The Portuguese Code of Civil Procedure, 1939

PORTUGUESE CODE OF CIVIL PROCEDURE, 1939

Official Translation with notes

First Edition January, 2019 © Government of Goa Price: Rs. Published by Government of Goa Printed by Govt. Ptg. Press, Government of Goa, Mahatma Gandhi Road, Panaji - Goa – 403001 Email : dir-gpps.goa@nic.in Website : www.goaprintingpress.gov.in Tel. No. : 918322426491 Fax : 918322436837

GENERAL CONTENTS Contents Page No.

of Civil Procedure, 1939.................. ix

th May 1939)............... xi

th

September, 1939 .................. xiii

th

October, 1940 .................. xvii

Code of Civil Procedure, 1939 and Civil Procedure Code, 1908.................. xci

iii

iv

INTRODUCTORY NOTE The Portuguese Code of Civil Procedure, 1939, covers a wide range of topics which are procedural and more. True to the Civil Codification system it also has the pattern of defining a concept and then expounding the rules regulating it. •The Portuguese Code of Civil Procedure, 1939, initially survived by virtue of Section 5(1) of the Goa, Daman and Diu Administration Act, 1962. Thereafter, the Code of Civil Procedure of 1908 was extended to Goa by the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration Act) Act, 1940 (Official Gazette, Series I, No. 9, dated 02/06/1966) of which Section 4 (1) provided: “4 (1). So much, of any law in force in Goa, Daman and Diu as corresponds to the Civil P. C. of 1908 shall stand repealed as from the coming into, force of this Act in Goa, Daman and Diu. Provided that the repeal shall not affect -

1. (a) the previous operation of any law so repealed or anything duly done or suffered thereunder, or
2. (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or
3. (c) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation or liability as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if this Act had not been passed. Provided further that, subject to the preceding proviso notifications published, declarations and rules made, places appointed, agreements filed, awards made or filed, scales prescribed, forms framed, appointments made and powers conferred under any law so repealed shall, so far as they are consistent with the said Code or as the case may be, the said Act have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under the said Code or the said Act and by the authority empowered thereby in such behalf. v

1. (2) In every law or notification passed or issued before the commencement of this Act in which reference is made to or to any Chapter or Section or provision of any law hereby repealed, such reference shall, so far as may be practicable, be taken to be made to the said Code, or, as the case may be, to the said Act, or its corresponding part, order, section or rule". •Sub-section (1) of Section 1 provided that the Act shall come into force on such date as the Central Government may by notification in the official Gazette appoint. Accordingly, by notification No. S.O. 1597 dated May 24, 1966 published in the Gazette of India, dated June 10, 1966, the Central Government appointed the 15 th June, 1966 as the date on and from which the Civil P. C., 1908 and the Arbitration Act, 1940 came into force in the territory of Goa, Daman and Diu. It is needless to point out that once the Civil P. C., 1908 and the Arbitration Act, 1940 came into force as from 15th June, 1966 all suits and executions were filed under the Civil P. C., 1908 with the result that the Portuguese Code of Civil Procedure, corresponding to the provisions of the Indian Civil P. C. stood repealed. •Some of the matters in which the Portuguese Code of Civil Procedure, 1939 remained in force are the following:- 1.Inventory Proceedings – Articles 1369 – 1447, now incorporated in the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. 2.Children and Spouses – Articles 1452 – 1470 3.Division and Separation by mutual consent – Divorce by mutual consent – Articles 1471 – 1474 4.Consent through Court – Articles 1477 – 1479 5.Council of family and guardianship – Articles 1490 – 1499 6.Verification of pregnancy – Articles1500 – 1501 7.Assets of Absentee – Articles 1502 – 1506 8.Notice of preemption – Articles 1511 – 1518 9.Estate in abeyance – Articles 1519 – 1522

Articles 1523 – 1530 vi

Article 45 - Need for an executable document - Any execution shall be founded on a title

document by which the purpose and limits of the execution are decided. The execution may be for payment of specified amount, or delivery of a certain thing, or performance of a fact. •Articles 811, 928, 933 of this Code. •Articles 45 - 61 – Execution - Corresponding provisions in C.P.C. 1908: - oExecution - Ss. 36-74 Article 46 - Kinds of executable documents – The following documents may be the basis for execution:

1. (l) Judgments granting mandatory relief; like delivery of something, doing or abstaining from doing something based on a right.

1. (2) Records of conciliation proceedings;
2. (3) Public deeds;
3. (4) Bills of exchange, promissory notes, cheques, invoices, money orders, counterfoils and any other private documents Signed by the debtor evidencing the liability of payment of specified amount.
4. (5) Title deeds which by special law makes them executable. Article 47 - Requirement for execution of judgement - In order that the judgment becomes executable, it is necessary that it becomes res-judicata or that appeal is admitted without stay of operation of the judgment. § Sole Paragraph: The execution initiated pending the appeal comes to an end or stands modified in accordance with the final judgment proved by certified copy. While the appeal from the judgment is pending the executor or any creditor may not be paid without furnishing security. Article 48 - Execution of Orders – From the point of view of executory force, orders and any other decisions or acts of a judicial authority directing the payment of certain amount or doing of certain act or fulfilment of any obligation are equated to a final judgment. Article 49 - Execution of arbitration awards - The decisions passed by an arbitral tribunal are executable in the same manner as decisions of the civil courts. •Article 1574 of this Code. Article 50 - Execution of Foreign Judgement - Decisions passed by courts or arbitrators in a foreign country may be used as basis for execution only after revision and confirmation by the High Court. § Sole Paragraph: The title deeds drawn in foreign country do not require confirmation for the purposes of execution. Article 51 - Execution of public deeds - Public deeds are executable when they are the instrument constituting any obligation. § Sole Paragraph: The public deed of opening of a credit, contract of delivery of goods and any other document in which future installments are stipulated may serve as the basis of execution, provided it can be shown by a document issued in accordance with the said instrument or having probative force in accordance with the law that, in pursuance of the contract, money was advanced, a supply was made or an installment was paid. Article 52 - Executability of negotiable instrument and private writings - The signature of the debtor on the bills of exchange, promissory notes, cheques and other private writings, excepting an invoice, must be identified by the notary. However, if the amount of the debt does not exceed 10,000$ (ten thousand escudos) simple identification on the basis of comparison of the signature is sufficient; where the amount is more than 10000$ (ten thousand escudos), it is necessary that the notary certifies, that the signature was made in his presence and recognizes the identity of the signatory. Article 53 - Cumulation of executions - As against same debtor, the creditor may join together executions founded on different documents, irrespective of their value, except:- 1.Where the competent court for all the executions is not the same; 2.Where the execution are for different purposes; 3.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 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”)

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.

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.

BOOK II JURISDICTION AND PREVENTION OF BIAS (Articles 62 – 137)

BOOK II JURISDICTION AND PREVENTION OF BIAS

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: - oJurisdiction 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.

Article 65 - Requisites for international jurisdiction - The circumstances on which the international jurisdiction of the Portuguese courts depends are as follows:

1. (a) The action is to be instituted in Portugal following the rules of territorial competence provided by the Portuguese law;
2. (b) The act or fact from which the action emerges has been done within the Portuguese territory;
3. (c) It is intended to protect any Portuguese citizen, on the principle of reciprocity;
4. (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

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.

•Note : Judicial Divisions or “Comarcas” under the erstwhile High Court of Goa were as follows:- Judicial Division Head QuartersTerritorial Area

Ilhas of GoaPanjim 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. BardezMapusaBardez 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. SalceteMargaoSalcete Taluka except the parishes of Paroda, Assolna, Cuncolim and Velim. Bicholim BicholimSanquelim 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. QuepemQuepemQuepem, Sanguem, Canacona Taluka and the parishes of Paroda, Assolna, Cuncolim and Velim, of Salcete Taluka and the island of Angediva. DamanDamanFull 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 MacauTerritory of Macau. TimorCity of DiliTerritory 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 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 :-

1. (a) Of appeals from the courts of judicial division;
2. (b) Actions for compensation and damages against the judges and respective officers of the Public Ministry, in connection with the exercise of their functions
3. (c) From conflicts of competence between the courts of different judicial division of the same district;
4. (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;

1. (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.
2. (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. 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. 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:

1. (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;
2. (b) For the purposes of prevention of a new construction, the court of the place of such construction shall have jurisdiction;
3. (c) The anticipated collection of evidence may be applied for to the court where the evidence has to be taken;
4. (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 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 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.

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:

1. (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;
2. (b) The court of the place where the thing is found, in the event the execution is for the delivery of a specific thing.
3. (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. 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).

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:

1. (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;
2. (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 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.

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 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. 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. § 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 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. § 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:

1. (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;
2. (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.
3. (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.

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 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. 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 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. 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. 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.

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.

BOOK III PROCEEDINGS (Articles 138 – 1560)

BOOK III PROCEEDINGS TITLE I GENERAL PROVISIONS

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

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.

§ 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.

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.

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.

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”. 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.

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

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.

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.

§ 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.

§ 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

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:

1. (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;
2. (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;
3. (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 served in foreign countries within Europe or in the colonies of Guiné, Cabo Verde and S. Tome;
4. (d) Between 30 to 60 days when service of summons is to be effected in Angola;
5. (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:
6. (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;
7. (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;
8. (c) Between 60 days to 4 months when the step is to be taken in any of the colonies of the West Africa;
9. (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; 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. (1) If there is doubt as to the authenticity of the letter of request.
2. (2) If the court lacks competence on merits or hierarchy in relation to the subject of the letter of request.
3. (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:
4. (1) Where the letter has not been legalized;
5. (2) Where the act is contrary to the Portuguese public order;
6. (3) If the execution of the letter threatens sovereignty and security of the State;
7. (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. 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:
8. (1) When act is drawn in ordinary paper.
9. (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.

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:

1. (a) When it is not possible to know what the relief is;
2. (b) When it is not possible to know what the cause of action is;
3. (c) When the relief is in contradiction with cause of action;
4. (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. (1) When the respondent has not been summoned;
2. (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. (3) Where there is an error in the form of procedure and nothing can be saved except the petition in terms of article 199. Article 195 – When the service is taken as not effected - There is lack of service of notice;
4. (1) When the act has been completely omitted;
5. (2) When there is error in the identity of the party notified;
6. (3) When the notice by publication has been wrongly used;
7. (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; (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) 2 nd 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.

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

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.

§ 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: 1.The papers which relate to the commencement of the cause, except where the same is a dependence of another already distributed; 2.Papers coming from another court with the exception of letter of request, warrants, official letter, telegrams, for simple summons, notice or affixation of the publication. § Sole Paragraph: The cases which by law or by order of the court are to be considered dependent on others shall be appended to those on which they are dependent; but an inventory shall not proceed further after the declaration of the head of the family, without being registered in the respective section. Article 212 – Acts which do not depend on distribution – The following documents are not dependent on distribution: sundry notices, the urgent collections, the judicial possessions, the preventive acts and preparatory acts and other urgent steps taken before the commencement of the cause or before the service of summons on the defendant. But if the act admits opposition, the file shall be distributed as soon as the objection is filed except when the main cause has been distributed of which such act is the preparation.

Article 213 – Condition necessary for distribution - No paper shall be admitted for the

distribution without containing all the external requisites prescribed by the law. § Sole Paragraph: If the distributor had doubt in distributing any paper he shall present the same to the judge who presides over the distribution. The latter shall pass the order admitting or refusing such paper. Article 214 – Day and time of allotment – Persons who intervene - The distribution shall be done on Monday and Thursday at 12.00 pm under the supervision of judge of the division or by the court in rotation in the division where there is more than one court. The distributor shall get assistance from the officials of the secretariat designated by the judge. § Sole Paragraph: When Monday and Thursdays are holidays the distribution shall be done on next working day.

Article 215 – Classification and enumeration of papers - The distributor shall make the

classification and number of the papers which are meant for distribution, writing in each of them in words, the type of the class to which it belong and the serial number which corresponds to same, when within the same type there is more than one paper. Article 216 – Drawing of Lots - Once the classification and numbering of the papers has been done, the drawing of lots shall be conducted which shall be made by use of numbered spheres, by putting in one box the numbers corresponding to the papers and in the other box the numbers of the section which are yet to be filled in the respective category and thereafter taking out the spheres, one by one from each box alternatively. § Sole Paragraph: Where the number of the sections to be filled is less than the number of papers to be distributed, firstly lots are to be drawn by sections which are in shortage, and the remaining papers shall be distributed by lots for all the sections. Article 217 – Definite Allotment - When there is a single paper in any category and there is only one section to be filled, the same paper will be numbered and endorsement shall be done with certainty to the one to whom it is to be allotted.

Article 218 – Record of outcome - When the papers have been distributed, the judge would write in full in the register of distribution the number of the paper distributed and the section to which it was allotted; the distributor shall write in the respective paper the number of the section and the date of the distribution.

Article 219 – Signature, publication and registration - After the papers of one type are

distributed, the same procedure is followed for the distribution of other papers of different type. After ending the distribution of all the categories, the judge will sign the docket and distributor shall write the numbers written on the papers. Thereafter the distribution shall be published, in the list affixed at the door of the court with the specification of the section and the name of the parties. The distribution shall be registered in the respective book and the heads of the office shall sign in the book the receipt of the delivery of the papers given to them, without which the responsibility of the distributor for such papers shall subsist. Article 220 – Cancellation of distribution - The distribution shall be declared without effect cancelling the same in the respective book: 1)When there is conflict of interest of the judge. 2)When it is found that before submission of the list of properties, the inventory was of a category different from that in which it was allotted. § 1: When case falls under clause no. 2, if the inventory, is to proceed after carrying out a distribution in the competent category, the acts and steps taken before the distribution which are useful shall be utilized. § 2: Head of the office shall cancel the distribution in subsequent 10 days from the date of occurrence. Article 221 – Correction of distribution - Apart from the case, of number 2 of the preceding article, the distribution shall be rectified cancelling the type in which it was listed first and then changing it to new category where it is found that there is an error or there were supervening circumstances which give rise to alteration; but the file continues in the same section to which it was earlier allotted. § Sole Paragraph: Modifications which the inventory will suffer as to its category after

presentation of the lists of assets or which were noted subsequent to that will give rise neither to cancelation nor rectification of the distribution. Article 222 – Kinds of proceedings in distribution - In the distribution there shall be following categories:

