judicata - Ss. 9-21A Article 63 - Law regulating jurisdiction - Competence is fixed with reference to the time when the action is instituted. The factual modifications which occur subsequent to the said time are irrelevant; so also changes in law are not relevant, except where the Court in which the case is instituted is extinguished or the same court ceases to have jurisdiction as to the subject-matter and the hierarchy.  Article 267 of this Code. Article 64 - Change of forum prohibited - No matter may be transferred from the competent court to the other, except in cases specially foreseen in the law. 24 CHAPTER II INTERNATIONAL JURISDICTION Article 65 - Requisites for international jurisdiction - The circumstances on which the international jurisdiction of the Portuguese courts depends are as follows: (a) The action is to be instituted in Portugal following the rules of territorial competence provided by the Portuguese law; (b) The act or fact from which the action emerges has been done within the Portuguese territory; (c) It is intended to protect any Portuguese citizen, on the principle of reciprocity; (d) The right cannot be rendered effective unless the action is instituted in Portuguese courts. § 1: When as per the Portuguese law for the purpose of the action, the court of the domicile of the defendant is competent, the Portuguese courts may exercise their jurisdiction provided the defendant resides in Portugal for more than 6 months or he is found accidentally in the Portuguese territory, provided that, in the latter case, one of the parties to the obligation is a Portuguese subject. § 2: Foreign collective bodies are deemed to be domiciled in Portugal provided that they have a branch, agency, unit or delegation in Portuguese territory.  Article 65 – International jurisdiction  Subject of Conflict of Laws/ Private International Laws CHAPTER III INTERNAL COMPETENCE SECTION I JURISDICTION AS TO SUBJECT-MATTER Article 66 - Jurisdiction of ordinary courts - The cases, cognizance of which has not been assigned, by the law to any special jurisdiction, are of the competence of the regular court.  Article 116 of the Portuguese Constitution. Article 67 - Court of judicial division is the ordinary court - The regular court is the civil court. Plenary civil jurisdiction in the first instance, belongs to the court of the judicial division. 25  Note : Judicial Divisions or “Comarcas” under the erstwhile High Court of Goa were as follows:- Judicial Division Head Quarters Territorial Area Ilhas of Goa Panjim or Nova Goa Island of Tiswadi or Goa and the adjoining islands excepting the parishes of Sant Estevao and Naroa, Reis Magos, Nerul, Pilerne, Penha de Franca and Salvador do Mundo, and Ponda Taluka except village Orgao. Bardez Mapusa Bardez Taluka excepting villages of Revora, Assonora, Tivim, Reis Magos, Nerul, Pilerne, Penha de Franca, Salvador do Mundo and Pernem, Taluka excepting villages of Alorna and Ibrampur. Salcete Margao Salcete Taluka except the parishes of Paroda, Assolna, Cuncolim and Velim. Bicholim Bicholim Sanquelim Taluka, villages of Alorna and Ibrampur, of Pernem Taluka, village Orgao of Ponda Taluka, parishes of Sant Estevao and Naroa of Ilhas Taluka and villages of Revora. Assnora, Tivim of Bardez Taluka. Quepem Quepem Quepem, Sanguem, Canacona Taluka and the parishes of Paroda, Assolna, Cuncolim and Velim, of Salcete Taluka and the island of Angediva. Daman Daman Full territory of Daman, Pragana of Nagar – Aveli and the island, fort and city of Diu with the villages of Gogola and Simbor. Macau City of Macau Territory of Macau. Timor City of Dili Territory of Timor. SECTION II PECUNIARY JURISDICTION Article 68 - Pecuniary jurisdiction of subordinate courts - The subordinate courts take cognizance of cases which the law assigns to their jurisdiction up to the limit of the value expressly designated.  Decree No. 35.915 dated 24/10/1946 ministerial legislative diploma no.4 dated 08/05/1952. Article 69 - Pecuniary jurisdiction of Court of judicial division - The court of judicial division takes cognizance of all the cases irrespective of the valuation when there are no inferior courts and of the causes which exceed the value fixed, whenever there may be.  Judicial Statute Article 58 26 SECTION III COMPETENCE WITH REFERENCE TO THE HIERARCHY (SUBORDINATION OF COURTS) Article 70 - Appellate and hierarchical court - The courts of judicial division take cognizance of the appeals arising from lower courts, from notaries, from Registrars and of others which by law are to be filed before them; they decide the actions for losses and damages instituted against the courts, and officers of the Public Ministry and against the judicial officers of the same judicial division for acts done in the exercise of their functions; and they resolve conflicts of competence arising between the judicial authorities of the division.  Judicial Statute Article 58 (4) and (7). Article 71 - Jurisdiction of High Court - The High Court takes cognizance of the appeals and of the matters which, by law, are within their competence, and in particular :- (a) Of appeals from the courts of judicial division; (b) Actions for compensation and damages against the judges and respective ofﬁcers of the Public Ministry, in connection with the exercise of their functions (c) From conflicts of competence between the courts of different judicial division of the same district; (d) Revision of the judgments passed by foreign courts or foreign arbitrators.  Judicial Statute article 56. Articles 1089 and subsequent of this Code, Articles 115 and subsequent of this Code, Articles 1100 and subsequent of this Code. Article 72 - Jurisdiction of the Supreme Court - The Supreme Court of Judicature takes cognizance of the appeals and the matters by which law fall within its competence, and in particular : a) Appeals from the courts of judicial division and from High Court; (b) Actions for damages against the judges of the High Court, and of the Supreme Court and against the officers of the Public Ministry attached to any of those courts, in connection with the exercise of their functions. 27 (c) Conflicts of competence between the High Courts and between courts of different judicial districts.  Judicial Statute Article 53. Article 1089 and subsequent of this Code, Articles 115 and subsequent of this Code. SECTION IV TERRITORIAL JURISDICTION Article 73 - Local jurisdiction for immovables ( “Forum rei sitae”) - An action for enforcement of property rights over immovables shall be instituted in the court where the properties are situated. In the same court, actions may be instituted for possession, for delivery of judicial possession, sundry actions in the nature of arbitrament, actions for eviction, for pre-emption in respect of immovables, actions for reinforcement, reduction and redemption of mortgages. But the actions for reinforcement, reduction and redemption of mortgage over the ships, automobiles and aircrafts shall be instituted where the respective registration has been done. If the hypothecation includes moveables registered in different divisions, the plaintiff may select any of them. § Sole Paragraph: If the action has, as its subject-matter, several assets, or moveables and immoveables, situated in different divisions, the action may be ﬁled in the division where the immoveable properties of major value are located, and for that purpose, value at the “matriz” (Land Revenue Register) is to be considered; where the property is comprised of more than one division, the action may be ﬁled in any of the divisions.  Articles 446, 970, 999, 1032, 1043 and 1051. Article 74 - Local jurisdiction for enforcement of contracts - If the action is meant to seek enforcement of obligations, it shall be ﬁled in the court of the place in which, by law or written agreement, the concerned obligation was to be fulﬁlled. However, if the action originates from an illicit act, the court where the illicit act was done shall have jurisdiction. 28 Article 75 - Divorce and separation - The court of domicile or of the residence of the plaintiff is competent to try suits for divorce and separation of persons and assets  Decree dated 3-11-1910, articles 4 and 43. Article 76 - Suit for fees - For the suit for recovery of fees of judicial attorneys or technicians and for recovery of the money advanced to the client, the court where the service was rendered shall have jurisdiction and this suit shall be appended to the suit in respect of which the service was rendered. Article 77 - Inventory and Habilitation of heirs - The court of the opening of inheritance will have competence: 1) For the inventory proceeding; 2) For an application to bring a person on record as heir or representative of another. § 1: The inheritance of an individual who dies outside the country without having domicile therein nor immoveables, inheritance shall be considered to have opened where the major part of the moveables exist. § 2: When the inheritance opens in a foreign country, the application for bringing on record the heirs shall be presented in the place of the domicile of the applicant who is to be brought on record as an heir. § 3: The court where the inventory on the death of one of the spouses has taken place is competent for the inventory in case of inventory on the death of other spouse, except where the marriage was contracted under the regime of absolute separation of assets. When there was an inventory on the death of two or more spouses of the deceased, the competence shall be determined by the last of such inventories.  Articles 117, 1431, 1369, 2009 of Civil Code. Article 78 - Regulation and sharing of major ship repairs - The court of the port where the delivery of the goods of a ship which suffered a gross damage was to take place is competent to regulate and apportion the damage.  Commercial Code Articles 635 Para 1 and 650. 29 Article 79 - Losses and damages for collision of ships - The suit for losses and damages on account of collision of the ships may be filed in the court of the place of the accident, or at the court of domicile of the owner of the ship which has caused collision, or in the court of the place pertaining to or in which the ship is found, or in the place of the port where the ship which is hit, first enters.  Commercial Code Article 675. Article 80 - Salaries for salvaging or assistance to ships - The salaries due for salvaging or rendering assistance to the ships may be demanded in the court of the place where the fact occurred, or in the place of domicile of the owner of the objects salvaged, or in the place pertaining to or where the salvaged ship is found.  Commercial Code Article 691. Article 81 - Extinguishment of privileges over ships – An action to get the ship freed from any privileges, acquired with or without consideration, shall be filed in the court where the ship was found anchored at the time of the acquisition.  Commercial Code Articles 578 and 579. Article 82 - Declaration of Bankruptcy - For a declaration of bankruptcy, the court of the place of the main establishment shall have jurisdiction, and in the absence of such establishment, that of the place of domicile or of the head office of the delinquent shall be competent. The main establishment must be considered to be the place of major commercial activity of the delinquent. § Sole Paragraph: What is said in this article is applicable to a foreign trader or society, having in Portugal any establishment, branch or representation. But the Portuguese court can only declare the bankruptcy which is a consequence of obligations contracted in Portugal and which were to be fulfilled in this territory; and also the liquidation is restricted to the assets existing in Portuguese territory.  