Professional Documents
Culture Documents
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reason otherwise orders.
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Application 4. In the application of this Order to appeals the word
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of Order to "defendant" shall be held to include a respondent and the word
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appeals
"suit" an appeal.]
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ORDER XXVIII
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SUITS BY OR AGAINST MILITARY OR NAVAL
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MEN OR AIRMEN
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Officers, 1.(1) Where any officer, soldier, sailor or airman actually
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soldiers, sailors in the service of the 2[Republic] in such capacity is a party to a
or airmen who
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cannot obtain suit, and cannot obtain leave of absence for the purpose of
prosecuting or defending the suit in person, he may authorise
leave may
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authorise any any person to sue or defend in his stead.
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person to sue
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or defend for (2) The authority shall be in writing and shall be signed
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filed in Court.
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sufficient proof that the authority was duly executed, and that
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1
The comma and words ", the Advocate-General" were omitted by section 3 and
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2nd Schedule of the Bangladesh Laws (Revision and Declaration) Act, 1973 (Act No.
VIII of 1973).
2
The word "Republic" was substituted, for the word "State" by section 3 and 2nd
Schedule of the Bangladesh Laws (Revision and Declaration) Act, 1973 (Act No. VIII of
1973).
1908: Act V] Civil Procedure
h.
2. Any person authorised by an officer, soldier, sailor or Person so
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authorised
airman to prosecute or defend a suit in his stead may prosecute may act
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or defend it in person in the same manner as the officer, soldier, personally or
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sailor or airman could do if present; or he may appoint a pleader appoint
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to prosecute or defend the suit on behalf of such officer, soldier, pleader
sailor or airman.
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3. Processes served upon any person authorised by an Service on
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person so
officer, soldier, sailor or airman under rule 1 or upon any authorised, or
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pleader appointed as aforesaid by such person shall be as on his pleader,
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effectual as if they had been served on the party in person. to be good
service
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ORDER XXIX lia
SUITS BY OR AGAINST CORPORATIONS
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verification of
secretary or by any director or other principal officer of the pleading
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may be served-
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carries on business.
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3. The Court may, at any stage of the suit, require the Power to
require
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ORDER XXX
1908: Act V] Civil Procedure
ORDER XXXII
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1. Every suit by a minor shall be instituted in his name by Minor to sue by
a person who in such suit shall be called the next friend of the next friend
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minor.
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2.(1) Where a suit is instituted by or on behalf of a minor Where suit is
without a next friend, the defendant may apply to have the instituted
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plaint taken off the file, with costs to be paid by the pleader or without next
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friend, plaint to
other person by whom it was presented. be taken off the
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file
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(2) Notice of such application shall be given to such
person, and the Court, after hearing his objections (if any), may
make such order in the matter as it thinks fit.
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3.(1) Where the defendant is a minor, the Court, on being Guardian for the
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rule except upon notice to the minor and to any guardian of the
minor appointed or declared by an authority competent in that
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the minor is, and after hearing any objection which may be
urged on behalf of any person served with notice under this sub-
rule.
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Who may act 4.(1) Any person who is of sound mind and has attained
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as next friend majority may act as next friend of a minor or as his guardian
or be
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for the suit:
appointed
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guardian for Provided that the interest of such person is not adverse to
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the suit that of the minor and that he is not, in the case of a next friend,
a defendant, or, in the case of a guardian for the suit, a
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plaintiff.
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(2) Where a minor has a guardian appointed or declared
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by competent authority, no person other than such guardian
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shall act as the next friend of the minor or be appointed his
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guardian for the suit unless the Court considers for reasons to
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be recorded, that it is for the minor's welfare that another
person be permitted to act or be appointed, as the case may be.
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(3) No person shall without his consent be appointed
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as guardian for the suit, the Court may appoint any of its
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n of minor by other than an application under rule 10, sub-rule (2), shall be
next friend or
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6.(1) A next friend or guardian for the suit shall not, Receipt by
without the leave of the Court, receive any money or other next friend or
movable property on behalf of a minor either− guardian for
the suit of
(a) by way of compromise before decree or order, or property under
decree for
(b) under a decree or order in favour of the minor.