1. (1) Suits of ordinary procedure;
2. (2) Suits of summary procedure;
3. (3) Suits of concise procedure;
4. (4) Special proceedings;
5. (5) Ordinary executions which do not arise from suit instituted in the court;
6. (6) Summary and concise execution proceedings, which do not arise from suits filed in the court;
7. (7) Orphanological Inventories;
8. (8) Inventories amongst majors;
9. (9) Insolvency and Bankruptcy proceedings;
10. (10) Terms of Settlement / Compromise terms or Agreements between parties not depending of proceedings of bankruptcy or insolvency proceedings and extensions granted;
11. (11) Precatory letters, rogatory letters, obstructions to the judicial possession, collections, appeals from registrars / conservators, notaries and other functionaries, objections against reconstruction of books of the registration offices and any other unclassified papers. DIVISION III PROVISIONS RELATING TO SUPERIOR COURTS Article 223 – When distribution should take place – who intervenes - In the High Court and the Supreme Court the papers shall be distributed in the first session following the receipt or presentation of the papers failing which penalty of suspension not exceeding 3 months is leviable. The distribution shall be done with the interventions of the Chief Justice, head of the registry, in the presence of the Judge and officers of the head office as directed by the Chief Justice. § Sole Paragraph: The Chief Justice shall indicate in each month the judge who will take part in the distribution. The head of the registry shall produce before the judge the paper for the purpose of classification, before they are distributed. Article 224 – Categories in High Court - In the High Court there shall be following categories: 1. Appeals from ordinary proceedings and special proceedings; 2. Appeal from summary proceedings and concise proceedings; 3. Appeals from orders; 4. Appeals in criminal matters; 5. Conflicts and revision of judgment of foreign courts; 6. Causes of which High Court takes cognizance in it’s Original jurisdiction. Article 225 – Categories in the Supreme Court - In the Supreme Tribunal of Justice there shall be following categories: 1. Appeals in general; 2. Appeals in which parties are exempted from costs or which enjoy the benefit of judicial assistance; 3. Appeals from orders; 4. Appeals in criminal matters; 5. Conflicts; 6. Appeals from final judgments; 7. Causes in which the Supreme Court takes cognizance at the first and sole instance. (Original jurisdiction of Supreme Court). Article 226 – How distribution is done - In the distribution, the order of the precedence of the judges shall be taken into consideration as if there was only one section. After the proceedings are numbered in each category, they are entered in a box with spheres with numbers corresponding to the files or papers which are yet to be distributed in lower category. The Chief Justice by taking one by one shall read in loud voice the number which is coming out, the head of the registry shall read in loud voice the surname of the judge to whom the proceedings are allotted, as per the order, and will write on front page of the proceeding the same surname of the judge and will make necessary entry to that effect. The same steps will be followed successively in the subsequent categories. § 1: There being in any category only one proceeding for distribution, in the boxes four spheres shall be put with the numbers corresponding to first four judges to fill up in this category and number which comes out shall indicate the judge to whom the proceeding is allotted. § 2: The judge of the turn shall take note of the numbers which are coming out and he shall revise the registration of the distribution which the head of the office will present along with the file after the distribution is over. If he finds that the notings are in accordance with the process of the distribution he will put the date and initial it. Article 227 – Second distribution - If in the act of the distribution it is found that there is an impediment against the judge to whom the proceeding was allotted, soon a second distribution shall be done by the judge of the respective section. The same procedure will follow where the impediment was supervening. The judge to whom the proceeding papers were allotted in the second distribution shall follow the normal course and shall not return it back to the office the proceedings even though the impediment of first judge has ended and he has not given his opinion; but moment the impediment ceases, he will be competent to express his opinion in the proceedings and proceed with normal course after the proceedings had come back to the registry. SUB-SECTION II SUMMONS AND NOTICES DIVISION I GENERAL PROVISIONS Article 228 – Purpose of summons and of notice - The service of summons is an act by which the defendant is informed that a suit has been instituted against him and is called upon to defend himself. By similarity the same procedure is followed to call upon for the first time any interested person in cause. Service by notice is meant to, in any other cases, call upon a party to the court or to give him knowledge of any act or any fact. •Articles 228-263 - Summons and notices - Corresponding provisions in C.P.C. 1908: - oIssue and service of summons - Ss. 27-32 – O.V. Article 229 – Need for prior orders - The service of summons and sundry notice shall not be effected, without prior order of the judge. The notice in relation to pending suit is to be considered as a necessary consequence of the order which fixes date for performance of any act or any step in which specific persons should appear before the court or for which the parties have right to remain present; also notice should be served, independent of any express order of all the judgments and orders of which the law directs notice and those which may be adverse to the parties.

stipulation, the principle of reciprocity follows. Article 231 – Bar on summoning on certain days - Nobody should be summoned or no notice to be given on the day of marriage, on the day of the death of the spouse, father, mother or son, even during subsequent eight days. In the event of the death of any other ascendant or descendent, brother or a keen in the same degrees in which the parents have been mentioned in this article, the prohibition includes day of death and subsequent three days. Article 232 – Need for witnesses - If the person who has been summoned or notice is issued does not want to sign, does not know to sign or is physically unable to sign, two witnesses shall intervene; the same shall be followed when the bailiff does not know the person who was served and the letter does not produce identity card. Witnesses shall sign the certificate if they know to sign. DIVISION II SERVICE OF SUMMONS Article 233 – On whom summons is to be served - The service of summons is to be made on the defendant personally. It may be made on different person when the law expressly permits or when the defendant had appointed an attorney giving powers to receive the summons. The incapable, the uncertain, the collective bodies and inheritances shall be summoned through

their representatives. Wherever the representation may be made by more than one person, it is sufficient that service be made in any one of them. Article 234 – Where should summons be served - The service of summons may be effected at any place where the person to be summoned is found, but with care and discretion necessary to avoid unnecessary vexation. Nobody may be served within places of worship or while busy in any act of the public service which is not to be interrupted. The representatives of collective bodies shall be summoned at the house or place of their residence, when situated within the area of the administrative division where the suit is filed or where head office of the collective body is located. In any other case they shall be summoned in the head office of the body, if the competent representative is present or any other employee; same procedure will be adopted when after finding that they are not found at residence, or no entry of the official was permitted whichever may be the circumstances. The service made in person of the employee or the circumstances, as above, has the same effect of service of summons on the person of the representative. Article 235 – Service in case of resistance to the entry of the official in the house of the party

• • If the Bailiff having come to the residence of the party to be served finds resistance, which he cannot overcome even by using violence, shall effect service on any other person who is the occupant of the house preferring always relatives of the person to be summoned, even if he is informed that he is absent. When none of the persons at the house is ready to receive the summon, the same shall be effected on the neighbour. If there are no neighbours or if they refuse to accept and transmit the service to the person concerned, they shall affix the notice at the door of the house of the person to be served in the presence of two witnesses, with one note with all the particulars to know what is the purpose of the summons, day on which it took place, the time during which the person summoned should present his defence and the consequences of default in submitted of the defence. In the note it will be further declared that duplicate is available in the registry to enable the person served to collect the copy at the office of the court with all particulars if there is only distribution. The note shall be signed by the bailiff and by witnesses if they know to sign. § 1: The summons effected as per this article shall have same effect of summons served on the defendant himself. § 2: The persons of the house or neighbours, who do not permit the entry for the service of summons or having received it is established that they did not hand over the duplicate to the person to be summoned shall incur penalty for offence of disobedience and when, after having received the papers, failed to deliver it to the concerned party. In case the notice is served on a neighbour who is unable to meet the person concerned, it is sufficient compliance on his part, if he hands over a copy to any person of the house who shall deliver the same to the person to be served. Article 236 – Summons where the party is unable to receive it - When the official is unable to effect the service because the defendant suffers from dementia or any other grave reason unable to receive the summons, he shall issue the certificate to that effect. Notice of the same shall be given without any prior order of the court immediately to the plaintiff who will take appropriate steps or insist that personal service be made, depending upon the exact information of the official. When the plaintiff insists on personal service, the judge shall decide whether the service should be made as prayed after collecting the information and after giving the evidence which is found necessary. § 1: If it is impossible, on account of dementia, the cause is found justified on the basis of certificate issued by Director of the establishment where a person was interned. If he is not interned, certificate from two specialists in Psychiatry or proof of dementia by way of examination of 3 credible witnesses. § 2: In the event the impossibility is arising from other cause of permanent character, like deaf - dumbness, paralysis, blindness, the justification shall be made equally by way of evidence of the witnesses of recognised probity up to 3 in number or production of certificate issued by two doctors. § 3: If the impossibility consists in serious and acute sickness, involving risk of life of the person to be summoned, the proof may be by a certificate issued by the physician treating the person or by the evidence of the witnesses of recognised probity. § 4: Once the impossibility is established, a curator shall be appointed for the protection of the person to be summoned, with the preference of person appointed as curator as per clauses no. 1, 2 and 3 of article 320 of the Civil Code. Such appointment is restricted to the suit in question and without any other effects. The service shall be made on the person of the curator. In the event it is found that in the case foreseen in paragraph 3, after service of summons, the proceedings shall he stayed till the person to be summoned improves; such suspension shall not last for more than 60 days. If in the meantime the defendant expires, the suspension shall last until the heirs are brought on record. When the curator does not contest, what is provided in article 15 shall be observed. Article 237 – Absence of party to be summoned at uncertain place - Where the official, upon the permission to enter in the residence of the person to be summoned, certifies that he is not at home and he is informed that he is out of the locality, but at a specific place, he will try to obtain the precise indication of his whereabouts and the probable time of his absence of all the details a report shall be prepared and shall be signed by the person who furnishes the information. § 1: The registry, without need from any order from the court, shall immediately communicate the record and details to the plaintiffs, who shall apply for service of summons at the place indicated, if he does not like wait for the return of the defendants. § 2: If the person to be summoned is not found in the place indicated, what is provided in the article 235 shall be observed. There being the ground to hold that the information supplied is malicious, the person who gave the information shall be subject to the penalty of giving false information to the public authority. Article 238 – False address – House closed and uninhabited - If the official tries to find the person to be summoned as per the information obtained about his residence and he is informed that he never stayed at that place or that he does not reside at such place, information shall be collected in respect of residence of the person to be summoned. Record shall be made of all the above and signed by the persons from whom the first information was obtained. If the official finds that the house is closed and with all the indication that it is not has been occupied, record shall be made to that effect and whatever information is obtained shall be inserted in that report. In either case immediate information will be given to the plaintiff in order that the plaintiff takes adequate steps. § Sole Paragraph: If in the case foreseen in the first paragraph of this article it is found that the person to be summoned is residing at the place initially indicated, the person who gave the false information shall be subject to be prosecuted as per paragraph 2 of the article 237. Article 239 – Absence of person to be summoned at uncertain place - If the official does not find the person to be summoned at his last known residence and he is informed there that he is absent from the locality at an unknown place, he shall record such information which will also be signed by the person giving such information.

When the plaintiff has not indicated that the defendant as resident at an uncertain place,

information of the report shall be immediately given to him in order to take appropriate steps. § 1: Service by publication shall not be done unless proper inquiry is made by the judge by all means at his disposal that the residence of the person to be summoned is not known, information being always obtained from the parish priest and of village administration official of the respective place. § 2: What is provided in second part of paragraph 2 of article 237 shall be followed in the present case. Article 240 – Service at fixed time - If the official does not find the person to be summoned and there is no case as foreseen in articles 235 to 239, he shall give the indication of a specific time for the first working day to any person in his house with preference to the relatives. On the day and hour indicated above he shall effect the service if the defendant is found; and if not service shall be effected on the person to whom the time was given and if even he is not found on in any other person of the house, with preference to the relatives. When none of the persons of the house offer to receive the summons, what is provided in the second and third clause of article 235 and paragraphs 1 and 2 of article 235 shall be followed. In the event on the day and time already indicated it is found that the house is closed and not habitated, a notice will be pasted on the door with the note as provided in article 235, and by this method a service of summons shall be deemed as made in the person to be summoned.

Article 241 – Mode of service if there is evasion - If it is not possible to effect service of

summons on the defendant in the manner indicated in the previous articles and there is a ground

to believe after two unsuccessful attempts made, that he is avoiding service of summons, the court official shall go accompanied by the representative of a public authority or police force and serve the defendant at any place he is found. The report signed by the said official and by the authority shall constitute full proof of the service. § Sole Paragraph: In the case foreseen in this article, the court official and the agent of the administrative authority have the liberty to enter into the house to effect the service, on the same terms as the Code of Criminal Procedure permits execution of warrants and it will be so declared in the writ of service of summons. Such warrant is executable in whole territory of the republic with the approval of the local judge when it is necessary to enforce the order outside jurisdiction of the judge who signs it. Article 242 – Formalities for service on person - Where the service of summons has been made in the person of the defendant, the official shall deliver to the defendant the duplicate of the plaint and will inform him the time limit within which he has to give his defence explaining the effects of non contest. In the duplicate a note is made of the date of service, time given for filing defence, the consequences and the court in which the suit is pending, if allotment has already been done. Of all this report shall be made and signed by the defendant. § Sole Paragraph: If the defendant refuses to receive the duplicate, the official of the justice shall state so in presence of two witnesses and that the copy is available in the registry. In the report, specific mention shall be made of this event. •There could be certain cases in which delivery of the duplicate to the summoned person does not arise like summons for pre-trial conciliation, summons for inventory (Art.1375) and summons to the spouse and creditors for execution (Art.864). In such cases however the note mentioned in this article shall be handed over and the notings there in shall be according to the purpose to which they are meant. Article 243 – Formalities for service on a person other than the person summoned - When the service of summons has been made on a person different from the defendant, the official shall hand over to such person the duplicate with the note mentioned in previous article and shall cast obligation on such person to convey it to the addressee and that for all purposes he is deemed as served for the purpose of the action as shown in the duplicate. The report shall be signed by the said person. § 1: The person who has received the summons is bound to perform his duty failing which he

shall incur in the liability foreseen in paragraph 2 of article 235. § 2: In the case foreseen in this article, as well as in the cases where the service is deemed as made by simple affixation of the note at the residence of the person summoned, the official shall send to the defendant a registered letter, with acknowledgment due in which he gives notice of the date of summons, in the manner in which it is done and indicating the time limit within which he may defend and the respective consequence in the case of default and what he is to do with the duplicate. When the service is done on a person, identification of that person shall be done. Article 244 – Service on person residing abroad - When the defendant resides in a foreign country, whatever has been stipulated in the treaties or international conventions shall be followed. In the absence of the stipulation, the service of summons shall be made by postal service by registered letter with acknowledgment due, with the remittance of respective duplicate. In the letter it will be declared that the addressee is summoned for the purpose of the suit as referred to the duplicate with the precise indication of the court where the suit is pending and time up to which the defence can be filed and what are the consequences in the case of default; also mention shall be made of the section of the court, if allotment has already been done. Service is deemed as effected on the date when acknowledgment due is signed which will be annexed to the file. § 1: The notice shall be signed by the person summoned or by the postal employee as provided in the postal regulations. § 2: Whatever is provided in this article shall be observed when the locality where the defendant resides is known even though the road and police number of his residence, is not known. Article 245 – Service of defendant taken as residing abroad when the letter is returned - In the event the letter is returned without any indication or with the indication that addressee is not known or is unknown or is whereabouts are not known, the office immediately will bring this fact to the knowledge of the plaintiff irrespective of any order. If a defendant is a Portuguese subject the plaintiff may apply for service through the nearest Portuguese consulate; if he is a foreigner and if there is no Portuguese consulate and a distance is not more than 50 kilometers, the service may be sought by way of rogatory letter. Instead, the plaintiff may apply for service by publication and declaring whether the defendant

has had residence in the continent or adjacent islands and in the affirmative, in which place. In such case the judge shall make efforts to inquire through the Parish Priest or the Village Official whether the residence of the person to be served is known and shall order service through publication if the information is received that he is at uncertain part. § 1: If the last residence is in different judicial division or sub division, information will be solicited from the other judge so that information is transmitted by the other judge. § 2: What is provided in paragraph 1 shall apply equally in the event the acknowledgement due is not returned or the postal receipt is returned without signature. § 3: If the plaintiff has made a false declaration, he shall be incurring the penalty of paragraph 2 of article 237. Article 246 – Summons through Consulate - The service of summons through the consulate shall be solicited by the court by request letter accompanied by the duplicate. In the letter request shall be made for delivery of duplicate to the person to be summoned and with the writing that the duplicate is to be delivered to the person to be summoned. § l: The costs incurred towards the service and which are indicated by the consulate shall be included in the costs. § 2: If the consulate gives information that the person to be summoned is unknown or is in uncertain part immediately service will be made by publication of the summons in the newspapers. Article 247 – Summons by publication - The service by way of publication is to be done not only when the person to be summoned is at an uncertain place in accordance with previous provisions, but also even when the persons to be summoned are uncertain.