Article 1136 of this Code. Article 83 - Preventive Injunctions, Injunctions to maintain status and anticipatory steps - In respect of preventive and conservatory proceedings, and procedural steps prior to the institution of the action, the following shall be observed: 30 (a) The sealing, listing of the objects and other procedural steps of preventive nature in relation to the objects likely to be diverted shall be applied for in the court where the objects are found, and if there are goods in various judicial divisions, then in any of them; (b) For the purposes of prevention of a new construction, the court of the place of such construction shall have jurisdiction; (c) The anticipated collection of evidence may be applied for to the court where the evidence has to be taken; (d) For the purpose of other action for prevention and conservation, the competent court will be the court where the action is to be filed. § Sole Paragraph: The proceedings of the acts and steps referred to in this article shall be appended to the respective action for which purpose the same shall be transferred whenever becomes necessary to the court where the action is filed.  Articles 393, 400, 403, 405, 409, 420, 429, 525, 1113, 1467 of this Code. Article 84 - Sundry notices - Sundry notices shall be always applied for in the court in whose jurisdiction person to whom notice is to be given resides.  Articles 257 and 261 of this code. Article 85 - General rule for territorial jurisdiction – place of residence of the respondent - In all other cases not foreseen in the preceding articles or in special provisions, the jurisdiction lies with the court of the domicile of the respondent. § 1: If the respondent does not have fixed residence, he shall be proceeded against at the place where he is found. If he has more than one residence, in which he lives alternatively, and if he has not chosen one of them as his domicile, he shall be sued at the place in which he is found; if he is not found in any of them, he may be proceeded against at any of the above places at the choice of the petitioner. § 2: Where the respondent is uncertain or if he is absent at an unknown place, the action may be filed in the court of domicile of the petitioner. But the curatorship, provisional or permanent, of the assets of the absentee may be filed in the court of last domicile which the absentee had in Portugal. § 3: Where the respondent has domicile and residence in a foreign country, the action may be filed in the court where he is found; if he is not found in Portuguese territory, the action may be 31 filed in the court of domicile of the petitioner; when such domicile is in a foreign country, the court of the judicial division of the capital city of the overseas province shall have jurisdiction for the cause. § 4: Where the respondent is the State, the court of domicile of the respondent shall be substituted by the court of domicile of the petitioner. Where the respondent is any other collective body, action may be filed in the court of the location of the head office or at the location of the branch, agency, office or delegation, depending on whether the action is against the former or the latter. But an action against foreign collective persons which have an establishment, agency, branch or delegation in Portugal may be filed in the court of the place of the said subordinate establishment, agency, branch or delegation, even if service is sought against the head office.  Civil Code articles 7, 41, 43, 45 and 1109 of the code. Article 86 - More than one respondent - Where there is more than one respondent in the same action, they shall be proceeded against in the court of the domicile of the majority of the respondents. Where the number in different domiciles is the same, the petitioner may choose any of such domicile. § Sole Paragraph: The provision of the body of this article will not apply when there are multiple reliefs dependent on one another. In such case, the jurisdiction shall be with the court of the domicile of the respondent against whom the main reliefs is sought and on which other reliefs are dependent.  Article 29 of this Code. Article 87 - Appellate jurisdiction - Appeals are to be filed to the court which is hierarchically superior to the court from which appeal is filed. Article 88 - Suits in which the civil judge, his wife or descendant or ascendant is party - For the suits in which the party is the judge, his wife, or ascendant or descendant by consanguinity, and the suit was to be filed in the court where the same judge is a party, the court of the nearest judicial division shall be competent, which means the judicial division of which the seat lies at the shortest distance from the seat of the other division. § 1: If the suit is filed in the judicial division wherein the inhibited judge is posted or he is posted there when the suit was already pending, the suit shall be transferred to the nearest judicial 32 division by initiative of the judge or on application of the parties. The transfer may be applied at any stage of the suit till the judgment. § 2: The judge hearing the suit may direct and do in the judicial division of the judge who suffers from the impediment all the steps necessary for the prosecution of the suit, as if he is the judge of the said judicial division. § 3: Whatever said above does not apply when in the judicial division there is more than one judge.  Article 122 of this Code. Article 89 - Suits in which the lower court judge, his wife, descendant or ascendant are party - Where the judge of a lower court, his wife or ascendant or descendant by consanguinity is a party, the suit may be filed in the court of the respective judicial division or shall be transferred in accordance with paragraph 1 of the previous article, where the suits as per the normal rule of jurisdiction were to be entertained in the division where the judge of the lower court is posted. SECTION V SPECIAL PROVISIONS AS TO EXECUTIONS Article 90 - Jurisdiction for execution based on judgment - For the purposes of execution based on judgment passed by the Portuguese Courts, the court of the first instance which decided the case has jurisdiction for the execution application. The execution is processed in the same file of the suit or by way of certified copy of the decree if the main file is pending before the Appellate Court. Article 91 - Jurisdiction for execution of judgement pronounced by Superior courts - Where the suit is decided by the High Court or by the Supreme Court, the execution shall always be processed in the court of first instance of the domicile of the judgment debtor, save as provided in article 88. The execution shall proceed in the same original file or its copy which for this purpose shall be returned to the lower court. 33 Article 92 - Execution for costs, fines and compensation - Executions for costs, fines, and damages awarded in any matter shall be filed and further steps shall be processed in the same file. However, if an appeal was filed from any of the matters, then a certified copy of the judgment or order is to be annexed to the file. Article 93 - Execution for costs, fine and compensation imposed by superior courts - When costs, ﬁne or compensation have been awarded, by order passed by the High Court or the Supreme Court, the execution shall be processed on the basis the certified copy of the judgment and shall be taken up by the court of first instance, where the case had been filed except if the judgment debtor is employee of the High Court or the Supreme Court because in that case, the execution shall always be taken up by the court of judicial division to which the employee belonged. Article 94 – Jurisdiction for execution founded on foreign Judgment or on document other than a judgment - Where there is an execution of the judgment of a foreign court, or it is founded on a document other than a judgment, the following shall have jurisdiction: (a) The court of domicile of the Judgment debtor, where the execution is for payment of a speciﬁed amount, save where there is an execution for recovery of an amount secured by mortgage, in which case, the court of location of the mortgaged assets shall have jurisdiction; (b) The court of the place where the thing is found, in the event the execution is for the delivery of a specific thing. (c) The court of the place where the act was to be performed if the execution is meant for performance of an act. § 1: Where the debtor does not have domicile nor residence in Portugal, but he is having properties, the court competent for the recovery of the speciﬁed amount shall be of the place where majority of the properties are located. § 2: Where the thing which had to be delivered no longer exist, then the rule of jurisdiction for execution proceedings for the delivery of the specific thing will be the same as for execution for payment of a speciﬁc amount. § 3: The execution founded in a foreign judgment, after revision and conﬁrmation, shall be processed either in the ﬁle of revision or on the certiﬁed copy of the judgment which for this purpose shall be sent to the court of first instance having jurisdiction. 34 Article 95 – Jurisdiction of Subordinate Judges - If the execution is based on a document other than a judgment and it is necessary to start with ascertainment of the amount, subordinate judges shall have jurisdiction for the execution when the prayer does not exceed 5000$ (five thousand escudos). CHAPTER IV EXTENSION AND CONSEQUENTIAL JURISDICTION Article 96 – Extension of jurisdiction : incidental questions raised by the respondent - The court having jurisdiction in accordance with the preceding provisions, is also competent to take cognizance of all the incidents arising in the course of the proceedings, and of all the questions raised by the defendant in defence. The decision on those questions and incidents does not constitute res judicata beyond the respective proceedings, except: (a) Where one of the party apply for judgment with such an extent and the court is competent to decide such question within its jurisdiction and hierarchy; (b) Where the cognizance of the question or of the incident implies cognizance of the object of the suit. Article 97 – Incidental questions of Criminal or Administrative nature – Where the cognizance of the object of an action depends upon the existence or inexistence of a criminal offence or appreciation of the validity and content of an administrative act, the judge may stay the decision until the criminal court or administrative tribunal decides the matter. § Sole Paragraph: Such suspension will be of no effect if the penal action or administrative action is not taken within one month, or if the respective file is pending due to the negligence of the parties during the same period. In such a case, the judge shall decide the prejudicial question, but his decision shall not have effect outside the proceedings in which it is passed. Article 98 – Jurisdiction to decide questions raised in counter-claim - The court dealing with an action is competent to decide questions raised by way of counter -claim, provided it has jurisdiction as to subject matter and hierarchy, even though it may not have the jurisdiction with 35 reference to the value or territory. If it has no such jurisdiction, the counter-claim shall be of no effect.  