Code of Civil Procedure Amendment Ordinance 1980

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ORDINANCE X OF 1980

CODE OF CIVIL PROCEDURE (AMENDMENT) ORDINANCE, 1980

An Ordinance further to amend the Code of Civil Procedure, 1908

[Gezette of Pakistan, Extraordinary, Part I, 26th March 1980]

No. F. 17(1)/80‑Pub.‑The following Ordinance made by the President is hereby published for general information :‑

Whereas it is expedient further to amend the Code of Civil Procedure, 1908 (Vof 1908), for the purposes hereinafter appearing ;

And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action ;

Now, therefore, in pursuance of the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order. 1977 (C. M. L. A. Order No. 1 of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance :‑

1. Short title and commencement.‑(1) This Ordinance may be called the Code of Civil Procedure (Amendment) Ordinance, 1980.

(2) It shall come into force at once.

  1. Amendment of section 12, Act V of1908.‑In the Code of Civil Procedure, 1908 (Act V of 1908), hereinafter referred 0 as the said Code, section 12 shall be re‑numbered as subsection (1) of that section and, after subsection (1) re‑numbered as aforesaid, the following new subsection shall be added, namely :‑

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

3. Insertion of new section 34‑A, Act V of 1908.‑In the said Code, after section 34, the following new section shall be inserted, namely :‑

*"34‑A. Interest on public dues.‑(1)*Where the Court is of opinion that a suit was instituted with intent to avoid the payment of any public dues payable by the plaintiff or on his behalf, the Court may, while dismissing such suit, make an order for payment of interest on such public dues at the rate of two per cent, above the prevailing bank rate.

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

Explanation.‑In thissection,‑‑

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

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

  1. Amendment of section 51, Act V of 1908.‑In the said Code, in section 51, in the proviso, the commas and words ",where the decree for the payment of money" shall be omitted.

  2. Amendment of section 55, Act V of 1908.‑In the said Code, in section 55,‑

(a) in subsection (1), for the words and commas ", and his detention may be in the civil prison of the district in which the Court ordering the detention is situate or, where such civil prison does not afford suitable accommodation, in any other place which the Provincial Government may appoint for the detention of persons ordered by the Courts of such District to be detained" the words "which may make an order for his detention in prison to suffer simple imprisonment for a period not exceeding one year" shall be substituted ; and

*(b)*for subsections (3) and (4) the following shall be substituted, namely;

"(3) A judgment‑debtor detained in prison under subsection (1) shall not, merely by reason of undergoing such imprisonment, be discharged from his liability under the decree, but he shall not be liable to be rearrested under the decree in execution of which he was so detained in prison.".

  1. Amendment of section 56, Act V of 1908.‑In section 56, the word "civil" shall be omitted.

  2. Omission of section 57, Act V of 1908.‑In the said Code, section 57 shall be omitted.

  3. Substitution of section 58; Act V of 1908.‑In the said Code, for section 58 the following shall be substituted, namely :‑

"58. Release from detention.‑Every person detained in prison in execu tion of a decree shall be released from such detention, before the expiry of the period of detention, if‑

(a) the amount mentioned in the warrant for the detention is paid to the officer in chargeof the prison ; or

(b) the decree against him is otherwise fully satisfied ; or

(c) the person on whose application he has been detained so requests ;

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

  1. Omission of section 59, Act V of 1908‑In the said Code, section 59 shall be omitted.

  2. Substitution of .section 74, Act V of 1908.‑In the said Code, for section 74 the following shall be substituted, namely :‑‑‑

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

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

  1. Amendment ofsection 100, Act V of 1908.‑In the said Code, in section 100, subsection (2) shall be omitted.

  2. Amendment of section 102, Act V of 1 08.‑In the said Code, in section 102, in clause (b), for the word "two" the word "fifty" shall be substituted.

  3. Amendment ofsection 115, Act V of 1908.‑In the said Code, in section 115, in subsection (1), for the full‑stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely :‑

"Provided that, where a 'person makes an application under this sub section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court.".

  1. Amendment of First Schedule, Act V of 1908.‑In the said Code, in the First Schedule,‑ .

(a) in Order IX;

(i) in rule 9, after sub‑rule (2), the following new sub‑rule shall be added, namely

"(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub‑rule (1).";

(ii) rule 13 shall be re‑numbered as sub‑rule (1) of that rule and, after sub‑rule (1) re‑numbered as aforesaid, the following new sub‑rule shall be added, namely :‑‑

"(2) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to application under sub‑rule (1)." ;

(b) in Order XXXVII, in rule 3, after sub‑rule (2), the following new sub. rule shall be added, namely :‑

"(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub‑rule k1)" ; and

(c) in Order XLIII, after rule 2, the following rules shall be added, namely :‑

*"3. Notice before presentation of appeal.‑.(I)*Where an appeal against an, order is preferred during the pendency of a suit. the appellant shall, before presenting the appeal, give notice of such appeal to the respondent or his Advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against and obtain an acknowledge ment of receipt thereof fox the information of the appellate Court.

(2) On receipt of notice referred to in sub‑rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine.

  1. Application of rule 3.‑The provisions of rule 3 shall, *mutatis mutandis,*apply to all applications filed before an appellate Court during the pendency of a suit.'.'

15. Appeal to High Court in certain cases.‑Notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972 (XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.

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