Article 248 – Form of service by publication for uncertainty of place - The service by

publication on account of uncertainty of place shall be done by affixation of the notices and by publication in the newspapers. The notices shall be affixed one at the door of the court, other at the last residence of the defendant in the country and third one at the door of the house of the local administrative authority of the respective parish.

The notices shall be published in two consecutive issues in the most widely read newspaper of the place where last residence of the persons to be summoned was found; if there is no newspaper it shall be published in two issues of the most widely read newspaper of the judicial division; to which his residence belongs, if even there is no newspaper, in two issues of the newspaper most widely read in its respective administrative district, and if also there is no paper available in the district of the publication will be done, 2 issues in one of the most widely read newspapers of Lisbon. § Sole Paragraph: In the inventories of orphan’s jurisdiction and in the concise proceedings there will only be affixation of the notices. Article 249 – Contents of the notices - In the notices for publication, as far as possible, the details of the action are to be given such as for which purpose the absentee has been summoned, indicating who has instituted the case and in substance what is the relief sought by the petitioner; besides also the court where the file is pending will be mentioned and the respective section of the court if there has been distribution, extension of period, time period for the defence and the consequences of the default in case of absence of defence and adding thereafter the time expires not only fixed in the case but also necessary extension starting from publication of last announcement. The announcement shall reproduce the text of the notices. § Sole Paragraph: The extended period shall vary between 30 days to 6 months. Article 250 – How the time for defence is counted in case of service by publication - The notice is deemed as served on the day when the last publication is done. From this date the period of extension is to be added. This addition shall be done to the statutory period and only from the end of the extended period, the defence is required to be submitted. Article 251 – Form of service by publication due to uncertainty of person - The service by publication on account of uncertainty of the person shall be done in accordance with the articles 248 to 250, with the following modifications: 1. Only one notice will be affixed on the door of the court, except where the uncertain parties are called upon as heirs or representatives of the deceased person, because in such case, besides the notice affixed at the door of the court, in addition one more notice is to be affixed at the residence

of the deceased and other at the door of the house of the administrative authority of the respective parish, if they are known and in the country; 2. The announcement shall be made by publication in the newspaper widely read in the seat of the judicial division; 3. The extended period shall not be lesser than 30 days nor more than 60 days. Article 252 – Filing of the notice and publication in the record - One copy of the publication shall be annexed to the file, in which the bailiff shall declare the dates and the places where the affixation has been done; the affixation shall be done in one sheet of paper, which is also required to be annexed to the file, and the announcement made respectively and extracted from the newspaper, indicating the title and dates of the publication. Article 253 – Retroactive effect of service delayed for no fault of Petitioner – In respect of interruption of the prescription, the effect of the service of notice, delayed for no reason not attributable to the petitioner operates retroactively to the dates when the suit was instituted. •The provisions of this article are meant to avoid that the defendant takes advantage of any devices or efforts tending to delay the service or that the plaintiff suffers prejudice as a result of delay in service of summons, when this delay is not due to his fault. •In view of Art.552(2) of the Civil Code and Art.485(a) of the Civil Procedure Code interruption of prescription takes place only from the time when the defendant is summoned; it is not sufficient for this purpose that the suit has been filed that is that the respective plaint has been received in the office (Art.267) Suppose a debt is incurred subject to prescription of one year under Art.539 of the Civil Code; when there are only two days to complete the period of prescription the creditor

presented in the office the plaint for the suit meant to recover the debt and applied for immediate service on the debtor; but

the latter came to be summoned only after 3, 4 or 5 days. Should the prescription be considered as interrupted or not? •As prescription is interrupted only by the act of summoning and this has taken place after the expiry of the time fixed byArt.539 of the Civil Code it appears that the debt should be considered as prescribed. This would indeed infact happen if the provision of Art.253 were not there. •By virtue of this article we have to distinguish; (a)Either the delay in service of summon that is the fact that the defendant is summoned after 3, 4, 5 days instead of being summoned immediately, is due to the reason attributable to the plaintiff; (b)Or it is due to the cause attributable to the defendant (he sought to delay service by absenting himself) or to the court office (it was negligent in complying with the order) or to the judge (he was not quick in ordering the summons); (c)Or it is not attributable to any person and results from circumstances in the nature of force major, of any fortuitous cir- cumstances or genuine impediment. •In the 1 st case the debt prescribes because the normal effect of Art.552(2) of the Civil Code, Art.485(a) of the Civil Procedure Code and the rule contained in the 3 rd portion of Art.267 applies. •The suit was filed before the period of prescription was completed; but since the act of the proposition does not produce

effect in relation to the defendant except from the time of service of summons and this was done after expiry of the period of prescription in other words as the prescription was not interrupted by the factum of the filing of the suit and the act which would interrupt it, namely the service of summons, was done after expiry of one year the prescription is extinguished. •In the 2 nd and 3 rd case the prescription gets interrupted in view of the article of 253. •The circumstance that the summons has been delayed by virtue of the fact not attributable to the plaintiff results that the effect attributed to the summons by Art.552(2) of the Civil Code and by Art.485(a) of the Code of Civil Procedure has retroactive effect to the date of the filing of the suit that is to say in this case the prescription is considered to be interrupted not on the date of service but on the date in which the plaint was presented and received in the office. DIVISION III NOTICES Article 254 – Notice to parties when they have appointed attorneys - Notices to parties in pending proceeding shall always be done on the person of their agent with office in the seat of the court. The agents shall be notified by the registered letter with acknowledgement due addressed to the respective office. When the notice is to call the party for the performance any act in person act or to give the notice of the accounts, besides the agent also notice shall be issued through post to the party. The case of article 258 stands excepted from this category. § Sole Paragraph: The notice issued does not cease to produce effects on account of papers being returned or on account of non signature in the acknowledgement due, once the remittance has been addressed to the office. Any of such cases, the acknowledgement due as well as the envelope shall be annexed and notice is considered effected on the day subsequent to the registration of the letter. Article 255 – Notice to parties when they have chosen domicile - If the party has not appointed an agent with the office in the seat of the court, but has chosen domicile for the purposes of receiving notices, service will be made through the post in terms of preceding article. When the party has not appointed agent nor chosen domicile at the seat of the court, no notification shall be issued and orders and judgments passed are deemed as published as soon as the proceedings has the entry in the registry and as soon as the application with the order passed thereon has been annexed to the file.

§ Sole Paragraph: What is provided in the second part of this article is not applicable if the notice has the purpose to call the party to the court for doing the act in person or the law requires expressly his personal appearance. In such cases in the absence of agent or lack of choosing the domicile, the party has to be notified personally.

Article 256 – Personal notification - If a party has to be notified personally the provisions

relating to service of summons shall apply. Article 257 – Sundry notices and notices to non parties - The sundry notices and those which are intended to call to the court, witnesses, experts and other persons with occasional intervention in the case shall be served personally on those to whom the notices are to be served. Whenever there is no possibility of effecting the service and there is a case foreseen in article 241, the provision as contained in said article shall apply. In summary proceedings, concise proceedings and in the inventories under orphans jurisdiction, the notices shall be served by registered letter with Acknowledgement due card when the persons to be served reside within area of the respective court. The Acknowledgement due card shall be handed over to the addressee and he should sign the receipt which accompanies the notice. The receipt shall be returned to the court when signed. If the addressee does not sign the employee of the court shall declare in the receipt that he has handed over the receipt to the parties. When there is no possibility of delivery of the notice, the notice shall be done by ordinary manner. •There is a procedure to be adopted as per the Decree law no. 30384 dated 13-4-1940 dealing with manner of service by post.

Article 258 – Notice to public servants or employees of public enterprises - The notice

intended to call to the court any public servant or employee of public enterprise, whose appearance depends on the permission of the hierarchized superior shall be done with necessary anticipation by way of requisition sent to his superior. The hierarchical superior shall take necessary steps to see that the requisition is complied with. When for urgent necessity of public service it is not possible to permit the notified person to appear, the superior shall inform the court with due anticipation why it is not possible to grant permission for the appearance. In such case if the appearance is indispensable, new requisition

shall be made for another day and this time the office concerned shall not refuse the employee the permission to appear in the court. § Sole Paragraph: The superior who fails to comply with the provision of the article incurs in the penalty of disobedience in aggravated form. The employee who fails to attend the court will be subject to penalty applicable to the defaulter; and to be exempted from such penalties he has to prove either that permission was refused to him or that no notice was given to him to appear. Article 259 – Notice of orders or judgments - Whenever notices of orders and judgments are served on the agents, a copy of the order shall be sent to him, without the judgment portion. Article 260 – Notice for personal appearance - When the notice is meant to call to the court the party or any other person, the court official shall indicate in the notice the day, hour, place where he is to appear and purpose for which notice is given and respective note is kept for his knowledge. A service report will be prepared which will be signed by the person notified. § Sole Paragraph: Where the notice is sent by postal service, no certificate is necessary and there is no need for making any note. Article 261 – Formalities for sundry notices - The service of sundry notices shall be done on the strength of respective application delivering to the recipient one duplicate on which the bailiff shall declare the day on which the service was effected. If the application is accompanied by any document, the official shall permit the notified person to read the same. The official shall make the report of the event, which will be signed by the notified person. The application along with the report shall be given to the applicant. § Sole Paragraph: The applications for sundry notices shall always be submitted in duplicate. And if the persons to be notified are more than one, number of duplicates are to be submitted as per the number of persons to be notified, living in separate economy. Article 262 – Bar on opposition to sundry notices - The sundry notices do not admit of any opposition. The respective rights can be enforced only in the competent actions.

Article 263 – Notice for revocation or relinquishment of Power of Attorney - If the notice has the purpose of revoking the power of attorney, service will be effected not only on the attorney but also on the person with whom he was supposed to contract, if the agency was created to deal with specific person. In other cases, the revocation shall produce effect in relation to third party acting in good faith, provided the same is announced in the newspaper of the locality in which the attorney resides. If there is no paper published in that locality, the notice shall be published in any paper of the seat of the judicial division, and if there is no newspaper in such seat, then any newspaper in the judicial division nearest to the residence of the attorney. § 1: The revocation of agency may be done also in any other form; but in relation to third party in good faith it shall not produce effect unless they are communicated or without being published in the manner found in this article, depending upon the third parties are certain or uncertain. § 2: The revocation or the renunciation of the power of attorney produced in any proceedings shall produce effect after the production of the application in the said proceeding and the certified copy of the service of the notice.

SECTION I COMMENCEMENT AND PROSECUTION OF THE PROCEEDINGS Article 264 – Duty to promote prosecution – Duty of probity on parties – Power of Judge to ascertain the truth - The initiative and the prosecution of the proceedings are upon the parties; it is their duty not to consciously formulate unjust prayers, not to plead facts contrary to the truth nor to take simply dilatory steps. The Court has power to suo moto order steps and measures for discovery of the truth. •Articles 264-279 - Proceedings - Corresponding provisions in C.P.C. 1908: - oPleadings – Order VI. Article 265 – Duty of parties to co-operate - The parties and their representative are bound to appear whenever they are notified to appear and furnish all the clarifications sought from them.

Article 266 – Power of Judge to render prompt Justice - Justice should be prompt. It is

incumbent upon the judge to remove all the obstacles which come on the way of the regular progress of the cause, either refusing what is not relevant or purely dilatory, or directing what is necessary for the progress of the proceedings.

Article 267 - When the case is deemed to be filed - The proceedings stands initiated by

instituting the same. The action is deemed as proposed, filed, or pending, as soon as the initial petition is received in the office. However, the mere institution has no effect in relation to the respondent until he is served, save what is provided in article 253. § Sole Paragraph: In the judicial division where there is more than one court the suit is deemed to be filed as soon as the petition is received in the registry which is on the turn.

Article 268 – Principle of stability of proceedings - Once the respondent is summoned, in

principle, the proceedings remain the same as to the persons, object or relief and cause of action. Article 269 – Necessary alteration due to joinder of new respondent - Until the stage of the pleadings is over, the petitioner may join in the cause new respondents when he finds their joinder is necessary in order to secure the standing to sue. The petitioner can take the same step when in the curative order the court holds that there was non-joinder of parties and as such the respondent was not a lawful party. Article 270 – Other necessary modifications - The proceedings may be modified in relation to persons in the circumstances mentioned in the previous article and also;

1. (a) On account of the death of any of the parties;
2. (b) On account of the transfer inter vivos of the thing or right under litigation.
3. (c) As a consequence of applications for intervention by third parties.

Article 271 – ‘Locus standi’ of transferor – Joinder of transferee - In case of transfer inter

vivos of the thing or right subject of the litigation, the transferor shall continue to have standing to sue, until the transferee is by way of application for substitution permitted to substitute the transferor.

§ 1: Substitution shall be admitted when the opposite party agrees to the prayer. In the absence of agreement, the substitution is to be declined only if it is found that the transmission was made to render the position of the adversary more difficult in the case. § 2: The final Judgment shall produce effects in relation to the transferee even if he does not intervene in the proceeding, except where the suit was liable to be registered and the transferee had registered the transfers before the registration of the suit. Article 272 – Alternative prayers - It is permitted to frame alternative reliefs in relation to rights and obligations which by their nature or origin are alternative, or which may be granted in the alternative. § Sole Paragraph: When the election is left to the discretion of the debtor the omission to seek relief in the alternative is not a ground to refuse relief in the alternative. Article 273 – Ancillary reliefs - It is lawful to pray for ancillary reliefs. Ancillary relief means that relief asked may be taken into consideration only when main relief cannot be granted. § Sole Paragraph: The inconsistency amongst the reliefs is not a ground to apply for subsidiary relief; but, the circumstances in sole paragraph of article 29 regarding joinder of parties will come in the way of the grant of the subsidiary reliefs. Article 274 – Aggregation of reliefs - It is open to the plaintiff to seek more than one prayer cumulatively as against the same defendant which may be compatible with the form of proceeding, as to the competence to the court and absence of obstacles indicated in the sole paragraph of article 29. Article 275 – Generalized reliefs - It is permissible to the plaintiff to seek general reliefs in the following cases. 1)When material object of the suit is general in nature as far as facts are concerned; 2)When it is not possible to find in a definitive manner the consequences of an illicit fact; 3)When the determination of the amount is dependent upon rendering of the accounts on any other act which ought to have been performed by the defendant. § Sole Paragraph: In the case of clause no. 1 and 2, the relief may be converted into specific by

way of incidental proceeding of liquidation. The conversion will be left to the execution if it is not possible to grant the same in the suit for declaration. Article 276 – Claim for instalment due – Where there is a case of periodical instalments either in cash or in kind, if the debtor does not pay, the prayer as well as the order may cover not only the arrears of the instalments due as also future instalments until the main obligation subsists. It is also permissible to ask for future instalments when eviction from a property is sought on expiry of lease and also in the similar cases where the absence of executable document at the date of the accrual of instalment, may cause grave prejudice to the creditor.