Articles 279 and 506 of this Code. Article 99 – Choice of Court by agreement - A private agreement depriving a Court of its jurisdiction when it has jurisdiction as per article 65, is void, except where parties to the agreement are foreigners and the obligation was to be performed in the foreign territory and was not referring to the assets situated in Portuguese territory. Article 100 – Jurisdiction by agreement : when valid - The rules of jurisdiction for subject- matter and hierarchy cannot be altered by the will of parties, but it is permissible for parties to modify by express agreement the norms relating to jurisdiction in respect of value and territory. The agreement has to satisfy the requirements as to form of contract, source of obligation, provided that it is written and it must indicate the question or questions to which it refers and the court which shall have competence. The jurisdiction founded on such a stipulation is as much obligatory as one derived from the law. § Sole Paragraph: The indication of the questions covered by the agreement may be done by specifying the particular juridical act or fact which gives rise to such questions. CHAPTER V VIOLATIONS OF JURISDICTION SECTION I ABSOLUTE LACK OF JURISDICTION Article 101 - Absolute Lack of Jurisdiction – Violation of norms in the matter of international jurisdiction and of the rules of jurisdiction as to subject and hierarchy gives rise to absolute incompetence of the Court.  Articles 65, 66, 67, 70, 72 of this Code. Article 102 – Objections as to jurisdiction – Suo moto cognizance - Absolute incompetence may be raised by the parties and must be, suo moto, raised by the court at any stage of the 36 proceedings so long as on the merits of the case there is no judgment which has become res judicata. § Sole Paragraph: The case of a matter coming under the jurisdiction of a special tribunal and which has been ﬁled before the court of general jurisdiction (civil court), stands excluded. In such case, the lack of jurisdiction may be argued and raised, ex-officio, only till the time of passing of the curative order.  Article 514 of this code.  Curative Order (“despacho saneador” = clearance order) was a preliminary order clearing the matter for further hearing after scrutinizing all preliminary aspects like jurisdiction, maintainability, limitation and technical requirements of procedure. Article 103 – Stage for objecting to jurisdiction - If the objection to jurisdiction was raised during the stage of the pleadings, immediate cognizance thereof may be taken, or the same may be reserved till the time of passing of the Curative order. If it was raised subsequent to such an order, cognizance of the same should be taken immediately. It is open to reserve the point of absolute lack of jurisdiction till the ﬁnal judgment, only where the decision on the same is totally dependent on the trial and arguments in the action.  Article 514 of this Code. Article 104 – Decision on jurisdiction in the Curative Order – its binding force - If the point of absolute lack of jurisdiction was not argued before passing the Curative order, the judge shall ascertain that he has jurisdiction to take cognizance of the case in the question of nationality, of subject-matter and of hierarchy. But the order will operate as ‘res judicata’ only to the extent of the specific questions concretely decided on the question of jurisdiction.  Art. 514 no. 1 of this Code. Article 105 – Effect of total lack of jurisdiction - If the court is satisfied that there is absolute lack of jurisdiction, the proceedings shall be of no effect. However, if the lack of jurisdiction was decided after the conclusion of the pleadings, the pleadings can be made use of if the parties agree. In such case, the Petitioner shall apply that the matter be sent before to the court where new action has to proceed. 37 Article 106 – Binding effect of the decision on absolute lack of jurisdiction - The decision of a court that it has absolutely no jurisdiction, though it has become ﬁnal, shall not be binding outside the proceedings in which it was pronounced. However, the petitioner may invite a judgment of the superior court which ﬁxes, with ﬁnality, the jurisdiction of the court for the cause, in terms of the following article.  Article 672 of this code. Article 107 – Final determination as to Jurisdiction of Court - Where a court decides itself to be incompetent to take cognizance of a matter, by reason of subject matter or hierarchy-wise, and the decision is conﬁrmed by the High Court, the Petitioner may apply, in the appeal ﬁled to the Supreme Court, that it may be decided as to which court is competent. In such case, Public Ministry shall always be heard. If the High Court has held that the civil court is incompetent because the matter has to be heard by the administrative side, the appeal has to be addressed to the court deciding conflicts between judicial and administrative authorities. If the same action is pending, for the purpose of ﬁxation of competent court, the regime of conflicts shall be applicable. SECTION II RELATIVE INCOMPETENCE Article 108 – Technical lack of Jurisdiction - Irregularity in Jurisdiction - The violation of the provisions of Pecuniary jurisdiction, and of the provisions contained in articles 73 to 89, and the like, result the relative incompetence of the court (technical lack or irregularity of jurisdiction). Article 109 – Procedure for raising technical lack of jurisdiction – Irregularity or technical lack of jurisdiction may be raised only by the respondent, within the period of limitation starting from the service of notice. Once the exception is raised, the judge shall direct notice to other party to reply. For the purposes of this article, the provisions contained in articles 307, 308, and 309 are applicable. 38 § Sole Paragraph: In the proceedings where there is no room for ﬁrst summons, the period shall run from the ﬁrst notice on the respondent. Article 110 – Mere raising of objection to jurisdiction will not suspend proceedings - Objection as to jurisdiction does not suspend the regular course of the proceedings. But where the filing of pleadings ends before the decision on the objection, all further steps will remain suspended till the question of jurisdiction is ﬁnally decided. Article 111 – Procedure where objection is not contested or contested - Where the petitioner does not reply or accepts the objection, the plea of jurisdiction shall immediately stand allowed, and the ﬁle will be transferred to the court designated by the respondent as competent. Where the petitioner contests, evidence shall be produced in the following ten days and it shall be decided which court has jurisdiction. After the decision becomes res judicata, the question of jurisdiction stands ﬁnally decided. § 1: Neither proof by experts, nor any step through letter of request, is admissible. § 2: If the objection is held maintainable, the ﬁle shall be transferred to the competent court. Article 112 – In case there are many respondents - In case there is more than one respondent, the judgment shall produce effect in relation to all of them. But when the objection is raised by only one of them, others can also object, for which they will be notiﬁed on the same terms as the petitioner; in this case, it is necessary that none of the notiﬁed parties contest, in order to attract what is contained in the ﬁrst part of the preceding article. Article 113 – Lack of jurisdiction based on an attempt to avoid forum - The lack of jurisdiction may be founded on the fact that a party was joined who is a stranger to the cause to drag the actual defendant from the court which is territorially competent, In this case, the judgment which adjudges the court incompetent shall always penalize such a petitioner with ﬁne and damages as a litigant in bad faith. Article 114 – Time limit for objection to jurisdiction in Appellate Court - The time for objection to jurisdiction of a court of appeal shall run from the ﬁrst notice the court issued or the 39 ﬁrst intervention in the proceedings. The provisions of the previous articles are applicable to this case, with necessary adaptations. SECTION III CONFLICTS OF JURISDICTION AND COMPETENCE Article 115 – Distinction between conflict of jurisdiction and conflict of competence - There is a conﬂict of jurisdiction when two or more authorities, belonging to the different functions of the State, or two or more courts, of different jurisdictions, claim or decline the power to take cognizance of the subject. In the ﬁrst case, the conﬂict is positive, and in the latter, it is negative. There is a conﬂict, positive or negative, of competence when two or more courts of same kind consider themselves competent or incompetent to take cognizance of the same question. § Sole Paragraph: There is no such conﬂict, as long as the decisions passed with regard to competence are subject to appeal. Article 116 – Court of lowest grade to try - The conﬂicts between two courts of civil jurisdiction shall be decided, by the court of the lowest grade which has jurisdiction over all the authorities in conﬂict, in the manner as provided in the following articles.  Article 70, 71(c), 72 (c). Article 117 - Who may seek a decision on jurisdiction - The decision on conﬂict may be solicited by any of the parties or by Public Ministry by way of an application in which the grounds are speciﬁed. § Sole Paragraph: With the application, the name of the witnesses is to be indicated when the party wants to make use of such form of proof. Article 118 – Suspension in limine or notice to reply - If a judge or the member of judicial bench who prepares the judgement is of the opinion that there is no conﬂict, he shall immediately reject the application. In other case, he shall notify the authorities in conﬂict to suspend the progress of the respective proceedings, when the conﬂict is positive, for them to respond within the prescribed period. 40 § Sole Paragraph: The notice shall be sent by post by a registered letter. The period to ﬁle the reply shall commence three days after the letter has been dispatched, except where the notice has to be sent overseas, because in that case, the period will be extended depending upon the usual time for postal communications. Article 119 – Reply - The authorities in conﬂict shall respond by ofﬁcial letter, to be sent by registered post, and may attach any certiﬁed copies of the proceedings. § Sole Paragraph: The reply delivered to the respective post ofﬁce within the prescribed period, shall be considered to be ﬁled on time. Article 120 – Production of evidence and subsequent stages - After having received the reply or after being satisﬁed that the same cannot be accepted, the examination of the witnesses will start if their names have been tendered, the ﬁle will be forwarded for opinion of the Public Ministry and for the examination by the advocates appointed by the parties, and lastly the decision will be passed. § Sole Paragraph: In the event the conﬂict is to be resolved by the High Court or by the Supreme court, the proof by means of witness shall be carried out, by letter of request, at the judicial division where the fact which is required to be investigated has taken place; and after the conclusion of the ﬁle sent for opinion and examination, the conﬂict shall be decided as an appeal from order. Article 121 – Applicability to other conflicts to be resolved by the High Court or Supreme Court - What is provided in article 117 and 120 is applicable to other conﬂicts which ought to be resolved by High Court or the Supreme Court and also: (a) In case the same action is pending in different courts and the period of limitation to raise the objection to jurisdiction and defence of litispendence, has expired; (b) In case the same action is pending in two different courts, and one of them finds itself to be competent and, therefore it is no longer possible to raise before the other court or courts, the plea of incompetence or of litispendence. (c) To the case when one of the court finds itself incompetent and remits the matter to a different court and, therefore, it being no longer possible to argue before the latter court, either the defence of incompetence or that of litispendence. 