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minor
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(2) Where the next friend or guardian for the suit has not
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been appointed or declared by component authority to be
guardian of the property of the minor, or, having been so
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appointed or declared, is under any disability known to the
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Court to receive the money or other movable property, the Court
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shall, if it grants him leave to receive the property, require such
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security and give such directions as will, in its opinion,
sufficiently protect the property from waste and ensure its
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proper application.
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7.(1) No next friend or guardian for the suit shall, without Agreement or
the leave of the Court, expressly recorded in the proceedings, compromise
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enter into any agreement or compromise on behalf of a minor
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with reference to the suit in which he acts as next friend or or guardian for
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guardian. the suit
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shall not retire without first procuring a fit person to be put in next friend
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his place and giving security for the costs already incurred.
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considers, for reasons to be recorded by it, that the guardian
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ought not to be appointed the next friend of the minor, and
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shall thereupon appoint the applicant to be next friend in his
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place upon such terms as to the costs already incurred in the
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suit as it thinks fit.
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Stay of 10.(1) On the retirement, removal or death of the next
proceedings
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friend of a minor, further proceedings shall be stayed until the
on removal,
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etc., of next appointment of a next friend in his place.
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friend
(2) Where the pleader of such minor omits, within a
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reasonable time, to take steps to get a new next friend
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appointed, any person interested in the minor or in the matter
in issue may apply to the Court for the appointment of one,
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and the Court, may appoint such person as it thinks fit.
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Retirement, 11.(1) Where the guardian for the suit desires to require
removal or
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guardian for
the suit or may remove him, and may make such order as to costs as it
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thinks fit.
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plaintiff or
applicant on application.
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attaining
(2) Where he elects to proceed with the suit or
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(5) Any application under this rule may be made ex parte:
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but no order discharging a next friend and permitting a minor
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plaintiff to proceed in his own name shall be made without
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notice to the next friend.
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13.(1) Where a minor co-plaintiff on attaining majority Where minor
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desires to repudiate the suit, he shall apply to have his name co-plaintiff
attaining
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struck out as co-plaintiff; and the Court, if it finds that he is not majority
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a necessary party, shall dismiss him from the suit on such terms desires to
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as to costs or otherwise as it thinks fit. repudiate suit
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(2) Notice of the application shall be served on the next
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friend, on any co-plaintiff and on the defendant.
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(3) The costs of all parties of such application, and of all or
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any proceedings theretofore had in the suit, shall be paid by such
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plaintiff, apply that a suit instituted in his name by his next or improper
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suit
friend be dismissed on the ground that it was unreasonable or
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improper.
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order the next friend to pay the costs of all parties in respect of
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unsound mind and to persons who though not so adjudged are unsound
found by the Court on inquiry, by reason of unsoundness of mind
mind or mental infirmity, to be incapable of protecting their
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interests when suing or being sued.
308 Civil Procedure [1908: Act V
h.
law for the time being in force relating to suits by or against
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minors or by or against lunatics or other persons of unsound
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mind.
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ORDER XXXIII
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SUITS BY PAUPERS
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Suits may be 1. Subject to the following provisions, any suit may be
instituted in
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instituted by a pauper.
forma
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pauperis
Explanation.−A person is a "pauper" when he is not
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possessed of sufficient means to enable him to pay the fee
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prescribed by law for the plaint in such suit, or, where no such
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fee is prescribed, when he is not entitled to property worth
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[five thousand Taka] other than his necessary wearing-apparel
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pleadings.
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1
The words "five thousand Taka" were substituted, for the words "one hundred
Taka" by section 5 of the Code of Civil Procedure (Amendment) Act, 2006 (Act No. VIII
of 2006).
1908: Act V] Civil Procedure
presented, the Court may, if it thinks fit, examine the applicant, of applicant
or his agent when the applicant is allowed to appear by agent,
regarding the merits of the claim and the property of the
applicant.