Article 277 – Amendment of pleadings by consent - When there is agreement between the

parties, the relief as well as the cause of action may be altered at any stage, in the first or second instance except where it is found that the alteration fundamentally disturbs the trial, arguments or decision. •Articles 277-278 – Amendment of pleadings - Corresponding provisions in C.P.C. 1908: - oPleadings – O.VI oAmendment of pleadings – r. 17 of CPC Article 278 - Amendment of pleadings when there is no consent - In the absence of agreement, the cause of action may be changed in the replication, if the proceedings admit it, unless the change is the consequence of admission made by the respondent and accepted by the petitioner. The relief may be also altered in the replication; the petitioner may also at any stage reduce the relief and amplify it till the decision of the first instance, if it is the development or consequence of the original prayer. § Sole Paragraph: If the modification of the relief is done in the course of trial, the same shall be noted in the rozanama. •This is a provision for amendment of proceedings and its latter part is similar to O.6, R.17 of Civil Procedure Code, 1908 Article 279 – When counter claim is admissible - The defendant, in the counterclaim, may seek reliefs against the plaintiff. The counterclaim is admissible: 1.When the prayer of the defendant emerges from the act or juridical fact which is the basis of the plaint or the defence;

2. When the defendant desires to obtain compensation or claim the right to improvements or expenses relating to the thing, delivery of which is sought from him; 3. When the prayer of the defendant intends to achieve to his benefit, the same juridical effect which the plaintiffs proposes to obtain; 4. When the prayer of the defendant proposes to widen the object of the action, so that the sustainability or unsustainability of the act or of the basic fundamental juridical relation, may be adjudicated. § Sole Paragraph: The counterclaim is not admissible when to the prayer of the defendant entails a type of procedure different from that pertaining to the prayer of the plaintiffs, save where the prayer of the plaintiffs is subject to ordinary procedure and the prayer of the defendant is subject to a simpler form of ordinary procedure. Article 280 – Consolidation of suits - Where there are separate suits filed which, in accordance with articles 29 and 30 could have been combined in one suit, the court shall order their consolidation upon the application of either party even though they may be pending in different courts, unless the stage of the proceedings or any other special reason is against such consolidation. § 1: The proceedings shall be appended to the proceeding which was filed in the first place, except where the reliefs are independent of each other, because in such case consolidation will be made in the order of the dependence § 2: The joining shall be applied for before the court where other proceedings are to be appended. SECTION II STAY OF PROCEEDINGS

Article 281 – Grounds for stay of proceedings - The prosecution of suit stands stayed in

following cases: 1. When any of the parties dies or ceases to exist; 2. In the proceedings where appointment of the advocate is mandatory and he dies or is completely incapacitated from exercising his mandate. In other cases when legal representative of the incapable dies or is incapacitated from acting as legal representative, save where there is an

advocate or legal advisor appointed; 3. When the judge orders stay; 4. In other cases where law specifically directs the stay. § Sole Paragraph: In the case of transformation or amalgamation of a collective person who is party to the suit, the prosecution does not get stayed and only the substitution of the representatives is be done where necessary. •Articles 281-289 – Stay of proceedings - Corresponding provisions in C.P.C. 1908: - oStay of Suit - S.10 Article 282 – Stay due to death of party - Upon the production of a document which proves the death or extinction of any of the party, the proceeding shall immediately stand stayed, except where the oral arguments have already started. In such case, the suit shall stand stayed after the passing of the judgment. § Sole Paragraph: It is the duty of the party to bring on record the factum of the death or extinction of the co-plaintiff or his counterpart, as soon as he had notice of the death and it is possible for him to annex to the file document in support of the death. If not done so, all the acts done subsequent to the death which ought to have been certified will be of no effect. Article 283 – Stay upon death or impediment of attorney - In case of clause no. 2 of article 281, as soon as the proof of the fact is produced, the suit shall immediately be stayed. However, if the file is placed before the judge for passing judgment is ready for being so placed before the judge, the stay shall take place only after the passing of the judgment.

Article 284 – Stay by Judge - The judge may order stay where the decision of the case is

dependent on the judgment in another case already filed and when he is of the view that there is another ground to justify the stay. § 1: Despite pendency of the prejudicial cause, no suspension shall be ordered if there are well founded reasons to believe that the other case was instituted solely for the purpose of obtaining the stay or if the first case is at such an advanced stage that prejudice caused by the stay is much more than the advantages. § 2: When the stay is not on the ground of pendency of a prejudicial case, the time of duration of the stay shall be fixed in the order.

Article 285 – Stay to ensure compliance with Revenue laws - Matters in which the ownership or possession of a property or based on acts connected with an industry or profession subject to payment of tax shall remain in suspension until entry in the file or booklet of the property from where it is seen that the property has been inscribed in the matriz, or challan of payment of industrial tax is produced, or professional tax or payment of any of the instalment is produced. § Sole Paragraph: Until there is a document supporting the payment or the booklet to prove the inscription produced in the fiscal office, the inscription may be proved by certified copy of matriz or the report that was made for making such inscription. Article 286 – Stay to ensure compliance with Revenue laws – So also a suit where interest is prayed for either prior to the filing of the suit or subsequent thereto, shall not be entertained, unless it is established that the plaintiffs have been registered under usury laws for the purposes of the payment of tax towards interest. Article 287 – Duty of Judge for the purpose of stay - In the cases foreseen in preceding two articles and any other in which there is no compliance with the fiscal provisions, by express provision of the law, the proceeding shall remain stayed and the judge shall order stay when the omission or the violation comes to his knowledge. Article 288 – Effect of stay – When there is a stay of the proceeding only urgent acts can take place to avoid irreparable loss. The party who is prevented from attending the court, shall be represented by the Public Ministry or by an Advocate appointed by the judge. Periods of limitation shall not run during stay. In the case of clause no. 1 and 2 of article 281, the stay nullifies the part of the limitation period which has run before. Article 289 – Vacation of stay - The stay is vacated :-

1. (a) In the case of clause no. 1 of article 281 when order bringing on record the legal representatives of the deceased or of the extinct collective body is notified;
2. (b) In the case of clause no. 2 when the opposite party has knowledge that another advocate has been appointed or the party has another representative or that the impossibility which occasioned stay has ceased.
3. (c) In the case of no. 3 when the prejudicial case is finally decided or when time fixed for the purpose has already elapsed.
4. (d) In case of no. 4 when the incident is over or the circumstances to which the effect of stay was given have ceased. § 1: If the decision of the prejudicial case removes the ground or the reason for suit, the suit shall be dismissed. § 2: If the party delays the appointment of the new advocate the opposite side may apply that the same party be notified to appoint new advocate within the time fixed. The absence of the appointment within period fixed shall have same effect as lack of initial appointment. Any party may equally apply that the Public Ministry be notified for the appointment of new representative for the legally disabled person when the earlier one has expired or it is impossible for the said representative to act for a period which may extend beyond 30 days. In the event there is no representative appointed when the period has expired the stay shall cease and the legally disabled person shall be represented by the Public Ministry. SECTION III TEMPORARY SUSPENSION OF PROCEEDINGS Article 290 – Grounds for temporary suspension and its effects - The proceedings are temporarily suspended when the file is pending for more than one year due to lack of initiative from the parties. Once the proceedings are temporarily suspended the effect of clause no. 2 of article 552 of the Civil Code attributed to service of summons ceases, the time till service being added to the time from the moment of interruption of the proceedings. The time for filing proceedings will run again on the same terms. •Articles 290-306 – Abatement - Corresponding provisions in C.P.C. 1908: - oAbandonment, Withdrawals, Compromise – O.XXIII oAdmission of claim – O.XII oWritten Statement, Set-Off and Counter Claim – O.VIII oAppearance of parties and consequence of non-appearance – O.IX oExamination of parties by the Court – O.X Article 291 – How suspension ceases - The temporary suspension and its effects cease immediately after the plaintiff declares in the proceedings that he desires its continuation and such declaration is notified to the defendants who have not defaulted in appearing. But the notification shall not produce any effect if the plaintiff does not take steps to prosecute the proceedings within 48 hours. § Sole Paragraph: The notification shall have effect, although the period of prescription or the period to exercise the right to file a suit has already expired, except if any of the defendants invoke prescription or the bar of limitation before the plaintiff makes the declaration that is referred to in this article. In the later case, the declaration shall not be accepted. SECTION IV TERMINATION OF PROCEEDINGS Article 292 – Grounds and manner of abatement – A proceeding ends by final judgment, by settlement through arbitration, by abandonment, by withdrawal, by admission and by compromise.

Article 293 – Grounds for dropping of proceedings - The judge shall abstain from taking

cognizance of the relief and discharge the defendant in the suit: 1.When the defence of lack of jurisdiction is decided in the affirmative; 2.When the entire proceeding is annulled; 3.When he is of the opinion that any of the parties lacks judicial personality or, being incapable, is not duly represented; 4.When he considers that any of the parties do not have a standing to sue; 5.When any other dilatory exception is decided in the affirmative. § Sole Paragraph: The provisions of this article shall not be of any effect when the proceeding has been transferred to another court and when the absence or irregularity is cured. •Article 499, 514(1), 660 of this Code. Article 294 – Consequences and effects of dropping proceedings – Dropping of proceedings in no case precludes to the institution of another action for the same purpose.

The civil effects derived from the institution in the first action and of the service of summons on

the respondent shall be maintained wherever possible, if the new case is intended or the

respondent is served within 30 days from the time when the judgment dropping the proceedings becomes final for want of appeal. § 1: If the plaintiff files a new suit without paying the costs directed in the previous suit, not only payable to the court, but also to the defendant, the latter may apply, after the expiry of the period to raise objection against calculation of the costs, that the plaintiff be notified to prove that such costs have been paid, on pain of a fresh discharge of the defendant being ordered, and the plaintiff loosing the benefit referred to in the second part of the article. § 2: If the defendant is discharged from the suit on the grounds No.1 and 5 of article 293, in the new suit between the same parties the evidence produced in the first suit can be made use of and the decisions passed therein on controversial questions, shall be effective, save for what is provided in Article 105. Article 295 – Agreement to refer to Arbitration - The parties may agree, at any stage of the proceedings that the decision of entire matter or a part thereof be remitted to one or more arbitrators of their choice. As soon as the arbitration agreement is drawn up in the proceedings or document containing arbitral clause is produced, the court shall examine whether the agreement to submit to arbitration is valid in relation to its object and the status of the parties, and if so, the proceedings shall come to an end and the parties shall be referred to the arbitral tribunal, each of the parties being directed to pay half of the costs, unless otherwise expressly agreed. § Sole Paragraph: It is not lawful to place reliance on any record of the proceedings, unless the parties have made an express reservation to the contrary. •See also Article 1561 of this Code. Article 296 – Abandonment of proceedings - The proceedings shall be considered as abandoned when it remains pending for a period of 5 years, without prejudice to what is provided in the following article. As soon as the fact foreseen in this article is ascertained, the office shall place the file before the judge for the proceedings to be declared closed in view of abandonment.

Article 297 – Abandonment of appeals - Appeals shall be declared as abandoned for lack of prepayment of costs towards the prosecution of the appeal or of payment of costs, as provided in the appropriate law. The appeals shall also be declared as abandoned, when by reason of inaction of the parties, the appeals were pending for more than one year, although the initial prepayment of costs may have been done. If any incidental proceedings has arisen with effect of stay of the operations, the appeal shall be adjudged as abandoned, if more than one year has elapsed without there being any progress in such incidental proceedings. The desertion shall be adjudged by simple order of the Judge or of the Assignee Judge.

•Assignee Judge (“Relator”): in a collective Court, one of the Judges was assigned the task of preparing the judgement.

Article 298 – Liberty to withdraw, admit, claim and compromise - The plaintiff may, at any stage, withdraw all the reliefs prayed or a part thereof, in the same manner as the defendant may admit all or part of the relief. It is also lawful for the parties, at any stage of the suit, to enter into a compromise over the object of the suit. Article 299 – Effect of admission and compromise – An admission or a compromise has the effect of modifying the relief or put an end to the case in the precise terms in which it has been drawn. Article 300 – Effect of withdrawal - The withdrawal of the claim extinguishes the right which was intended to be enforced. The withdrawal of the proceedings only brings to an end the proceeding which is initiated, unless it takes place after a passage of eight days from the notice of the curative order, because in that case, it shall have the same effect as abandonment of the claim.

Article 301 – Protection of the rights of respondent - The withdrawal of the proceedings

depends upon the acceptance of the respondent, when it is applied for after the written statement is filed. The abandonment of the claim is free, but does not defeat as a rule, the counterclaim.

Article 302 – Restriction on the rights of representatives of collective persons, incapable

persons and absentees - The representatives of collective persons and of incapables or absentees can only withdraw, admit or compromise within the precise limits of their powers or special authorization from the entity who has power to grant the same. Article 303 – Admission, abandonment and compromise in case of joinder of parties - In case of joinder of proper parties, the admission, abandonment and compromise by an individual are free, limited to the interest of each one in the suit. In case of joinder of necessary parties, the admission, withdrawal and compromise of any of the parties has bearing only on the costs. Article 304 – Limitations on admission, abandonment and compromise - It is not lawful to make admission, abandonment or compromise which imports the affirmation of the wish of the parties in any legal domain in which it is not lawful to make such affirmation.

Article 305 – How admission, abandonment, compromise is to be made - The admission,

withdrawal or compromise may be made by recording it in the proceedings or by an authentic document. The record shall be drawn within the period fixed by the court or else the proceedings shall continue. The record having been drawn or the document having being produced, it shall be examined whether such admission; abandonment or compromise is valid as to its object and capacity of the persons making it; and in the affirmative, it will be so ordered in the final judgment issuing proper declaration or either allowing the relief or dismissing the same, as the case may be. § Sole Paragraph: When the nullity of admission, withdrawal or compromise arises solely from lack of power or irregularity of mandate, it shall be sufficient if the judgment is personally notified to the party and such party did not challenge the same within the prescribed period. •In this connection see also Article 38.

Article 306 – Revocation of admission, abandonment or compromise - It is not lawful to

revoke the admission, abandonment or compromise due to a mistake of law, but it may be revoked due to a mistake of fact, deceit, coercion or misrepresentation in a suit brought for this purpose.

§ Sole Paragraph: The suit for revocation, till it is decreed, does not prevent that order passed on an admission, abandonment or compromise from producing all its effects.