41 CHAPTER VI ASSURANCES OF IMPARTIALITY SECTION I IMPEDIMENTS - DISQUALIFICATION DUE TO CONFLICT OF INTEREST Article 122 – Reasons for disqualification of judge - No judge shall exercise his functions under contentious jurisdiction (adversarial matters) or voluntary jurisdiction: 1) Where he is party to the cause by himself or as a representative of another person, or when he is, in respect of the subject-matter in the same situation as any of the parties; 2) Where he is party to the cause himself or as representative of another person, his spouse, any of his descendants, ascendants, brother or sister or relative in the same degree; 3) Where he has participated in the cause as attorney or expert or when he has to decide question about which he had given opinion or has decided; 4) When his spouse or any descendant, ascendant, brother or sister or relative in the same degree has intervened in the cause as a judicial attorney; 5) Where it is an appeal from a decision passed by him or by any of his relatives, by consanguinity or afﬁnity, in direct line or in the second degree of the collateral line; 6) Where the party in the suit is a person who had ﬁled a civil suit for loss and damages against him or had filed criminal complaint against him, in consequence of the facts done in exercise of his functions or by reason of the same, or when the spouse of such person or any of his relations, by consanguinity or afﬁnity, in direct line, or in second degree of the collateral line, is a party thereto, where the suit has been registered or the charge has already been framed; 7) Where he has already deposited or has to depose as witness. § Sole Paragraph: The impediment under clause (4) is only arises when the attorney had already begun to exercise his powers at the time when the judge was posted in the respective division or in the respective circle. In the contrary case, it is the attorney who is debarred from acting as attorney. In the judicial divisions in which there is more than one sections or before the superior courts, the spouse, ascendant, descendant or brother or sister of the judge who by virtue of the assignment has to intervene in the decision of the cause cannot be admitted as attorney, but if such person has 42 already filed applications or pleadings in the proceeding at the time of the assignment, it is the judge who shall be debarred from functioning.  Articles 122-137 - Assurances of impartiality, Conflict of interest of judges, Suspicion.  These in our law are dealt with in case law under “bias” in natural justice normally in administrative law. Article 123 – Duty of disqualified Judge - Where any of the circumstances foreseen in the preceding article are satisﬁed, the judge must soon, by order in the proceedings, declare himself as disqualiﬁed and pass the cause to his substitute, or in the superior courts to the judge immediately after him. If he does not do so, the parties may apply, until the judgment, for the judge to declare himself as disqualiﬁed. What is provided in Paragraph 1 of article 88 is saved. Article 124 – Cases of disqualification in Judicial benches - The judges of a collective court who are relatives by consanguinity or afﬁnity in a direct line or in the second degree of the collateral line are disqualiﬁed from simultaneously participating in the hearing in the collective court. As regards a collective court of the judicial division, out of judges connected by family relation mentioned above, only the judge dealing with the case shall participate individually in the trial of the case; and if the impediment is in respect of only the assistant judges, the senior-most amongst them shall participate. With reference to the superior court, only the judge who is of the ﬁrst rank in accordance with the order in which they must vote, shall intervene. Article 125 – Disqualification of officer of Public Ministry and of the staff of the Court - To the ofﬁcers of the Public Ministry, what is stated in Paragraph 1, 2, and 6 of article 122 is applicable. They are also disqualiﬁed from participating in the matter when they have intervened therein as attorneys or appointed experts or appointed by the opposite party to represent him or to render assistance. To the staff of the court ofﬁce, what is stated in Paragraph 1, 2, and 3 of article 122 is applicable, and also they cannot function if they have been participating in the case as attorneys or experts of any of the parties. § Sole Paragraph: The officer of the Public Ministry or member of the court staff must disclose the impediment and ask for substitution, failing which they shall incur disciplinary liability. 43 If he does not do so, the parties may apply for a declaration of the impediment while the officer or the functionary is in a position to intervene in the proceedings. SECTION II RECUSAL AND LACK OF CONFIDENCE Article 126 – Request for recusal by judge - The judge cannot voluntarily declare himself to be a-suspect; but he can request for being dispensed from the participation in the case when any of the circumstances foreseen in the following article is satisﬁed, and besides this, when in any other circumstances he thinks that his impartiality may be suspected. § 1: The period for making such a request shall be counted from the date of the order by which notice was directed to the respondent or from the date of ﬁrst intervention if it comes after the said order. When the request is based on supervening facts, such period shall start from the date on which these facts had come to his knowledge. § 2: The request shall, precisely, indicate the facts that justify it and the same shall be addressed to the Chief Justice of the respective High Court who shall have the power to collect any information and shall grant or refuse the request, without appeal. If the judge belongs to the Supreme Court, the request shall be directed to its Chief Justice. § 3: When the request is founded on any of the facts in the following article, the Chief Justice shall hear, if he thinks appropriate, the party which may oppose the suspicion, ordering to deliver to such party the copy of the statement of the judge. § 4: To this case, what is provided in article 132 is applicable. Article 127 – Grounds for suspicion against judge - The parties may raise suspicion against a judge only on one of the following grounds: 1) If there exists any relationship, by consanguinity or afﬁnity, in the third or the fourth degree of collateral line, between the judge or his wife and any of the parties; 2) If there is a case in which the judge or his wife, or any relative of any of them by consanguinity or affinity in direct line is a party and any party is a judge in the matter. 3) If there was or had been, in the preceding three years, any cause not contemplated in article 122, clause (6), between any of the parties or their spouses and the judge or his wife, or any 44 relation of any of them, by consanguinity or afﬁnity in direct line. 4) If the judge, his wife, or any relation of any of them, by consanguinity or affinity in direct line, is creditor or debtor of any of the parties; 5) If the judge is the pro-guardian, heir apparent, donor or employer of some of the parties and if the judge is the member of the management or administration of any collective body which is party in the suit. 6) If the judge has received gifts, before or after the institution of the suit, and for that reason if he has advised some of the parties on the subject of the suit, or if he has provided for the expenses of the proceedings. 7) If there is great enmity or intimacy between the judge and any of the parties. § 1: The provision in clause (3) covers criminal cases when persons therein are or had been offenders, participants or objectors. § 2: The cases foreseen under clause (3) and (4), the plea of suspicion shall be rejected when the factual circumstances suggest that the suit was ﬁled or the credit was obtained to know the reason for refusal by the judge. Article 128 – Time limit for raising suspicion - Suspicion may not be pleaded when the judge has exercised power given to him under article 126. If the judge has not made use of it, the period of limitation for raising the plea of suspicion shall be the period till the date up to which it was lawful for the judge to formulate the request for being excused, save in case where this period expires before ﬁve days from the date of service of summons upon the defendant, because in that case the defendant may argue the same within ﬁve days of the service of summons upon him. § 1: If the judge of the ﬁrst instance has not participated in the suit since its commencement, the period to raise the plea of suspicion shall never terminate before the lapse of ﬁve days after the notice of the ﬁrst act in which the new judge participates. § 2: If the ground of suspicion or its cognizance is supervenient, the party shall complain the fact to the judge as soon as he gets knowledge of the matter, and raise the plea of suspicion if the judge does not use the power given by article 126. When the judge has not made the request to be excused, he shall be permitted to prove that the complainant was aware of the ground of suspicion for a long time and the complainant had no objection against the judge and, therefore, the objection is belated. 45 Article 129 – How to raise and pursue suspicion - The person raising the plea of suspicion shall precisely indicate the grounds of such a suspicion, and the proceeding shall soon be handed over to the judge against whom the suspicion is raised for him to respond. The lack of reply implies admission of the facts alleged, and the incidental proceedings shall be immediately sent to the Chief Justice of the High Court. If the judge contests the suspicion, the advocate of the party opposite to the party raising the plea of suspicion shall be authorized to examine the proceedings in order to give his say. If there are witnesses to be produced, the ﬁle shall be handed over to the substitute judge who shall immediately proceed with the examination of the witnesses. Examination of witness by letter of request is not permitted. § 1: The incidental proceeding shall be appended to the main proceeding. § 2: The provisions contained in articles 307, 308, and 309 are applicable. Article 130 – Judgment on the question of suspicion - Upon enquiry, or when there is no enquiry, the ﬁle of the incidental proceedings shall be detached and transferred to the Chief Justice of the High Court, who shall decide without any appeal being permissible. The Chief Justice of the High Court may, before the decision on suspicion, call upon the parties or the judge, against whom the plea of suspicion is raised, to give clariﬁcations which he finds necessary. Such a requisition shall be made by way of ofﬁcial letter directed to the judge against whom the suspicion is raised, or to the substitute judge when the clariﬁcations need to be furnished by the parties. § Sole Paragraph: If the documents meant to serve as proof of the basis of suspicion or the reply cannot be immediately produced, the Chief Justice may admit them subsequently when the delay is justiﬁed. Article 131 – Suspicion against Judge of High Court or Supreme Court - If the suspicion is against the judge of High Court or of the Supreme Tribunal, the same shall be decided by the Chief Justice of the respective court, observing the applicable part of the provision contained in the preceding article. The witnesses, in this case, shall be examined by the Chief Justice himself. 