(2) Where the application is presented by an agent, the If presented by
agent, Court
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Court may, if it thinks fit, order that the applicant be examined
may order
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by a commission in the manner in which the examination of an
applicant to be
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absent witness may be taken. examined by
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commission
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5. The Court shall reject an application for permission to Rejection of
sue as a pauper− application
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(a) where it is not framed and presented in the manner
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prescribed by rules 2 and 3, or
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(b) where the applicant is not a pauper, or
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(c) where he has, within two months next before the
presentation of the application, disposed of any property
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fraudulently or in order to be able to apply for permission
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to sue as a pauper, or
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(d) where his allegations do not show a cause of action, or
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matter.
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day (of which at least ten days' clear notice shall be given to the evidence of
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applicant's
opposite party and the Government pleader) for receiving such pauperism
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thereof.
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convenient, the Court shall examine the witnesses (if any) hearing
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evidence.
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(2) The Court shall also hear any argument which the
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furnishing of a certificate by the plaintiff from a local
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government representative or its authorized official to the
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effect that the plaintiff is a pauper within the meaning of rule 1
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of Order XXXIII of the Code, it is satisfied to believe that the
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plaintiff is really a pauper.]
Procedure if
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8. Where the application is granted, it shall be numbered
application
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and registered, and shall be deemed the plaint in the suit, and
admitted
the suit shall proceed in all other respects as a suit instituted in
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the ordinary manner, except that the plaintiff shall not be liable
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to pay any court-fee (other than fees payable for service of
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process) in respect of any petition, appointment of a pleader or
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other proceeding connected with the suit.
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Dispaupering 9. The Court may, on the application of the defendant, or
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of the Government pleader, of which seven days' clear notice
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be dispaupered−
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(b) if it appears that his means are such that he ought not to
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Costs where 10. Where the plaintiff succeeds in the suit, the Court
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from any party ordered by the decree to pay the same, and
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.
.
1
Rule 7A was inserted by section 5 of the Code of Civil Procedure (Amendment)
Act, 2006 (Act No. VIII of 2006).
1908: Act V] Civil Procedure
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such service, or
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(b) because the plaintiff does not appear when the suit is
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called on for hearing,
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the Court shall order the plaintiff or any person added as a co-
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plaintiff to the suit, to pay the court-fees which would have been
paid by the plaintiff if he had not been permitted to sue as a
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pauper.
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1
[11A. Where the suit abates by reason of the death of the Procedure
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plaintiff or of any person added as a co-plaintiff the Court shall where pauper
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suit abates
order that the amount of court-fees which would have been paid
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by the plaintiff if he had not been permitted to sue as a pauper
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shall be recoverable by the Government from the estate of the
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deceased plaintiff.]
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12. The Government shall have the right at any time to Government
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apply to the Court to make an order for the payment of court- may apply for
payment of
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13. All matters arising between the Government and any Government to
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party to the suit under rule 10, rule 11, rule 11A or rule 12 shall be deemed a
party
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14. Where an order is made under rule 10, rule 11 or rule Recovery of
11A the Court shall forthwith cause a copy of the decree or amount of
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court-fees
order to be forwarded to the Collector, who may, without
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applicant to
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nature by him in respect of the same right to sue; but the sue as pauper
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.
manner in respect of such right, provided that he first pays the subsequent
application of costs (if any) incurred by the Government and by the opposite
1
Rule 11A was inserted by section 2 of the Code of Civil Procedure (Amendment)
Act, 1942 (Act No. XXIV of 1942).
312 Civil Procedure [1908: Act V
like nature party in opposing his application for leave to sue as a pauper.
Costs 16. The costs of an application for permission to sue as a
pauper and of an inquiry into pauperism shall be costs in the
suit.
ORDER XXXIV
h.
SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY
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Parties to 1. Subject to the provisions of this Code, all persons
suits for having an interest either in the mortgage-security or in the right
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foreclosure of redemption shall be joined as parties to any suit relating to
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sale and
redemption
the mortgage.
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Explanation.- A puisne mortgage may sue for foreclosure
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or for sale without making the prior mortgagee a party to the
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suit; and a prior mortgagee need not be joined in a suit to
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redeem a subsequent mortgage.
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Preliminary 2.(1) In a suit for foreclosure, if the plaintiff succeeds, the
decree in
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Court shall pass a preliminary decree -
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suit (a) ordering that an account be taken of what was due to the
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plaintiff at the date of such decree for-
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(c) directing−
(i) that, if the defendant pays into Court the amount so
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