SECTION I GENERAL PROVISIONS Article 307 – Mode of applying and means of proof - The steps regulated in this chapter shall be drafted without paragraphs and it is incumbent on the party to submit the list of witnesses and apply for any other means of evidence. Article 308 – Time limit to file Defence statement and indication of means of proof - The opposition to the prayer, when admissible, shall be filed also without paragraphs, within a period of 8 days, observing, as regards the leading evidence, what is provided in the previous article. Article 309 – Limit on number of witnesses - Not more than 3 witnesses may be produced to prove each fact, and their total number, for each party, shall not be more than 8. SECTION II VALUATION OF THE CAUSE Article 310 – Valuation and its consequences - To each and every cause a specific value should be attributed expressed in legal tender, which shall represent the immediate economic utility which is sought through the action. This value shall be taken into account for fixing the pecuniary jurisdiction of the Court, the type of proceedings and whether the cause exceeds the pecuniary jurisdiction of the Court. § Sole Paragraph: For the purpose of costs and other legal burdens, the value shall be fixed as per the rules laid down in the relevant legislation. •Articles 310-324 – Valuation of the cause: oSuits Valuation Act, 1887 and oCourt Fees Act, 1870.

Article 311 – Valuation for money matters and eviction cases - If the suit is instituted

demanding certain amount in cash, this will be the value of the suit and any objection against the same or agreement to the contrary is not admissible. If the suit is meant to achieve different purpose the value of the suit shall be the amount in cash equivalent to such benefit. § Sole Paragraph: In the suit for eviction the value shall be of the annual rent, when the lease is for a period of one year or exceeding one year, and the rent of six months when the lease is for more than six months or more and less than one year; and of the monthly rent when the lease is for less than six months. Article 312 – Valuation in case of cumulation of prayers and other types of prayers - Where there is joinder of prayers, the value of the suit shall be amount corresponding to the totality of the prayers. If the reliefs are in the alternative only the reliefs of greater value shall be taken into account; if the reliefs are subsidiary, the prayer formulated in the first place shall be taken into account. § Sole Paragraph: When interest, rent, income already accrued and to be accrued, during the pendency of the suit, is demanded, the value of the suit shall be only the interest already accrued. Article 313 – Time to determine value – Valuation of counter claim - For the fixation of the value, the time to be considered is the date of institution of the suit, However, if the defendant files a counter claim, the value of the prayer formulated by the defendant shall be added to the prayer formulated by the plaintiff; but, such increased value shall have effect only to the extent, of the acts subsequent to the defence of the defendant. Article 314 – Valuation for future rents - If in the suit there are instalments already accrued and instalments to be accrued the value shall be fixed adding both the values. Article 315 – Valuation shall depend on value of juridical act - When the suit is for determining the existence, validity, implementation, modification or rescission of a juridical act, the value fixed by the parties shall be taken into account. If there is no price nor value stipulated, the value of the act shall be fixed in accordance with the general rules.

Article 316 – Valuation based on value of thing - If the suit is to enforce a right of full

ownership to property over a thing, the value of the same thing shall be the valuation of the cause. If there is a case of property in imperfect ownership or of capital of one instalment, the general rules of the valuation shall be observed. Article 317 – Valuation for status or Incorporeal rights - In the suit in respect of status of a person or in respect of incorporeal interests, the valuation is always considered equivalent to the pecuniary jurisdiction of High Court plus 1 $ (one escudo). Article 318 – Rights of parties to indicate value – how exercised - The plaintiffs shall indicate the valuation of the suit in the plaint, without which the plaint shall not be received. The defendant may, in the pleadings where he files his defence, challenge the valuation, provided that he offers his own valuation in substitution. In the subsequent pleadings, if available, the parties may agree to any valuation. § 1: If the suit permits only two pleadings, the plaintiff has liberty to declare, within three days subsequent to the defence of the defendants, that he accepts the value fixed by the defendants. § 2: When the plaint does not contain the indication of the value and despite the same, has been wrongly accepted, the plaintiff shall be notified to declare the valuation as soon as the omission is discovered. In this case, notice will be given to the defendants of the declaration made by the plaintiffs; and if the time for filing the pleadings is over, the Defendants may contest the value declared by the Plaintiffs. § 3: The absence of challenge on the part of the defendant signifies that the Defendant accepts the value offered by the Plaintiff. Article 319 – Will of parties and judicial intervention in fixing valuation - The value of the case shall be that which is agreed between the parties as provided in the preceding article, except where the judge finds, after the pleadings are over, that the real value is different that offered by the parties. If the parties are not in an agreement or if the judge is of the view that the agreement is in flagrant opposition to reality, the value shall be fixed by the judge if the proceedings contains necessary material; if not, the valuation shall be fixed in accordance with two following articles.

Article 320 – Valuation where neither will of parties nor power of judge are adequate - In the suit referred to in article 316, the value shall be fixed. a) By the head of the registry when the suit deals with properties registered in matriz (Revenue Record), of the dominium directum, of the census or any other instalment payable in cash or kind of which there is value fixed by the Municipality. Upon the certificate of matriz or rate fixed by the municipalities produced, the head of the registry shall observe the rules relating to the valuation considering the net revenue as the real value of the property; b) By the last listed price when it is a case of securities, values, or objects having legal price, or listed price; c) By the valuation done by the expert when it is a case of precious stones or metals. Article 321 – Valuation in extreme cases - If it is not possible to fix the value in the manner provided in the preceding article or in cases different from those referred to in article 316, the judge shall summarily decide the matter, holding inquiry in the manner he thinks fit and fix the valuation. When it is necessary to fix the valuation by way of arbitration, the valuation shall be fixed by a single expert appointed by the judge and against whom no impediment or recusal by parties shall be entertained. Article 322 – Valuation of incidental proceedings - The valuation of the incidental proceedings is that of the main cause to which they relate, save where the incidental proceedings are appended to the main cause and have in reality a value different from that of the cause, because in such cases, the valuation shall be determined in accordance with preceding articles. § Sole Paragraph: When the party who files the incidental proceedings does not indicate any different valuation, it is understood that he accepts that the value is that of the main cause. The opposite party may challenge the valuation of the ground provided in the exceptions foreseen in the article and in that case Article 319 to Article 321 shall be followed with necessary adaptations. The challenge is also admitted when different valuation is given to the incidental proceedings and the opposite party does not agree with such valuation. Article 323 – Valuation of Preventive and Mandatory Injunction proceedings - The valuation of the preventive and conservatory proceedings shall be fixed in following manner:

1. (a) In the case of seizure, according to the amount of credit, which is sought to be guaranteed; and if the seizure is not meant to secure payment of any amount, by the value of the objects seized;
2. (b) In the case of injunction to prevent new construction and preventive measures, by the damage which is sought to be avoided;
3. (c) In the case of sealing and enlisting of the articles, by the value of the properties listed or seized;
4. (d) In the case of deposit, by the amount or the value of the thing deposited;
5. (e) In the case of provisional alimony, by the monthly amount asked multiplied by 12;
6. (f) In the case of provisional restoration of the possession, by the value of the property dispossessed;
7. (g) In the case of suspension of resolution of the company, by the amount of damage likely to be caused;
8. (h) In the case of offering the security, by the amount to be secured.

Article 324 – Effect of valuation on jurisdiction and type of proceedings - After being

satisfied by the final decision on the incidental proceeding that the court has no jurisdiction or the category of the proceedings to the action is different, the case shall be remitted to the court having jurisdiction or the appropriate form of the procedure is directed to be followed; without, however, annulling whatever has been processed. However, if the judge is of the view that the use of less solemn form caused prejudice to the defendant in his defence may upon the application of the defendant permit him to submit new defence in accordance with the applicable form of the proceedings SECTION III INTERVENTION BY THIRD PARTY SUB SECTION I IMPLEADMENT OF A THIRD PARTY

Article 325 - Impleadment of true owner - Whoever is sued as a possessor of the property

enjoying it in his name where in reality he possesses the same in the name of another shall be

bound to indicate the person in whose name it is possessed. If he does not do so, he shall be deemed to be a possessor in his own name, but the judgment passed on the merits of the case shall not constitute res judicata against the person in whose name he was enjoying, unless the later voluntarily joins in the suit. The person against whom the suit was filed, shall be answerable to the owner for all the damages caused on account of default in not bringing him on record. •Articles 325-364 – Joinder of parties, Third Party, Party procedure – Corresponding provisions in C.P.C. 1908: - oThird party procedure – Bombay High Court, Amendment to CPC – O. VIII, rr. 23 to 36. oParties to suit – Suit in name of wrong plaintiff – O.I, r.10

Article 326 – Limitation and notice - The period for the indication of the name of the real

owner shall be counted from the date of service of summons. The defendant shall apply that the plaintiff be given a notice of the indication made by him. Article 327 – Acceptance or refusal by Plaintiffs – consequences - The plaintiff shall declare if he accepts the indication made by the defendant. If he does not accept it, the indication shall be without effect, and the time of the defence shall start from the date the defendant was served with the refusal by the plaintiff. If the plaintiff accepts the indication or does not make any declaration, service will be made on the person indicated and to whom the copy of the plaint and of the application for indication of the name shall be given. § Sole Paragraph: When the plaintiff does not accept the indication, the judge shall declare that the defendant has no locus standi if he is convinced that the Defendant is enjoying in the name of the other person. Article 328 – Consequence of the stand taken by the person named - The person named may decline the capacity attributed to him. If he does so, the indication shall equally have no effect and the period for the defence on the part of the defendant originally served will start from the date he is served notice of refusal on the part of the appointee. In such a case the status of being the possessor in the name of the other shall not come in the way of the defendant being considered the necessary party and the judgment delivered in the suit shall constitute res judicata

in relation to the appointed person. If the appointee does not decline the status in which he was called upon he shall be holding the position of the true owner, and the initial notice served upon the person initially sued shall be of no effect. But the latter may seek his joining in the suit as assistant and the judgment passed shall constitute res judicata against him. § Sole Paragraph: In the suit of concise nature the period shall be three days for the appointment and for declaration referred to in this article and two preceding articles. Article 329 – Indication of Defendant where act is done for another - Whatever is provided in the preceding articles is equally applicable to the case of an owner or a possessor suing someone as a consequence of the fact found to be violative of his right and of the person sued upon pleads that he did the act by order or in the name of third party. Article 330 – Nomination as Plaintiff - The defendant who has acquired a property from a third party, answerable for eviction in the respect of a thing, delivery of which is sought from him, or he had cause of action against the third party to be indemnified by him for the damages which are likely to be caused in the event of a suit being decreed, may nominate the third party as a plaintiff. If he fails to make such nomination, he shall prove in the suit for damages that in the previous litigation he has made all the efforts to avoid a decree against him. Article 331 – Time limit, notice and summons - The period for initiation of incidental proceedings starts from service of summons. Once the proceedings are stayed, the plaintiff shall be notified and the person who has been indicated shall be summoned, to whom at the time of service of summons the duplicate of the application and copy of the Plaint shall be given. Article 332 – Where the nominee refuses to join as Plaintiff - The person who is summoned may declare that he does not accept the impleader. If he says so, the suit shall proceed solely against the original defendant, but the judgment delivered on the merits of the case shall be res judicata in relation to the person who was summoned, and the latter is not entitled to plead in the suit for damages, that the defendant was negligent in submitting the defence, even when the latter

has admitted the claim in the plaint or not reacted against the judgment passed in the court of first instance. § 1: The defendant shall be served with the notice of the declaration by the impleader who has been called upon and time shall run against him from the date of the service of notice. § 2: The person who has been called as an impleader may intervene in the suit as assistant; if he intervenes and the defendant admits the claim, the judgment of the admission shall be notified to him and he may declare that he assumes the position of the principal party as defendant for further progress of the case. The person who has been called upon is bound to accept the case in the state as it is found at the time of the impleadment. Article 333 – Where the impleader accepts - In the event the impleader accepts the defense or does not make any declaration, the case shall proceed against him and against the original defendant. However, the judge, at the instance of the plaintiff, may declare that the impleadment is of no effect, when it is manifest that the incident has no serious ground and it is meant solely to make the position of the plaintiff in the suit more difficult. However, the defendant who has been served in the first place may apply for his exclusion from the suit. The application may be granted, but the judgment delivered on the merits of the case shall constitute res judicata in relation to the defendant also. § Sole Paragraph: If the impleadment is declared without effect, the time for defence shall start from the date the defendant was notified of such decision.

Article 334 – Nomination by the Impleader - The new defendant who has been called as

impleader at the instance of original defendant may also indicate another person for similar purpose and thus successively, whatever has been provided in Article 331 upto Article 333 shall be followed. Article 335 – Nomination as Defendant - The defendant who has been sued upon may designate another person as a debtor in the following cases:

1. (1) When the surety is sued upon, he may call upon the debtor to be party to the suit, in accordance with Article 832 of the Civil Code;
2. (2) When there being many sureties, whoever has been sued upon first may call upon the other sureties in accordance with Article 835 of the same Code;
3. (3) When a debtor liable jointly with others is sued, for the full debt, he may call upon other co- debtors to be joined;
4. (4) When one of the spouses is sued for the recovery of debt contracted by him, desires the impleadment of the other spouse to seek a declaration that he or she is also liable for the payment of the debt.

Article 336 – Time limit for nomination – summons - The time limit to call upon the new

party starts from the date of the service of summons. Summons shall be issued to the other persons to be impleaded, without however staying the proceedings. Each of the defendant so summoned shall be handed over one copy of the plaint. Article 337 – Time for defence in cases coming under Article 335, clauses 1, 2 and 3 - In the cases provided in clause 1, 2, 3 of article 335, any of the defendants may defend till last day upto when it is lawful for the last defendant to file his defence. If the suit is decreed the court will pass the decree not only against the original defendant but also against others who remained ex-parte. Article 338 – Procedure in cases under Article 335 (4) - In the case of clause 4 of Article 335, the defendants shall file their defence in separate, each of them within the legal time counted from the date of service of summons to the respective defendant, but the spouse who has been called upon always has a right to produce his or her defence within eight days after the defence presented by the other spouses. Two duplicates shall be annexed, along with the defence, one meant for the plaintiff and the second for the other spouse. § 1: Where the defendants did not dispute the plaintiff’s right as creditor, the court shall immediately pass the order decreeing the suit against the original spouse and the suit shall proceed solely between the spouses; the original spouse shall occupy the position of plaintiff. The written statement of the defendant spouse shall be treated as plaint. Where the suit admits more than two pleadings the time period for submission of pleading shall be counted from the date of the order of the court referred to in this paragraph. § 2: If the right to the credit is contested, the file will proceed with the intervention of three interested parties, but shall be understood that there are two connected suits, being one between

the plaintiff and two defendants, the other between the said two defendants. The time limit for filing the replication or the corresponding pleading, if available, shall start from the time fixed for producing defence; and if the defendants still have a right to reply the time limit for the reply on the part of the spouse who has been called upon to the suit shall be counted from the time assigned to the other spouse.