46 Article 132 – Effect of the plea on the proceedings - The main case shall follow its normal course before the substitute judge; but neither the curative order nor the ﬁnal decision shall be passed while the plea of suspicion has not been decided. In the High Court or the Supreme Tribunal, when the suspicion is against the judge who prepares the judgment, the immediate joint judge shall prepare the judgment, and the proceedings shall be sent to the next joint judge immediate to previous joint judge; but no cognizance of the matter will be taken, nor any decision that-may prejudice this cognizance shall be taken, while the plea of suspicion is not decided. Article 133 – Consequence of recusal or suspicion being accepted - Where the plea of excuse or suspicion is allowed, the judge who was, in terms of the previous article, called in substitution, shall continue to hear the proceedings. If the plea of excuse or suspicion is rejected, the judge who sought to be excused or against whom suspicion was alleged shall participate in the matter, even if the proceedings was ready for judgment. § Sole Paragraph: When the Chief Justice of the superior court rejects the plea of suspicion, he shall always ascertain if the party whose plea was rejected, acted in bad faith. Article 134 – Grounds for suspicion against staff of Court - The parties may also raise suspicion against the staff of the ofﬁce on the grounds indicated under various clauses of article 127, with the exception of clause (2). But the facts contemplated in clauses (3) and (4) of the same article can only be invoked as the grounds of suspicion when the same are satisﬁed conﬁrmed between the ofﬁcial or his wife and any of the parties. Article 135 – Time limit to raise suspension - The period of limitation to raise the plea of suspicion is to be counted from the date of receipt of the initial petition in the ofﬁce, or of its allotment when the plea is raised by the petitioner; and from the service of the notice or the allotment when the plea is raised by the respondent. Where the cause of suspicion is supervenient, the period of limitation shall run from the time when the fact came to the knowledge of the concerned party. 47 Article 136 – Processing of the plea - The incidental shall be processed in accordance with article 129, with the following modiﬁcations: 1) The examination will be permitted solely to the judge. The advocate for the other side shall have no participation in the incident. 2) Until the incident of suspicion is decided, the judge shall not participate in the main proceedings. 3) The deciding judge shall take all the regular steps of the incident and shall decide the incident, without there being any appeal therefrom. Article 137 – Effect of plea being allowed - Where the plea of suspicion is allowed the Judge against whom the plea of suspicion was raised shall remain precluded from participation. 48 BOOK III PROCEEDINGS (Articles 138 – 1560) 49 BOOK III PROCEEDINGS TITLE I GENERAL PROVISIONS CHAPTER I PROCEDURAL ACTS SECTION I PROCEDURAL ACTS IN GENERAL SUB-SECTION I COMMON PROVISIONS Article 138 – Bar on unnecessary acts and mode thereof - It is not lawful to take futile steps in the proceedings. The form of these steps, when not expressly regulated in the law, shall be adapted to suit the purpose in view and shall be limited to whatever is indispensable to achieve such purpose. § Sole Paragraph: The staff of the court who infringes what is provided in this article shall incur disciplinary liability. Article 139 – Court language - In the judicial acts, always the Portuguese language shall be used. But when the foreigners are to be heard, they may express themselves in a different language if they do not know the Portuguese language, it being required to appoint for them an interpreter, when necessary, in order that they may depose on solemn afﬁrmation The intervention of the interpreter shall be conﬁned to what is strictly necessary. Article 140 – Translation of documents written in foreign languages - When the documents written in foreign language are produced without translation made by the notary, the judge may order, ex-officio or upon the application of the opposite party, that the witness produces a 50 translation authenticated by the diplomatic or consular ofﬁcial of the respective State, except where the court has an ofﬁcial translator. In the absence of the diplomatic or consular ofﬁcial of the respective State, the documents shall be translated by the expert appointed by the court. Article 141 – Means of expression and communication of deaf and dumb - Whenever a deaf, dumb or one deaf and dumb person is to be heard, the word shall be substituted by writing to the extent necessary and possible. In the last case, there shall be intervention of an interpreter, who on oath shall transmit, by signals, the questions or the replies or some and others. Article 142 – Law regulating procedural acts - The procedural acts are regulated by the law which is in force at the time when they are done. Article 143 – When judicial acts may not be performed - Judicial acts cannot be performed on Sundays, holidays or during the vacations. From the above, are excluded, service of summonses, service of notices, holding of auctions, and the acts which are meant to avoid irreparable loss. § Sole Paragraph: When the date ﬁxed for sittings or judicial acts falls on holidays, the same shall be carried out on the ﬁrst working day following the holiday.  Estatuto Judiciario (Judicial Statute), Art 48. Article 144 – Time limits for judicial acts - The period of time for a judicial act is laid down by law or by order of the judge. Article 145 – Continuity of time - The period of time for judicial act is continuous. It starts running irrespective of any notice or any other formality and runs continuously even during vacations, Sundays and holidays, save for special provisions of this Code. Article 146 – Dilatory or peremptory time limit – Just cause - The period of time is dilatory or peremptory. The lapse of peremptory period of time extinguishes the right to do the respective act, except where the party was prevented from doing the same for just cause. 51 § 1: If the peremptory period of limitation expires during vacation or Sunday or any holiday and it is not possible to perform the act by its nature, the time stands extended to the ﬁrst working day that follows. § 2: The party who pleads just cause shall immediately produce the proof. The judge, after hearing the opposite side, shall allow the applicant to do the act beyond the period of limitation if the judge is satisﬁed that the party was prevented by just cause, and further is satisﬁed that the party approached the court as soon as the cause ceased. Only an unforeseen event, alien to the will of the party, which makes it impossible for the party to do the act by himself or through the lawyer, shall be considered as just cause.  Note : Dilatory is the period which may be extended by the court considering the circumstances of the case. Article 147 – Time for Judicial acts cannot be extended - The time for judicial acts cannot be extended except in cases speciﬁed by law. Article 148 – Counting of period - For the purpose of counting the period for judgment, the day on which it commences, even if there are hours left, is not to be counted, but the day on which it ends, is to be considered. § 1: When the peremptory period of limitation is followed by dilatory period, both the periods are to be considered as one for the purpose of the present article. § 2: The period of a month is always thirty days. The period of a year ends on the same day and month of the following year. Article 149 – Where judicial acts are to be practiced - The judicial acts are to take place at the site in which they can be more efﬁcacious; however, they may take place at other places for reasons of deference or for sufﬁcient cause. When no reason is given for performance of the acts at other places, the acts are performed in the court.  Article 599, 629 etc. of this Code. 52 SUB-SECTION II ACTS OF PARTIES Article 150 – Who can apply - Applications may be written and signed by the parties, except when law requires signature of the advocate or of the legal advisors. If the parties are not known to the court, the court may demand production of identity card or, if that is not available, the identiﬁcation of the signature by notary. Article 151 – Definition of pleadings - Pleadings are the briefs in which the parties state, whether by numbered paragraphs or not, the grounds of their case or defence and seek reliefs corresponding to the same. § Sole Paragraph: Pleading by numbered paragraphs is mandatory when the law expressly so provides. Article 152 – Need for duplicate copies - The pleadings shall be presented in the court ofﬁce in duplicate without which they will not be received. When the pleading relates to more than one person, as many copies are to be supplied, as there are defendants living separate, except where all are represented by one advocate. § Sole Paragraph: Besides, where the copies which are to be handed over to the opposite party, the parties shall supply one more copy, without being on stamp paper, for the record of the court, and to be used in the event of reconstruction of the ﬁle in case it is misplaced. Article 153 – Purpose of arguments - In the arguments, oral or written, the parties are to support their stand in the case. Article 154 – General rule as to judicial time limit - In the absence of special provision, a period of ﬁve days is prescribed for the parties to move the court for any act to be done or step to be taken, plead nullities, apply for incidental proceedings, and take, in short, any procedural step; and also a period of ﬁve days is prescribed for the opposite party to give the answer to any such application.  