Article 339 – Consequence of these incidental proceedings on impediment, suspicion and

lack of jurisdiction - The incidental proceedings referred in the present section have precedence over the incidental proceedings for impediment, suspicion and lack of jurisdiction and the following procedure shall apply:

1. (a) Where the incidental proceedings of the joinder of the parties and have been rejected, the time to raise an incident of suspicion and of lack of jurisdiction shall start from the date when the defence of the original defendant is to be given;
2. (b) Where the original defendant is substituted or another person called upon to join, the time limit for raising such incidental proceedings shall start from the date of service on the new defendant and the suspicion will not be founded on the facts arising as against the original defendant;
3. (c) Where the suit is proceeding against the original defendant and those who are called upon to join, the time limit for filing the above incidental proceeding shall start from last service of summons. § Sole Paragraph: The person nominated and those who are been called upon to join are not entitled to raise exception of lack of jurisdiction on the ground of their place of domicile. SUB SECTION II ASSISTANCE THROUGH INTERVENTION Article 340 – Meaning and locus standi - Whoever has juridical interest that the decision of the dispute be favourable to a party where there is a pending suit between two or more persons, may intervene in order to assist the said party. Article 341 – Intervention and exclusion - The Assistant may intervene at any time, but he has to accept the proceedings in the stage they are at the time of volunteering the assistance. In the event the party opposite to the party that the Assistant is assisting, opposes the intervention, decision will be passed immediately or as soon as possible on whether the assistance is legal. Article 342 – Position of the Assistant – General powers and duties - The assistants have in the suit the position of the helpers to one of the principal parties. They enjoy the same rights and are subject to same duties available to the party who is assisted, but their activity is subordinate to that of the principal party and they are not entitled to perform any act which the original party lost the right to do, nor assume any stand which may be opposite to that of the person who is sought to be assisted. § Sole Paragraph: If the person who has been assisted is ex-parte, the assistant shall act as manager of his affairs. Article 343 – Deposition by the Assistant - It is lawful to seek statement of the assistant as a party. The court shall evaluate such statement with the full liberty giving it the merit, as it deems fit. Article 344 – Use of oral evidence - The Assistant may avail of evidence of the witnesses but only to complete the number of the witnesses permitted to the principal party. Article 345 – Assistant and admission, abandonment or compromise - Assistance does not in any way change the right of the principal party who may freely admit, withdraw or compromise the suit and in such cases the intervention will come to an end. Article 346 – Effect of Judgment on Assistant - The judgment pronounced in the suit shall be res judicata in the relation to the assistant to the effect that the latter may be bound to accept in any subsequent suit, the facts and rights which have been proved except;

1. (1) If the Assistant alleges and proves in the subsequent suit that the stage of the proceeding at the time of his intervention or the stand of the principal party did not permit him to use the pleading or means of the evidence which might have influence in the final decision;
2. (2) Where the assistant shows that he was not aware the existence of pleadings or means of evidence which could influence the final decision and which the assisted party did not avail intentionally or due to grave negligence. SUB SECTION III OPPOSITION

Article 347 – Meaning of opposition. Till when admissible - Whenever there is a pending

proceeding between two or more persons, a third party may intervene in the same as opponent in order to enforce his own interest, inconsistent with the claim of the plaintiff. Such intervention is admitted only till the time there is a date fixed for hearing of the matter in the first instance. Article 348 – Opposition by application - The opponent may file a claim by way of petition, simple or para wise, depending upon the form of proceeding and he shall immediately give the list of evidence if in the main cause there is a curative order passed. If there is no room to reject the petition in limine the petition, as provided in Article 481, notice will be issued to the parties of the main suit inviting reply within eight days.

Article 349 – Rejection of opposition - After the time fixed for the replies is over, the judge,

either in the curative order or within five days if such curative order has been passed, shall decide whether the intervention should be admitted. The court shall not admit the opposition: 1. If the same is not within time; 2. If the opponent does not have locus standi to institute the suit; 3. If the claim of the opponent was manifestly untenable; 4. If is necessary to stay for more than three months the course of the main suit, in order that the claim of the opponent is decided along with the main suit. Article 350 – Position of the Opponent - Once the opposition is admitted the opponent shall occupy in the litigation the position of the principal party with inherent rights and responsibilities.

Article 351 – Stand of parties as to opposition - If any of the parties in the main suit admits right of the opponent and locus standi of the opponent is satisfied, the suit shall proceed only between the other party and the opponent and the later shall take the position of the Plaintiff or of the defendant depending upon his adversary being defendant or the plaintiff in the main suit. If both the parties contest right of the opponent, the suit shall proceed amongst three parties, and in such case there will be two interconnected suits, one between original parties and other between the opponent and the others. The same happens, when the defendant acknowledges the right of the opponent and the question of locus standi of the latter shall be depending on the merits of the final judgment. Article 352 – Opposition provoked by Defendant - The opposition may also be caused by the defendant in the main suit. When the defendant is ready to satisfy the obligation, but has knowledge that a third party is claiming same right as the plaintiff, he may apply that such third party be called upon to file his claim in the suit. Article 353 – Notice to the Opponent - The notice shall be sought within the time fixed for filing the defence. After the proceedings are stayed, notice shall be issued to the third party fixing the time to give his say within the same time as given to defendant in the suit. Such time may be extended. § Sole Paragraph: At the time of service of notice copy of the plaint shall be served to the person notified.

Article 354 – Failure by notified party to respond - If the third party was served with the

notice personally and he does not file his claim, immediately a judgment will be passed directing the defendant to satisfy the claim of the plaintiff. Such judgment shall be binding on the person notified. Article 355 – Effect of claim filed by the Opponent on the course of the proceedings - If the third party proposes to file his claim, he shall present it within the time assigned for defence, in which, after opposing the claim of the plaintiff he shall make his claim and justify the same. The original defendant shall be excluded from the suit as soon as the standing to sue of the opponent

is acknowledged and he may stand in the position of the defendant. The Plaintiff shall have the right to file his defence to the claim of the opponent, even though the proceedings do not allow replication nor rejoinder. § Sole Paragraph: The original defendant shall be considered as depository of the thing or right in dispute, it being permissible to any party to apply that the amount may be deposited in the establishment where the judicial deposits are made or that the thing shall be handed over to another depositary. SUB-SECTION IV INTERVENTION AS MAIN PARTY Article 356 – Who can intervene as main party - When there is a matter pending between two or more persons, it is open to seek intervention therein as the main party: 1) To the person who in the relation to the object of the dispute has interest equal to that of the plaintiff or that of the defendant, as per article 28; 2) He who, as per Article 29 and 30 could join to the plaintiff or who could be sued along with the defendant.

Article 357 – Position of the intervenor - The principal intervenor enforces his own right,

parallel to that of the plaintiff or of the defendant.

Article 358 – Till what stage intervention is admissible - Intervention is admissible at any

stage, until the suit is finally decided. The intervenor accepts the case in the stage as it is found and he will be considered as ex parte in relation to the previous acts and records; but he enjoys all the rights of the principal party from the time of his intervention.

Article 359 – How the intervenor has to make out his case - If the intervention has been

applied for at the stage of pleadings, the intervenor may file his claim by proper pleadings, to which the opposing party has right to give his reply and in the rest the procedure provided in respect of the claims of the plaintiff or the defendants shall be followed. If the intervention is subsequent to the stage of the pleadings in the main suit, the intervenor has to adopt as his pleadings either the pleadings of the plaintiff or the pleadings of the defendants.

Article 360 – Challenge to the locus standi of the Intervenor - If the intervention is presented during the period of the pleadings, the opposite party may challenge the locus standi of the intervenor and satisfy in that none of the circumstances of Article 356 are satisfied. The judge shall take cognizance of the challenge in the curative order. Where the intervention is sought subsequent to the pleadings, the opposite party may object to the intervention on the ground of the locus standi of the intervenor or that the stage of the proceeding does not permit objection against the claim of the intervenor. The judge shall decide whether the intervention is to be allowed.

Article 361 – Intervention at initiative of parties - Any party may call upon the interested

parties to whom article 356 acknowledges the right to intervene as principal party. The plaintiff has right to call upon the parties who can join with him in the suit; the defendant also has the right to call upon the parties who may be associated with him along with those called upon to associate with the plaintiff.

Article 362 – Upto when intervention can be called by party - The intervention may be

applied for during the stage of the pleadings. After hearing the opposite party, it shall be decided whether the intervention is to be allowed. Article 363 – Notification of Intervener - The interested parties shall be called upon by way of notice. At the time the service, notices shall be given copies of the pleadings already tendered, which shall be produced by the intervenor. Within next 10 days subsequent to the notice, the notified party may file his pleadings or declare that he adopts the pleadings of the Plaintiff or of the Defendant. If the intervenor appears after the expiry of the period of the pleadings, he has to accept pleadings of the parties with whom he associates and all the acts and the steps already processed. Article 364 – Binding effect of judgment on notified person - If the notified person intervenes in the suit, the judgment shall appreciate his right and will constitute res judicata in relation to him. If he does not intervene, the judgment shall constitute, in relation to him res judicata when he has been notified in person and the eventuality of the instance no.1 of article 356 is satisfied.

SECTION IV FORGERY SUB - SECTION I FORGERY OF DOCUMENTS

Article 365 – Time limit to plead forgery of document - The forgery of the documents

produced along with the pleadings must be raised in the subsequent pleading or within the period of eight days if the documents are annexed with the last pleading. If the document is produced subsequently, the period for giving answer shall be 8 days, counted from the date of notice of production of documents. The forgery of documents produced along with memo of appeal shall be raised within 8 days counted from end of the period to submit the answer of the opposite party. If the party alleges and proves that he got the knowledge of the forgery after the time fixed for raising the plea of forgery, the same is to be raised within the period of 8 days counted from the date he got knowledge of the forgery. § 1: If the party has acknowledged, in equivocal manner that the document was genuine, he may raise the supervenient forgery. § 2: When the plea is raised subsequent to the pleadings, then it will be submitted in duplicate and processed as appendage. •See also Article 534 of this Code. •Articles 365-375 – Forgery of documents in judicial proceedings •Is not part of Civil Procedure in our system. Article 366 – Reply to the allegation - The opposite party shall reply in the subsequent pleadings or within 8 days, when time to file the pleadings has ended. In such cases the reply also is to be given in duplicate. If in the execution of the document a public officer has intervened, he will be summoned to contest the allegation within the period of 8 days when the forgery consists in a fact which is attributed to him or could not have been committed without his connivance.

Article 367 – Effect of reply or its absence - In case the opposite party does not reply or

declares that he does not want to make use of the document, the plea raised is considered as closed and the document shall not be considered in the suit for any purpose. If the plea is objected, the issue is to be decided. The decision is to be made in the curative order, if any, when the issue is raised in the pleadings. •See also Article 514 of this Code

Article 368 – Cases in which matter is not proceeded with - In the following cases no

cognizance is taken of the allegation of forgery: 1) When the court is of the view that the document has no bearing in the decision of the case; 2) When by mere inspection of file it is found that the opposite party has acknowledged that document is genuine except where forgery is supervenient; 3) When it is manifest that the issue is raised merely as a dilatory tactic. Article 369 – Procedural steps and Judgment - If the plea is cognizable, following steps are to be taken while entertaining and deciding the said plea: a)Where the plea of forgery is raised in the pleadings, the cognizance of the same shall be taken along with the trial of the main case and as per the norms applicable to the trial and each party is permitted to examine not more than 5 witnesses on the issue of the forgery; b)Where the plea has been raised subsequent to the pleadings, the parties shall within the period of 5 days from the date of the notice from the order taking cognizance shall produce all the documents and give the list of the witnesses. Within same period, examination of the documents shall be carried out and the same shall be applied within 3 days, subsequent to the time fixed for leading evidence; c)The plea of the forgery is to be tried along with the trial of the main case and the main trial will be stayed only for the minimum time required, in order that the trial should be joint. Article 370 – Fine - The party who has raised the plea of forgery shall be ordered to pay fine to be credited to the fund of the court if he withdraws the application or the issue is decided against him or he delays the prosecution of the inquiry for more than twenty days, except when the plea is manifestly in good faith.

Double fine shall be imposed on the party who consciously made use of the forged document. § Sole Paragraph: The plea of forgery will be without effect if the party has not prosecuted the same for more than twenty days. •Article 146 of the Code of Judicial Costs.

Article 371 – Intervention of Public Ministry - When the plea of forgery is under inquiry

before the court, the proceedings are compulsorily sent to Public Ministry who may take adequate steps for the purpose of prosecuting and deciding into the offence of forgery. § Sole Paragraph: Whenever in civil proceedings the plea of forgery is found proved, upon carrying out examination of documents, the record of the civil court shall be the basis of the criminal action and for the purpose the certified copy of the report of the examination and of the judgment of the civil court, unless any other evidence is necessary.

Article 372 – Communication to Public Ministry - In the event the civil court declines to

entertain the proceedings relating to forgery or the same is finally dropped, the record is to be passed to the Public Ministry so as to prosecute in the criminal court whatever is deemed fit. Article 373 – Incidental proceedings of forgery to take in the superior court - Whatever is provided in the preceding articles is applicable to the incidental proceedings of forgery filed before superior courts and functions of courts are performed by the judge assigned the case. The witnesses, who are resident outside the division of the court or seat of the court, are examined by sending letters of request when the parties do not produce the witness before the court. If the witnesses are produced by party, the inquiry will be conducted by the assignee judge before clearing it for hearing and the evidence is to be recorded in writing. But if the inquiry is to be done orally, the Assignee judge shall hold the inquiry during the session meant for hearing of the appeal. SUB - SECTION II FORGERY OF JUDICIAL ACTS Article 374 – Time limit to plead forgery in acts - The commission of forgery in the service of the summons is to be inquired within 8 days from the intervention of the defendant in the

proceedings. The forgery of any other judicial act also is to be raised within the same period from the date when it is understood that the party got knowledge of the act. To the forgery of the judicial acts whatever is said in the previous section (articles 365-373) is applicable; but the inquiry may be contested not only by adverse party, but also by the employees who had taken part in the act or to whom the forgery is attributed, who are to be summoned for the purpose. Article 375 – Stay of the case - When the issue of forgery is in respect of service of summons on the defendant further proceeding are stayed when the inquiry into the offence has started. SECTION V BRINGING HEIRS ON RECORD (SUBSTITUTION OF PARTIES) Article 376 – Enablement (qualification) of heirs - When, during the pendency of the cause, any of the parties die, the enablement of his successors shall follow the procedure prescribed in subsequent articles. The enablement may be initiated not only by the parties who are surviving as also the successors of the deceased. § Sole Paragraph: If the official entrusted with the service of summons on the defendant, certifies his death, the plaintiff may take steps to bring on record the successors of the deceased in the manner provided in this article, even though the death is prior to the institution of the suit. If the plaintiff dies after having given power of attorney to file the action and before it is filed, it is permissible to initiate the qualification of his successors when exceptional conditions are satisfied in which the agency may be continued after the death of the principal. •See also Article 281 (l) and 282 of this Code. •Articles 376-382 – Bringing heirs on record is part of a wider title (substitution of parties) and includes successors of legal persons also – Corresponding provisions in C.P.C. 1908: - oDeath, Marriage and Insolvency of parties – O.XXII Article 377 – Procedure for enablement (qualification) where locus standi is already acknowledged in a document or in another suit - In the event the status of the heir or status

which depends on the locus standi of the suit is already declared in other proceedings by a judgment already become res judicata, or acknowledged in a notarial deed of qualification, the substitution shall be based on the certified copy of the judgment or of the public deed. Upon bringing on record the said documents, the other interested parties shall be heard in the case of qualification through notary and the qualification by the judgment to those whom the judgment is not res judicata. The persons heard may contest the qualification of heirs and produce proof by documents and by witnesses. After hearing those witnesses during 5 subsequent days it shall be decided whether qualification stands proved and in the affirmative the representatives of the deceased are brought on record and they shall be served to continue with the proceedings except where the substitution has been applied for by the representatives themselves. § Sole Paragraph: There having been an inventory, those who have been indicated by the head of the family shall be considered as heirs brought on record if all have been summoned in the inventory and none of them have contested their locus standi or of others, within legal time. In such case, upon production of certified copy from the inventory proceeding by which the indicated facts stands proved, what has been provided in this article shall be observed. •See also Articles 1371 and 1374 of this Code.