This is a very important provision when no time is fixed for the parties to exercise any procedural rights or to reply to anything raised by the other side, recourse to this article is taken; the time is of 5 days. 53 Article 155 - Misdemeanour by advocates or law officers - The advocates and legal practitioners who, in writing or orally, show disrespect to the prevailing norms, to the laws or the court, shall be warned courteously by the Presiding Officer, who besides this may direct that any offensive expressions be expunged and prevent the right of being heard, without prejudice to the criminal prosecution. Where the advocate does not obey the decision which prevents the right of being heard, the president is empowered to expel him from the court hall or any other place where the judicial act is taking place. When right of audience is withdrawn and in the case of expulsion, notice is given to the Bar Council specifying the excess committed so that the Bar Council takes its disciplinary action. Where there is any disregard on the part of the law ofﬁcers of the Public Ministry, notice will be addressed to the Superior Judicial Council for it to take appropriate steps. When the excess is committed by the parties or by other persons, the Presiding officer may apply same sanctions as imposed on the advocates, and even impose ﬁne depending upon seriousness of the offence. § 1: The expressions and utterances necessary for the defence of the case are not to be considered offensive. § 2: In the proceedings pending before the higher courts, the expunction or imposition of ﬁne may be imposed only by way of order of the collective court. § 3: An appeal lies from the decision of the court of ﬁrst instance or second instance which directs expunction or imposition of ﬁne, and it shall always operate as stay of the impugned order. Also from the decision to withdraw the right of audience or direct expulsion, appeal from order lies and the effect will be suspended till the decision of the appellate court. § 4: If the excess is committed in the arguments submitted before the lower court, it is for the superior court to exercise the disciplinary power, except in case of appeal from order, in which this power is to be exercised by the court appealed from. The withdrawal or abandonment of the appeal does not prevent the excesses of the language committed in the arguments from being dealt with, and power is with the court before whom the ﬁle is pending at the time of withdrawal or abandonment. § 5: When ﬁne is imposed, notice will be given to Public Ministry for the purpose of execution. 54 SUB-SECTION III JUDICIAL ACTS Article 156 – Duty to decide and carry out decisions of higher courts - Judgment - The judges have the duty to administer justice, passing order or judgment on the matters pending before them and complying, in accordance with the law, with the decisions of the superior courts. § Sole Paragraph: The act by which the judge decides the principal cause or any incidental proceeding ﬁled which, according to law, has the characteristic of a cause is called a judgment. The judgments of the collective courts have a special designation of division bench judgment (“acórdãos”)*. Article 157 – Formal requisites of judgment and order - The orders, judgments and bench judgments (‘acórdãos’) shall be written by the respective judges and shall contain date, nature, and the name, in full or in brief, of the judge who has delivered them. § 1: Instead of writing the entire order or judgment in the ﬁle, the judge may deliver the same to the ofﬁce to be reproduced in the record, a typed copy containing the original facts of the case and the grounds, and in this case, the judge shall take care that the revision is made carefully, noting below, the corrections, erasures, and initial all the pages. The decision and signature shall always be in the handwriting of the judge. § 2: The orders and judgments pronounced orally, in the course of the trial, should be recorded in the minutes and will be reproduced therein. The signature of the judge on the records of the minutes of the hearing guarantees the authenticity of the judgment. § 3: The judgments and bench judgments (‘acórdãos’) are to be registered in a special book. Article 158 – Duty to pass speaking orders - The decision passed on any controverted point or on any doubt raised in the proceeding shall always be supported by reasons whether in granting the prayer or refusing the same. Justification cannot be mere agreement with the points raised in the application or in the reply. * At several places we have translated this as “collective judgment”. 55 Article 159 – General time limit for orders - In the absence of any special provision all orders which are not merely of administrative nature are to be pronounced within 5 days. Such period does not run during the holidays of Christmas, Carnival and Easter. The orders of administrative nature shall be passed immediately. Article 160 – Time limit for say - The say of the Public Ministry shall be given within a period of 3 days, unless otherwise provided by the law or by the judge. SUB-SECTION IV ACTS OF THE REGISTRY Article 161 – Who should write records and minutes - The notings and minutes of proceedings in which the judge or the Law officers of the Public Ministry take part shall be written or typed by the head of the registry or under his direction. § 1: Where the minutes and notings are typed, the checking shall be made with all the care. § 2: It is permissible to use the printed forms which shall be completed by the person on whom obligation to write the minutes and notings is cast. Article 162 – Formal requirements of records and proceedings - The notings and minutes and certiﬁed copies issued by the court shall never contain open spaces, which are not crossed, nor interlineations, erasures or corrections which are not noted at the end as errata notes. No abbreviations shall be used and the dates and numbers connected with the rights or liabilities shall always be in figures and words. Article 163 – Comprehensiveness of records - Every minute and noting should disclose by mere reading the text, without there being need to refer to any other portion of the ﬁle. Article 164 – Signature on records and proceedings - The minutes and notings are valid provided they are signed by the judge and the concerned staff of the court. If in the act there is no intervention of the judge, the signature of the concerned staff of the court is sufﬁcient, except where the record is of the expression of the will of any of the parties or they incur some liability 56 themselves, because in such cases it is necessary that there should be signature of the party or its representative. § Sole Paragraph: Where it is mandatory for the party to sign and he is unable to do so or does not wish to do so or does not know how to sign, the minutes or notings shall be signed by two witnesses who identify the party. Article 165 – Initials on the pages of the file - The head of the ofﬁce is bound to initial all the pages of the ﬁle in which his signature does not ﬁgure; and the judges shall initial, the pages of the ﬁles wherever they have intervened, except when they have already afﬁxed their signature. § Sole Paragraph: The parties and their agents shall have right to initial any pages of the ﬁle. Article 166 – General time limit for office to process matters - The registry shall obtain orders of the judge in chamber on proceedings obtain on the ﬁle the say of the Public Ministry made it available for inspection, have warrants issued from normal acts, within a period of two days, except in the case of urgency. Article 167 – Inspection in the office of pending of closed files - Pending ﬁles or those kept in records may be examined in the registry, by the parties, or by any advocate or legal advisor. But the ﬁles of annulment of marriage, divorce, separation of persons and assets and challenging legitimacy of paternity, may be examined only by the parties and their representatives; and the proceedings of interdiction by prodigality before the publication of the judgment, of the seizure, sealing and listing and similar, before the conclusion of the respective acts, may be permitted to be examined only by the applicants and their agents. Article 168 – Right of advocates to inspect files at their residence - The advocates appointed by the parties may apply that they may be entrusted with ﬁles for examining them at their residence. § 1: In the application, the advocate shall make solemn afﬁrmation that he undertakes to return the ﬁle within the time assigned to him by the judge and in failing to give such undertaking the application is liable to be rejected. § 2: The judge, after hearing the registry orally or in writing, may grant the request when there is no inconvenience to the ofﬁce, ﬁxing the period for examination which shall not be extended. 57 Article 169 – Register of handing over files to advocates - The delivery of the ﬁle to the advocate shall always be registered in special book indicating the particulars of the proceeding, date and time of the delivery and time granted for examination. The notings shall be signed by the advocate or his employee duly authorized in writing. When the proceeding is returned, the noting shall be done by doing the cancellation at the margin. Article 170 – Penalty for failure to return file within time - The advocate who breaches his undertaking, shall not thereafter be entitled to get the beneﬁt referred to in article 168 and without any notice incur penalty for suspension for 1 month and a ﬁne, if he does not deliver it within 5 days, and if 10 days elapse, double the penalty will be leviable. If, at the end of 2 months he does not return the ﬁle, the matter will be reported to Public Ministry which will initiate criminal proceedings and seize the file. Article 171 – Special provision for inspecting file at home instead of in the Court office - Whatever is provided in the preceding articles is applicable to the cases in which by provision of law, time limit is ﬁxed for the advocates of the parties, to examine the ﬁle in the ofﬁce; in such cases the application shall always be granted with the exception provided in the preceding article. § 1: There being different periods ﬁxed for each of the parties, the respective advocate may enjoy this facility granted in this article within time ﬁxed for his client. If, when the period ﬁxed is cumulative to all, the judge would divide it between the parties so that a defendant or the respondent is the last one to avail of the same. § 2: In the event the advocate does not return the ﬁle within 5 days subsequent to the period ﬁxed, besides incurring the penalty prescribed in the preceding article, he shall also lose the right to submit written arguments.  Article 648, 699, 716 of this Code. Article 172 – Examination of file by Public Ministry and Advocates appointed by Court - The representatives of Public Ministry and the advocates appointed by the Court are also entitled to examine at their residence the pending proceeding in which they intervene, independent of the solemn afﬁrmation referred to in Paragraph 1 of article 168. The request shall be rejected if the delivery of the ﬁle causes serious embarrassment to the progress of the case. 58 § Sole Paragraph: When the ﬁle is not returned within the time, the provisions of preceding articles shall apply to the appointed advocates. Article 173 – Inspection at home of closed proceedings - With reference to closed proceedings, the advocates who could apply for inspection of the current ﬁles in the ofﬁce may also apply for delivery as per article 168. § Sole Paragraph: The registry shall not refuse to the law officers of the Public Ministry the inspection or delivery of any closed proceedings. The delivery shall be made by simple requisition in writing independent of the order of the court. Article 174 – Duty to issue certificates - The ofﬁce shall, without need of any order from the court, issue certiﬁed copies, abstract or full text, of all the judicial acts and notings, when demanded by the respective parties or any advocates and legal advisers. § Sole Paragraph: In the cases referred to in the last part of the article 167, when they are at the conﬁdential stage, certiﬁed copies may be issued only to the applicants or their agents. In relation to ﬁles which may be shown only to the parties or their representatives, no certiﬁed copies shall be issued without prior order in respect of the need on the written application giving reasons for the necessity to obtain such certiﬁed copies; the order shall ﬁx the contents of the certiﬁed copies so that the parties are not deprived to enforce their right and at the same time the conﬁdential character of the said ﬁle is protected.  