Article 378 – Procedure for qualification in case locus standi is not confirmed - If the

requirement provided in the preceding article is not satisfied, upon the presentation or the application for the purposes, all the parties shall be notified to contest the proceedings and they may offer proof by documents or witnesses. The notice to the persons to be brought on record shall be personal. In 5 days subsequent to period established for objections witnesses shall be examined and immediately thereafter the application will be decided. § 1: When the capacity of heir is dependent upon the decision to be passed in any suit, the court shall declare the persons qualifying for the purpose those who are in possession of inheritance or who are heirs; and the other interested parties to whom notice is given of the decision shall be permitted to intervene in the case as co-parties of those who have been declared as heirs, following what is provided in Articles 358 and onwards. § 2: In case the substitution applied for has been declared not proved, the applicant may make

fresh application or adduce further evidence in the same proceedings. § 3: In the case prescribed in this article the incidental proceedings shall be appended to the main suit.

Article 379 – Qualification where heirs are not known - The heirs or successors of the

deceased being uncertain they shall be notified by way of publication in the newspaper. If nobody appears during the period of publication, the proceeding shall be continued with Public Ministry. If anybody appears claiming to be successor of the deceased, the surviving party shall be heard and may challenge the application. There being contest on whatever is provided in the previous article shall be observed; if nobody contests the proceedings shall continue with the person has put in appearance.

Article 380 – Identification of successors in case of winding up or liquidation of collective persons - If the party in the cause is a collective person which is wound up, the substitution of the successors shall be made in accordance with provision of Article 378. Article 381 – Identification of Purchaser or transferee - The substitution of the purchaser or transferee of the thing or right under dispute shall be made in the following terms: After the record of assignment is drawn in the proceedings or after production of document of transfer, the opposite party shall be heard, who may challenge the validity of the act or plead that transmission was made to make more difficult his position in the proceedings. In the case of opposition, the applicant shall be notified to reply and thereafter the decision will be passed. In the absence of opposition the validity of the transfer is acknowledged considering the object and capacity of parties who intervene therein, the purchaser or the assignee are acknowledged as successors and the suit may proceed with them. The substitution may be applied for by the transferee.

Article 382 – Identification of heirs in higher court - What is provided in this section is

applicable to the proceedings for substitution before superior courts and the functions of the judge shall be performed by the Assignee Judge, except for the pronouncement of judgment.

The witnesses resident outside the division of the court or seat of the court shall be examined by letter of request, except where the party agrees to produce them before the court. Those who are produced and are residing in the division of the court or seat of the tribunal shall be examined by the Assignee Judge and their statement shall be recorded. SECTION VI LIQUIDATION

Article 383 – Quantification of Relief - In the case of no 1 and 2 of article 275, the plaintiff,

before the trial shall, if possible, apply for proceedings to assess and quantify his generic prayer. •See also Article 275, clause 1 and 2 of this Code. •Articles 383 – 385 - Liquidation i.e. quantification of relief is not exactly statutory law in our midst. Article 384 – How to quantify - In the case of no.1 or Article 275, the plaintiff shall produce a list of the objects comprised in the universality, with the indication of particulars of identification in the case of no.2 of the same article and shall specify in the application the losses arising from the illicit act and apply for certain amount. Article 385 – Subsequent stages - If the incidental proceedings are filed 8 days before the last pleading, the defendant may challenge the assessment. The proof shall be offered and produced if possible along with remaining matter of the suit and defence but total number of witnesses for each party shall not be above 10. The subject of the incidental proceedings shall be considered along with the main suit.

SECTION 1 GENERAL PROVISIONS

Article 386 – Application of rules relating to incidental proceedings - The provisions of

articles 307, 308 and 309 are applicable to the proceedings regulated in this chapter. •Articles 386-435 – Preventive and Conservatory proceedings - Corresponding provisions in C.P.C. 1908: -

oSpecific Relief Act, 1963 – Ss. 38 – 42

oTemporary injunctions and interlocutory Orders - O.XXXIX of C.P.C oSupplemental proceedings – S. 94(e) Article 387 – Lapse of acts or measures - With the exception of deposits and protests, the acts or preventive measures shall be of no effect: 1. If the applicant does not file within 10 days the suit of which the proceedings are a preliminary step or having filed the suit same is kept pending for more than 30 days, on account of negligence of the plaintiff in prosecuting their terms or of any incident on which the prosecution depends; 2. If the suit has been dismissed by judgment which became “res judicata”; 3. If the defendant was exonerated at the preliminary stage and the plaintiff did not file suit within 10 days; 4. If the defendant paid the debt or has offered security whenever case relates to recovery of amount. § Sole Paragraph: The period of 10 days referred to in clause no.1 is counted in the case of provision of restitution of possession from the date of restoration; in other cases from the date when objections could have been filed and if there is objection, the period starts only after the judgment granting relief becomes final. Article 388 – Lifting of measures - In the case of clause no. 2, 4 and second part of the no. 1 of the previous article, the interim relief shall be vacated without hearing the plaintiff upon proof of the fact by the defendant of the circumstances of clause no.4 of the previous article. In other cases upon application filed by the defendant for vacating of the interim relief, the

plaintiff shall be heard; and if it is found the allegation made by the defendant is not untrue, the interim relief granted shall be vacated. Article 389 – Attachment of proceedings - The preventive or conservatory proceedings on own motion or upon the application of the parties shall be appended to the main suit when the same is filed. If the suit is instituted in another court, the preventive proceedings shall be sent to that court. From the time of appending or sending the file only the judge handling the suit is competent to take further steps. •See also Article 83 Sole Paragraph of this Code.

Article 390 – Anticipation of effects on Defendant - If the defendant has been heard in the

preventive or the conservatory proceedings, the filing of the suit shall be effective on him from the date of presentation of plaint. •See also Articles 267 and 485 of this Code.

Article 391 – Preventive measures during pendency of proceedings - The acts and interim

measures may be applied for in the course of the proceedings and in this case the provisions of this chapter shall be applicable to them to the extent applicable and shall be processed as an attached file. Article 392 – No second application for interim relief - In the event the interim relief granted has been vacated in terms of article 387 it is not lawful to make application afresh either preparatory as a incident of the same. SECTION II PROVISIONAL MAINTENANCE Article 393 – Cases in which provisional maintenance can be sought - As an act preparatory for the suit in which primarily or subsidiary installment .of maintenance have been asked, it is lawful to pray for fixation of monthly installment which the Plaintiff should receive towards provisional maintenance until the executable decree is passed in the suit.

The maintenance installment shall be fixed keeping in view what is strictly necessary for the maintenance, residence and clothing of the Plaintiff and also towards expenditure for litigation, when it is not possible to get legal aid. § 1: The part meant for expenses of litigation shall be separated from maintenance proper. § 2: The wife may ask for provisional maintenance as an act preparatory of the suit for separation of persons and properties or of divorce, when she had asked for judicial custody. But independently of such judicial custody, she is entitled to ask for provisional maintenance, as an act preparatory of suit for permanent alimony, based on lack of assistance or abandonment on the part of the husband. Article 394 – Provisions for provisional maintenance - The applicant shall mention the grounds of his claim and conclude by praying for a fixed monthly amount. Upon failure to contest, an order shall soon be passed considering the maintenance as prayed for by the applicant. There being a contest, the party shall be called for a conference which shall take place within a period of 8 days. In this conference, the judge shall make all efforts to secure the fixing of the maintenance by agreement between the parties. Where the same is not possible, witnesses who are acquainted with the matter shall be examined and the issue shall be immediately decided based on the declaration of the parties and the evidence produced. Minutes of the conference shall be drawn in which what had occurred shall be mentioned, and the agreement between the parties or the decision shall be accurately recorded. The minutes shall contain, in brief, the deposition of the witnesses. Article 395 – Consequences of absence from conference - If the applicant fails to attend the conference without reasonable cause, his application shall immediately be rejected and the applicant is not entitled to renew the prayer. The absence of the defendant without any justification shall have the same consequence as that in case of lack of contest. In the absence of any of the parties for just cause, a conference shall be called afresh which shall take place within the period of 5 days. If the absence from the second conference is not justified,

it shall have the same effect as the first. In the absence of justification, the decision which the judge shall pass as he deems fit upon the material which he could obtain, shall not be postponed.

Article 396 – Procedure where any steps are sought - If any of the parties apply, in the

conference, for service which cannot be effected immediately, the application shall only be allowed if it is found that the service is absolutely indispensable in order to arrive at a decision of the matter in question and the same cannot be effected by postal mail. Once the application is allowed, the same must be proceeded with within a period of 5 days and in the subsequent 3 days conference for the decision there shall take place. Article 397 – Service by Public notices - If the defendant has been summoned by publication, the lack of contest shall not have the consequence contained in article 394. In such case, there shall be fixed a day for hearing of the matter which day must be within a period of 8 days including the period designated for contestation; and in this hearing the alimony shall be fixed in accordance with the evidence produced by the applicant. § Sole Paragraph: If the defendant appears at the hearing, what is provided in articles 394 and 396, in relation to conference, shall be observed by him. Article 398 – Procedure for change of alimony - If there is ground to increase, decrease or end the determined installment, the prayer shall be dealt using the same procedure and observing the terms prescribed in the previous articles.

Article 399 – Alimony by proceedings incidental to main cause in superior court - The same form of procedure shall be followed when the provisional maintenance is sought in the course of the proceedings pending before superior courts, the Assignee judge exercising the same functions as a single judge with the exception of conference and of adjudication. § Sole Paragraph: The applicant shall have to show in this case that the maintenance is necessary for the prosecution of the pending case in the first instance.

SECTION III PROVISIONAL RESTORATION OF POSSESSION

Article 400 – When and how provisional restoration of possession is possible - In case of

forcible dispossession, the possessor may pray that he may be provisionally restored to possession pleading the facts which constitute possession, forcible dispossession and use of force. If the Court is satisfied from evidence that the Applicant had possession and was dispossessed therefrom by use of force, shall grant restitution of possession, without notice to and without hearing the encroacher. •Civil Code article 487. •Article 400 – Provisional restoration of possession oThis embodies the principle of temporary mandatory injunction (AIR 1990 SC 867, Dorab Cawasji Warden vs. Coomi Sorab Warden). Article 401 – Appeal from Order restoring possession - When the suit for possession is filed, the defendant may, within a period of eight days from the service of summons upon him, appeal from the order which directed the restitution of possession and such appeal will be processed as an appendage to the proceeding for provisional restoration of possession. Article 402 – Rejection of relief not bar for possessory action - If the prayer for restitution of possession is rejected, the plaintiff is not precluded from filing a suit for possession in that regard, in which the decision passed in preparatory proceedings, is not to be relied upon. SECTION IV SUSPENSION OF THE RESOLUTIONS OF A SOCIETY Article 403 – Requirements for suspension of society resolutions - If any society, of whichever kind, passes resolutions, contrary to the express provisions of law or statutes, any of its members may, as an act preparatory to the suit for annulment, apply within a period of 5 days, independent of the protest, for the suspension of the resolution, justifying his capacity as a member and showing that the execution of the resolution can result in appreciable damage. •Commercial Code: Article 186, Law of 11/04/1901, Article 46.

Article 404 – Objection and decision - The board of the society may oppose the application; and, at the end of the period prescribed for contestation, the application shall be decided. Although the deliberation may be contrary to the law or the bye law, the judge may, in his judicial discretion, abstain from suspending the resolution if he is of the opinion that the prejudice resulting from the suspension will be greater than the prejudice resulting from its execution. SECTION V PREVENTIVE MEASURES

Article 405 – Grounds for preventive reliefs - Where any person has just apprehension that

anybody may use force or commit acts which are likely to cause serious injury and irreparable loss to his right, he may apply for preventive measures which are adequate to prevent the damage such as possession, seizure, deposit of litigious thing, injunction or authorisation for certain acts. Article 406 – Procedure for preventive measures - The Court may grant the preventive reliefs without hearing the opposite party when such hearing is likely to defeat the purpose of preventive measure. If not, the opponent may be served with summons to contest. Before granting preventive measures the Court may collect information which it deems necessary and issue directions which it deems fit. The court shall try to maintain the fair balance between two interests, the one which the grant of injunction may cause and the other which by grant of injunction may be avoided.

Article 407 – Preventive relief in suit for immovables - During the pendency of the suit

pertaining to an immovable property, if the defendant causes damage to it or fails to cultivate or to do necessary repairs to it, the plaintiff may apply at any stage of the suit for the defendant to be directed to abstain from doing or to do the same act. Upon prima facie case being made out, order may be passed to notify the defendant immediately.

Article 408 – Receivership - If the defendant, after being directed, persists in his irregular

conduct, the plaintiff may apply, that the property or properties be entrusted to a receiver. In respect of the application, the opponent shall be heard, who may put forth his case and produce

any evidence in that respect within a period of 3 days. In the subsequent 5 days, the court shall ascertain, investigating by personal inspection, by arbitrament or any other means of proof, whether the case of the applicant is true, and in the affirmative, the application shall be granted. SECTION VI SEIZURE SUB - SECTION I GENERAL PROVISIONS Article 409 – When seizure can be sought - A seizure may take place: 1. In cases of fraudulent reproduction of any work or counterfeit, in terms of Article 611 and 637 of the Civil Code and in cases of illegal use of trademarks or the seal of the state or of the local bodies; 2. In special cases in which the attachment of the ship or its cargo is admissible; 3. When the creditor has reasonable apprehension that the debtor will become insolvent or that he is concealing his properties. § 1: In the case under clause no, 1, the seizure would depend on the evidence of the existence of literary, artistic, industrial or commercial property and the offence is in relation to such property. In the cases under clause no. 2, the seizure would depend on evidence of certainty of the debt and the admissibility of the attachment. In cases under clause no. 3, besides the evidence of certainty of debt, the attachment would depend upon the evidence of reasonable apprehension, and if the debt is commercial, and the debtor is a businessman, his name had not been registered in proper books. § 2: The debt shall be considered as certain when the existence of a lawful act from which the credit has arisen or the fact which gives rise to the obligation is confirmed by judicial decision, If the fact to be proved is of criminal character, the order of framing the charge, or its equivalent, is sufficient when the said order has attained finality for want of appeal. If the credit is unascertained, the probable quantity of debt has to be indicated in the application; where the debt is conditional, no order for attachment shall be passed without the applicant furnishing a security.