See Art 138 and 139 of Judicial Statutes. Article 175 – Time limit for issue of certified copies - The certiﬁed copies shall be issued within a period of 5 days. When the ofﬁce, refuses to grant it or delays the issuance of the certiﬁed copies, the party shall move the court for direction to be issued. If the court after hearing the concerned clerk, holds that the refusal is justiﬁed, it shall reject the application; where the court ﬁnds that the delay is justiﬁed, shall ﬁx time within which the certiﬁed copy shall be issued; if the court ﬁnds the behaviour of the ofﬁcer is irregular, the court shall admonish the ofﬁcer or impose on him more grave punishment depending upon the circumstances of the case and direct him to issue the copy within time ﬁxed. 59 § Sole Paragraph: In case of urgency the interested party may apply that the copy may be issued within less than 5 days.  Art 139 of Judicial Statute. SUB-SECTION V NOTIFICATION OF JUDICIAL PROCEEDINGS Article 176 – Issuance of writ of summons, letter, official letter or telegram to requisition judicial acts - The communication of the judicial acts may be directed or solicited by way of issuance of writ of summons, letter of request, ofﬁcial letter or telegram. The writ is issued when the act has to be done within the territorial limits of the jurisdiction of the court who orders it. The use of the letter of request is employed when the act is to be performed outside the jurisdictional limits of the court. The letter is precatory when the request has been made to a Portuguese court or consul and it is letter rogatory when the act is solicited to a foreign authority. If the execution of the act is of urgent nature it may be ordered or solicited by way of telegram. The summons, notices and affixation of public notices may be solicited even to the foreign authorities by way of ofﬁcial letters. Also by a simple ofﬁcial letter or telegram it is permissible to suspend the compliance of any letter of request already issued even though the compliance of the same was already commenced. § Sole Paragraph: Whatever is said about the letter of request applies equally to the ofﬁcial letters and to telegrams. Article 177 – To whom the letters should be addressed – Duty to comply - The letters shall be addressed to the court of the Judicial Division in whose jurisdiction the act is to be performed; but if it is found that the act is to be performed at any other place, the letter should be complied with by the court of the judicial division at that place. The courts of judicial division may direct compliance of letters, ofﬁce letters, and telegrams for service of summons, notices and service by way publication of summons through justices of peace. § 1: It is permissible to solicit the summons, notices and service by way of publication of summons directly from the local subordinate court. It is also permissible to ask directly from the 60 local court to comply with any other request provided that it is done through local subordinate judge or arises from proceedings in the jurisdiction of the local subordinate court. § 2: The letter for summons, notice, examination or deposition of the working judge, his wife or any ascendant or descendent by consanguinity shall be addressed to the court mentioned in articles 88 and 89. To the same court shall be addressed the letters for any other steps when they emerge from the proceedings where any of the said persons are parties. For the purpose of compliance with the letter of request the court shall have the same powers as given by Paragraph 2 of the article 88. Article 178 – Content of letter - The letter shall be drafted with all simplicity and shall contain only what is strictly necessary for carrying out the steps. Article 179 – Enclosing of autographs or other plan with letter - If in the records there is any autograph, or any plan, drawing or chart which is required to be examined by the parties, experts or witnesses in the relevant act, such papers shall be sent or one photo copy of the same. If the originals are sent, the letter of request shall be issued and returned officially. In such case before the issuing of the letter, any party may get the original photocopied, but without the ﬁle having to be given to him for this purpose. Article 180 – Time limits - In the letters of request for summons, the extended time limit shall be indicated which shall not be extended. In the letter of request for personal appearance the date on which the party shall appear in the court shall be indicated. Keeping in mind the distance and the facility of communication the extended period shall be ﬁxed within the following limits: (a) Between 3 to 8 days when the proceedings are taking place in Continental Portugal and the service is also to be effected in the continent; (b) Between 3 to 10 days when the court is in the adjacent island and the service is to be done in the same island; (c) Between 8 to 30 days when one of the localities is in the continent and the other is in one of the islands or when the both localities are in different islands or when the summons is to be 61 served in foreign countries within Europe or in the colonies of Guiné, Cabo Verde and S. Tome; (d) Between 30 to 60 days when service of summons is to be effected in Angola; (e) Between 3 to 4 months when the service is to be effected in any other colony or in a foreign country. The same rules shall be followed for the ﬁxation of the day for the appearance in person. Article 181 – Time limit for compliance with the letters - In the letter of request for taking any other step in the proceeding time shall be ﬁxed within which the request should be fulﬁlled. Such time starts from delivery or dispatch of the letter and the dates on which the judicial acts cannot be done, shall not be taken into account. Considering the distance, the means of communications and nature of step to be taken to the court, shall ﬁx time within the following limits: (a) Between 10 to 40 days when the issuing court and the receiving court have their ofﬁces in the continental Portugal or in the same island; (b) Between 30 to 90 days, when one of them has its ofﬁce in the continent and other in any other islands or when the ofﬁces are in different islands or when step is to be taken in a foreign country of Europe; (c) Between 60 days to 4 months when the step is to be taken in any of the colonies of the West Africa; (d) Between 60 days to 6 months, when step to be taken in any other colony or other foreign country; § 1: Where it is seen from the certiﬁed copy that before the end of the period ﬁxed, the letter cannot be complied with within the stipulated time, the time will be further extended. The time limit will not come in the way of the letter being received late if there is no decision on the factual merits of case. § 2: If within the time ﬁxed it was found that the letter of request was lost, the duplicate copy of the same shall be sent for the compliance. Article 182 – Dispatch and delivery of letters - The letter of request issued from the proceedings under orphans’ jurisdiction shall be sent by the Ofﬁce of the court. Those of the other proceedings shall also be issued by the Ofﬁce of the court when they relate to leading evidence; 62 in other cases shall be delivered to the party applying for it, except when the law demands that they may be issued ofﬁcially or the interested party so applies. The letter of request, whichever may be the purpose, shall be sent by the ofﬁce of the court directly to the authority or to the foreign court unless there is a convention to the contrary. The papers will be sent through diplomatic agency or consular agency, as provided by the law of that country; where the country does not receive ofﬁcial communication, the letter of request shall be handed over to the interested party. § Sole Paragraph: The opposite party shall be given notice of the dispatch or delivery of the letter for leading evidence. Article 183 – Effect of letter of request on progress of proceedings - The issuing of a letter does not come in the way of further steps in the matter, which are not absolutely dependent on the steps which have been asked to be taken by way of letter of request; however, the arguments and judgement shall not take place unless the letter of commission is provided or the time ﬁxed for the compliance is over. Article 184 – Valid reasons to refuse compliance with letter of request - The court to which the letter of request was addressed, may decline to comply with the same in the following cases: (1) If there is doubt as to the authenticity of the letter of request. (2) If the court lacks competence on merits or hierarchy in relation to the subject of the letter of request. (3) If the request has been made for the act which is absolutely prohibited by law. Article 185 – Legitimate reasons for refusal to comply with letters rogatory – Compliance with letters rogatory shall be refused in the cases mentioned in the previous article and also in the following cases: (1) Where the letter has not been legalized; (2) Where the act is contrary to the Portuguese public order; (3) If the execution of the letter threatens sovereignty and security of the State; (4) If the act amounts to execution of the decision of the foreign court which is subject to revision and conﬁrmation and the same has not been revised and conﬁrmed. 63 Article 186 – Procedure for compliance with letters rogatory - The letters rogatory issued by foreign countries shall be received by any route save treaty or convention to the contrary. Upon the receipt of the letter rogatory, the Public Ministry shall be heard and thereafter it will be decided whether the same is to be implemented. The Public Ministry may appeal from the order directing the compliance and such appeal from order shall operate as stay of the impugned order. Article 187 – Powers of recipient Court - It is the duty of the court recipient of the letter request or letter rogatory to give effect to the letter in accordance with the law. In the event in the letter rogatory there is request which does not offend Portuguese law, the court will comply with the same. Article 188 – Return of letter of request after compliance - After the letter of request has been complied with, without retaining its copy, it shall be returned or delivered and the office shall indicate by noting the proceeding the distance between the remitting court and the recipient court when there is a requirement of such formality. The cost shall be submitted to the remitting court at the proper time. Upon the return of the letter, the same will be kept in the records of the case and the opposite party shall notify by post except in the case of issuance of summons or notice or by publication. The periods of time depending on compliance with the letter are counted from the date next to the receipt of the letter of request. Article 189 – Signature on the writs - The writ shall be signed by the head of the registry by order of the court. Article 190 – Cases in which writ may not be issued - No writ shall be issued: (1) When act is drawn in ordinary paper. (2) When the act has not been done by the bailiff. Article 191 – Contents of writ - The writ shall contain besides the order of the court the indication which is absolutely necessary for the purpose of the implementation. 64 Article 192 – Performance of acts delegated to the subordinate judge or justice of peace - The acts delegated to the subordinate judge or justice of peace shall be executed by the writ of the Senior judge of the respective judicial division. The delegate judge shall pass his order on the writ and shall return to the court of the judicial division after compliance. SUB-SECTION VI NULLITY OF ACTS Article 193 – Defective Petition – The entire proceedings are null and void when the initial petition is defective. The petition shall be considered defective: (a) When it is not possible to know what the relief is; (b) When it is not possible to know what the cause of action is; (c) When the relief is in contradiction with cause of action; (d) When inconsistent reliefs have been sought together. § 1: .Where the respondent raises the plea that the petition is defective on the grounds mentioned in clauses (a) and (b) and ﬁles his statement of defence, the objection raised is not to be held to be tenable when after hearing the petitioner it is found that the respondent interpreted the plaint correctly. § 2: In the case of clause d) nullity shall subsist even though one of the reliefs may become ineffective by reason of lack of jurisdiction of the court or error in the form of the proceedings. Article 194 – Cases in which the entire proceedings subsequent to petition are annulled - The entire procedure after the initial petition is null and void retaining only the plaint; (1) When the respondent has not been summoned; (2) When the Public Ministry has not been summoned right at the commencement of the proceedings, in cases where it is the principal party; (3) Where there is an error in the form of procedure and nothing can be saved except the petition in terms of article 199. 65 Article 195 – When the service is taken as not effected - There is lack of service of notice; (1) When the act has been completely omitted; (2) When there is error in the identity of the party notified; (3) When the notice by publication has been wrongly used; (4) When service has been effected omitting essential formalities. § Sole Paragraph: Following are essential formalities: a) In the service effected on the person of the respondent the delivery of the duplicate and signature of the summoned person or the intervention of 2 witnesses when the summoned person does not sign; b) In the case of third part of article 235, the affixation of the note at the place and with the requisites which the text requires and issuance of the registered letter in terms of Paragraph 2 of article 243; c) In the service made on a person other than the respondent: such person must be designated by the law; it should be a clear case where the law permits the substitution; the delivery of the duplicate; the signature of the same person in the certiﬁcate or intervention of 2 witnesses and remission of registered letters in terms of Paragraph 2 of article 243; d) In summons through post in terms of article 244, signature on the acknowledgement due card and delivery of the duplicate; e) In service by publication of the summons, the afﬁxation of such notice on the door of the house of the village official or on the door of the respective court and if the law also demands publication of advertisements, the publication of such notice in the newspaper of the locality in which it ought to have been published. Article 196 – Curing of nullity for lack of service - In the event the defendant or the Public Ministry intervenes in the proceedings, without raising immediately the point of lack of service on himself, the nullity is treated as cured. Article 197 – Consequences of lack of service where there are served respondents- There being many respondents the lack of service on one of them has following consequences: (a) In case of joinder of necessary parties, whatever has been processed after the service shall be annulled; 66 (b) In the case of joinder of proper parties, nothing is to be annulled, but if the proceedings are not yet at the stage of ﬁxing the date for the trial, the petitioners may pray that the respondent be summoned. In such case the trial shall not proceed, unless the respondent who is not served is allowed to take in the proceeds the steps of which he was deprived for lack of service in time.  Art 28, (a) 2nd part of (c). Article 198 – Nullity of service - The service is null and void when essential formalities are observed but other formalities prescribed by law are omitted. The time to raise the plea of such a nullity starts from the date of service. However, the plea will be entertained only if the omission may prejudice the defence of the summoned party. § Sole Paragraph: If the irregularity consists in indication for the purpose of the defence of a period longer than that granted by the court, the defence should be admitted within the time limit indicated, unless the Plaintiff had taken steps for the Defendant to be served again as per the law. Article 199 – Consequences of error in the form of proceedings - Error in the form of proceeding shall only cause nullity of the acts which cannot be made use of and the acts that are strictly necessary so that the proceedings are more or less in accordance with the form prescribed by law, shall be carried out. However, the acts done shall not be used if there is decrease in the guarantees available to the respondent. § Sole Paragraph: The initial petition shall always be used even though it does not agree with the legal form. Article 200 – Absence of file inspection by Public Ministry - Absence of file inspection by the Public Ministry when the law demands its intervention as accessory party, is deemed as cured provided that the party who required assistance on the part of the Public Ministry, exercised its rights in the proceedings with the assistance of its legal advisor. If the case is of proceeding ex-parte, as against the party which ought to have been represented by the Public Ministry, the proceedings shall be annulled from the time when Public Ministry should have been permitted to inspect or examine the ﬁle. 67 Article 201 – General rule as to nullity of procedural acts - Besides the cases foreseen in the previous articles, the commission of an act which the law does not sanction and omission of an act or any formality which the law prescribes, gives rise to nullity only where the law expressly so declares or where the irregularity committed has bearing in the investigation or in the decision of the case. When one act is to be annulled, all the subsequent acts which absolutely depend on it shall also be annulled.  Article 710, sole paragraph. Article 202 – Nullities of which Court may take cognizance on its own -The court may take cognizance suo moto of the nullities mentioned in articles 193, 194, 199 and 200 unless they are deemed as cured. Of the others the court can take cognizance upon the complaint from the interested parties save in the special cases where the law permits suo moto cognizance. Article 203 – Who is precluded from pleading nullity - A party is debarred from raising the point of nullity where that party caused the same, or waived such right expressly or impliedly. Article 204 – Time upto which nullity may be argued - The nullities of article 193 and 199 may be raised till the ﬁlling of the defence statement or in the defence statement itself. The nullities of Paragraph 1 and 2 of article 194 and 200 may be raised at any stage of the proceedings, as long as they cannot be considered as cured. Article 205 – General rule as to objection - In respect of other nullities, where the party is present personally or through an agent, the irregularity may be pointed out at the time of commission of the irregularity but before the completion of the act; where the party is not present, the time limit to point out nullity is when, after the commission of the irregularity, the party was given notice of the proceedings or the party intervened in any act done in the same proceedings. When the irregularity is pointed out or noticed during the commission of the irregularity, presided over by the judge, the judge shall take necessary steps, so that the law is complied with. § Sole Paragraph: Where the proceeding has been sent in appeal before the end of the period ﬁxed 68 in this article, nullity may be raised before the higher Court and the period shall be counted from the date of the assignment.  See also Article 154 of this Code. Article 206 - At what point the Court can take cognizance of the main nullities - Cognizance of the nullities referred to in the articles 193, 194, 199 and 200 shall be taken in the curative order if their cognizance was not taken earlier; after passing the curative order, their cognizance can be taken upon an objection raised by the interested party whenever it is admissible. If there is no curative order, the cognizance can be taken of the same nullities till the ﬁnal judgment. Article 207 – General rule as to Judgment - About other nullities cognizance can be taken as soon as objection is raised. In the High Courts or in the Supreme Court, when objection is raised the judge preparing the judgment shall take the proceeding to the bench to be decided by a Bench judgment. Article 208 – Null acts cannot be reopened - The act which is null shall not be reopened if the period within which should have been done had lapsed. But if the reopening is beneﬁcial to the party who has no responsibility in the commission of nullity such case stands excluded. SECTION II SOME SPECIAL ACTS SUB-SECTION I ALLOTMENT OF CASES DIVISION I GENERAL PROVISIONS Article 209 – Purpose of allotment - If in a court there is more than one section, it is by way of distribution that the section or bench of the court to which the proceeding will be allotted and who amongst the judges shall prepare the judgment, is designated. 69 § Sole Paragraph: The distribution of the proceedings through the ofﬁcials of the secretariat of the superior Courts or of the section in the courts of ﬁrst instance shall be done by the head, as per internal regulation.  Articles 209-227 - Allotment and distribution of cases:-  These are dealt with in Civil Manual, by the Civil Courts and High Court Appellate side rules. Article 210 – Rules as to failure, irregularity or error in distribution - A mistake or irregularity in the distribution will not give rise to annulment of any judicial proceeding. The court of its own motion may or at the instance of the any interested party may supply the deﬁciency or correct the irregularity or any error till the ﬁnal decision. DIVISION II PROVISIONS RELATING TO THE FIRST INSTANCE Article 211 – Papers subject to distribution in the Court of first instance – The following papers are liable to be distributed in the Court of ﬁrst instance:

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