§ 3: In the case foreseen in the final part of Paragraph 1, the seizure shall be ordered if the creditor proves that the debtor, although registered as a businessman, never performed any commercial activity or stopped doing the same for more than 3 months. § 4: The certificate that the debtor is not registered as a businessman, meant to serve as evidence, will not have value when more than 8 days have passed before the application for attachment is made. •See Articles 611 and 637 of the Civil Code and articles 491 of the Commercial Code. •Articles 409-419 - Seizure - Corresponding provisions in C.P.C. 1908: - oExecution of Decrees and Orders - O. XXI oAttachment - r. 41-57 Article 410 – Procedure to order seizure - He who applies for seizure shall state the grounds for the same, and shall list, if possible, the assets or objects which are required to be seized; with an indication of their value and with the particulars and numbers, that the properties have in the Land Registration Office or with necessary indication that will serve as its description. After production and examination of the evidence, the seizure shall be ordered without hearing the opposite party, if the legal requirements are satisfied. § 1: If the witnesses offered are not creditworthy in the opinion of the judge, he can, even before hearing them, order that other witnesses of recognized probity be produced. § 2: When the judge finds that the assets intended to be seized are more than sufficient to serve as security for the obligation, he shall reduce the security to reasonable limits. The debtor shall never be deprived of his income strictly indispensable for the maintenance of the family and the expenses of the suit that shall be fixed in terms of Article 393 and the following.

Article 411 – Guarantees to be furnished by applicant - The seizure shall not be effected,

without the applicant executing the necessary bond of responsibility for loss and damages, if the application is finally rejected, for having intentionally concealed the truth or for having made assertion contrary to it. The judge may also, when he thinks fit, make the attachment dependent upon furnishing of security by the applicant.

Article 412 – How seizure is effected - Seizure consists in apprehending the assets, observin the provisions relating to attachment. Only those assets may be seized which can be attached. § 1: Whatever be the nature of the assets, they shall always be deposited with a receiver, without prejudice to what is contained in Article 848. § 2: In case of seizure of a ship or its cargo, the seizure shall not take place if the debtor soon offers a security which the creditor accepts or the judge, within 24 hours, adjudges sufficient, by delaying the departure of the ship until furnishing of the security. •See also Article 821, 838 and following of this Code. Article 413 – Effects of seizure - The effects of seizure are the same as attachment. •See also Article 847 of this Code. Article 414 – Objections from opposite party - The person whose property is attached upon being notified of the order which directs the attachment, may appeal from the order or file objections against the seizure and may, simultaneously, use both the remedies. Article 415 – Purpose and procedure for objections and Compensation - The objections shall be filed paragraph wise within a period of 10 days, and are intended specially, either to allege facts which nullify the grounds for seizure, or to ask that it be reduced to reasonable limits when the property seized is more than necessary to secure the debt. If the person whose property is seized does not appeal from the order, he may also, in the objections allege that the seizure should not have been ordered as it did not satisfy the legal requisites. The party who has applied for seizure may answer the objections within a period of 5 days starting from the day when he is furnished with the objections in duplicate and shall follow, without any further pleadings, the terms of summary proceedings. § Sole Paragraph: When in the objections, the grounds for the attachment are challenged, the person raising the objections may allege that the person who has applied for attachment and his witness have consciously abstained from the truth and pray that a fixed amount be ordered to be paid to serve as compensation against loss and injury. In such a case, the witnesses shall be summoned to contest the objections; if the objections are allowed, the applicant and his witnesses who had proceeded in bad faith shall be jointly and severally ordered to pay compensation for loss which appears reasonable.

SUB - SECTION II SPECIAL PROVISIONS RELATING TO ATTACHMENT AGAINST TREASURERS, CASHIERS OR DEBTORS OF THE GOVERNMENT OR OF LOCAL AUTHORITIES

Article 416 – Seizure on account of defalcation by public officials - Against treasurers,

cashiers or any other employees who hold the charge of money or valuables of the state or of the local authorities, the Public Ministry shall apply for attachment when they are found to have engaged in defalcation. Similar proceedings may be instituted by the Public Ministry against the debtors of the Public Treasury, by enforcement of their contract, and against their sureties. § 1: The existence of the debt shall be proved by certificate of the record of the inspectors, the account, or the condition of the contract. § 2: For this seizure to be made, it is not necessary to sign the bond, nor to prove the reasonable apprehension of insolvency, nor even the concealment of the assets. Article 417 – Seizure due to defalcation by representatives and sub lessees - The right that the previous article confers in the Public Ministry may, in the same manner, be exercised by the treasurers, cashiers and any employee who hold the charge of money or valuables of the government or the local authorities, against their representatives and by the bidders of fixed receipts of the government against their sub lessees. Article 418 – Imprisonment of guilty person - In case of defalcation, the Public Ministry shall apply, apart from seizure, for imprisonment of the guilty, and the same may be done in relation to their representatives of treasurers, cashiers and other receivers of money and valuables of the State or local bodies. The seizure shall be lifted and the imprisonment shall cease as soon as security is furnished for payment of the defalcation, the imprisonment, being, in no case, extended beyond two years. Article 419 – Special procedure of seizure when the settlement is with the Accounts Tribunal - What is stated in clause (1) and (2) of Article 387 is not applicable to seizure dealt under Article 416, when the discharge of responsibility is within the competence of the Accounts Tribunal.

SECTION VII DENUNCIATION OF NEW WORK (EMBARGO)

Article 420 – Objection to new construction - Whoever feels threatened in his right to the

property, singular or joint, perfect or imperfect, or to its possession or enjoyment, as a consequence of new construction, work or new activity which may cause prejudice to him or the manner of execution may cause him prejudice, may apply within 30 days from the knowledge of the fact that the construction, labour or activity be ordered to be suspended immediately The interested party may also make denunciation out of court, by issuing verbal notice, in the presence of 2 witnesses, to the owner of the work, or in his absence, to the person entrusted with the construction or who is in charge, not to continue with the work. The denunciation shall be of no effect, if within three days no ratification through court is demanded. Article 421 – Objection by Municipalities - The municipalities may use the remedy of article 420 against works, construction or buildings done by the private parties in contravention of municipal regulations and bye-laws. Article 422 – Works not subject to objection - The works of the government in public land nor the works of the local authorities in the lands of the common use, or the works undertaken on the land acquired by the government cannot be stopped, whoever may be the executor of the work. § Sole Paragraph: The right of compensation for damages to the aggrieved parties is safeguarded. Article 423 – How to file the objections - The applicant shall support the claim in accordance with articles 420 and 421. The Judge, if found necessary, may demand summary proof of the allegations made in the petition and may also hear the owner of the work. Article 424 – Undertakings from applicant - The court shall not order nor ratify the objection without the applicant undertaking to pay damages. The judge may, if it is found convenient, direct the applicant to furnish security. Article 425 – Objection from the Opposite party - From the order which directs the suspension of new construction or ratifies the denunciation or which rejects the application for denunciation,

appeal lies in terms of general law. The owner of the work may file his objections :- 1) When the case falls under article 422; 2) When the denunciation of new work, objection or the ratification have been applied beyond limitation period. § 1: The form as to how the Objection is to be filed and processed is governed by article 415. § 2: The controversy in the denunciation of new work is solely, in the case of No. 1 whether the provision of article 422 has been breached, and in case of clause no. 2, whether the objection was raised within time. § 3: In the case of clause no. 1 as well as clause no. 2 the owner of the work may apply in her objection that he may be awarded a certain amount as compensation for damages sustained by him on account of suspension of work. •Articles 425 Sole para - Compensation, for wrongful attachment - Corresponding provisions in C.P.C. 1908: - oCompensation for obtaining arrest, attachment or injunction on insufficient grounds – S.95 Article 426 – How objection is raised or ratified – The objection shall be made or ratified by way of a written report which faithfully and precisely reflects the state of the work and its measurements are clearly specified, wherever possible. Notice shall be issued to the owner of the work or, in his absence to the agent or any other person in his place, not to proceed with the work. § 1: The judge, shall be present at the time of denunciation of new work, if the party so applies. § 2: The report shall be signed by the judge; whenever he is present or by the officer who draws it and by the owner of the work or any other person who carries out the work, if the owner is not present. When the owner of the work and his agent are not in a position to sign or do not want to sign two witnesses shall intervene. § 3: The party who applied for denunciation of new work and the opponent may, at the time of denunciation at the site click photographs indicating the state of the work, to be annexed to the court file. In this case specific mention will be made of this fact and also name of the photographer and identification of the film.

Article 427 – When can the work be allowed to continue - Once the work is stopped, the

construction may be authorized, on the application of the opponent, when it is found that the

demolition will give to the applicant / Objector the status prior to the continuation or when it is found that the damages caused by the stoppage of the work is a greater than by its continuation and in both the cases security may be furnished and with further security of the amount required for total demolition. Article 428 – Action in case of violative further construction - If the person objected against continues the work, without permission, after the notice and during the period the order subsists, the applicant may pray that whatever has been constructed after the Objection be demolished. Once there is satisfactory evidence by way of appointment of experts or witnesses, when it is found that the former method was not sufficient, the judge may direct that the work shall be placed in the previous status, without prejudice to the criminal liability of the owner of the work. SECTION VIII AFFIXATION OF THE SEALS, ENLISTING AND APPOINTMENT OF RECEIVER

Article 429 – Grounds for sealing and enrolment - Where there is just apprehension of

concealment or dissipation of any assets, mobiliary or immobile, or even of documents, the imposition of seals and of the enlisting of the same may be applied for. •Articles 429-435 – Seals, Enlisting and Receiver - Corresponding provisions in C.P.C. 1908: - oAppointment of Receiver – O.XL oSupplemental proceedings – S.94(d) Article 430 – Who may apply – Security to be furnished - Such measures may be applied for by any person who may have interest in the preservation of the assets, but they shall not be granted unless the applicant executes indemnity bond for losses and damages. However, the bond shall not be necessary: 1) when steps are taken for the benefit of a legal person, or collective entity; 2) when the measure is sought as a preparatory act before filing of an inventory. § Sole Paragraph: The creditors are permitted to apply for listing in case of recovery of an inheritance.

Article 431 – Procedure for ordering preventive measures - The applicant shall satisfy the

court as to his interest and indicate the grounds for the relief. After production and examination of the evidence, the judge shall order preventive measures, if he is satisfied that without them, the interest of the applicant runs serious risk. In the order, which directs the sealing and the enlisting, the judge shall appoint one valuer and a receiver. § 1: When the measures are sought in anticipation of filing of inventory, it is not necessary that the applicant produces evidence, but the judge may ask summary proof of the facts pleaded. § 2: When the sealing and enlisting are applied in anticipation of petition for interdiction on account of insanity, of deaf dumbness, for the proof of legitimate paternity or maternity, after the death of supposed father or mother, suit for declaration of nullity of will or gift, the measures shall not be ordered unless the applicant satisfies about maintainability of the main action. § 3: Before ordering the sealing and enlisting, the judge may call for the say of the person who is in occupation or possession of the assets if he is of the view that such hearing of the say will not defeat the ends of justice.

Article 432 – How enlisting is done - The enlistment consists of description, valuation and

deposit of the assets. A record shall be prepared in which description will be done item-wise as in inventory proceedings, showing the value indicated by the valuer and handing over of the assets to the receiver. The possessor or occupier shall remain present, if he is present at the site, or it is possible to call him, and if he desires to remain present. The interested party may be represented by an advocate; and for this purpose oral statement of the party will be sufficient and shall be mentioned in the record prepared. § 1: The Judge may preside over the listing if any of the parties so apply. When the judge’s presence is solicited the possessor of the property at the time of enlisting, and the judge is unable to attend, sealing shall be done, on the door of the premises where the goods are found or on the moveables wherein the object which are subject to loss, the receiver shall be entrusted with the custody and the enlisting will be carried out on the day fixed for the purpose. § 2: All the events during the operation of enlisting shall be noted in the record, and the record shall be signed by the judge, when he presides on, by the clerk, who draws the record, by the

receiver, and by the possessor of the assets, if he is present, in presence of two witnesses when not signed by the judge or by the possessor of the properties. Article 433 - Imposition of seals - Besides the case foreseen in the § 1 of the previous article, the imposition of the seals shall take place: 1.When there is urgency in the listing and it is not possible to carry it out immediately; 2.When the listing cannot be concluded; 3.When it is a case of objects, papers, or values which are not necessary for use or do not sustain the loss if there premises are closed. In such case the objects kept in boxes sealed with wax will be deposited in the establishment where the judicial deposits are made.

Article 434 – Receiver - When there is a case of making of an inventory a person shall be

appointed to be receiver and who may be fulfilling the position of head of the family in relation to listed assets. In other cases, the receiver will be the possessor himself or the holder of the assets unless there is manifest inconvenient in the assets being entrusted to him. § Sole Paragraph: The list may shall constitute the description of assets in the inventory. •Civil Code Articles 2068 to 2070. Article 435 – Objection from the possessor or holder of assets - If the possessor or the holder of the assets was not present at the time of carrying the steps, he shall be notified of the order which granted the listing, as seen as soon as work is concluded. The possessor or holder may appeal from the order or raise an opposition by way of objection in accordance with article 414 and 415, and the time limit start from first intervention or issuance of the notice. SECTION IX SECURITY BONDS SUB SECTION I FURNISHING OF SECURITY BOND Article 436 – Modes of furnishing bonds - When the law does not designate type of the

security, the same may be given, by way of deposit of money, credit, instrument, precious stones or metals or also mortgage, pledge or bank guarantee. When the guarantee is given by way of mortgage the certificate of provisional registration shall be produced. § 1: In the assessment of suitability of the security furnished by way of mortgage or deposit of the credit instruments, precious stones or metals, the depreciation which the assets may undergo as a result of compulsory sale, as well as expenditure towards the sale which may take place shall be taken into consideration. § 2: Once the value to be offered as a guarantee and the type of guarantee is fixed the same shall be considered as furnished after the deposit or delivery or the endorsement of final registration or mortgage. •Articles 436-452 – Security - Furnishing, reinforcing security is much more detailed - Corresponding provisions in C.P.C. 1908: - oSupplemental proceedings – S.94(a) & (b) oArrest and attachment before judgement – O.XXXVIII oSecurity for costs – O.XXV

Article 437 – Demand to furnish security - Whoever proposes to demand the furnishing of

security shall declare the ground for which it is asked, as well as the amount of security, and shall apply that person liable to furnish the security be summoned within 10 days to file his objections, failing which the request is deemed as admitted. Article 438 – Procedure where there is no objection - If the defendant does not contest, he will be immediately directed to furnish the security for the amount indicated in the petition and to declare in what manner he wants to furnish the guarantee. The plaintiff may give his say on the suitability of security and after strictly necessary steps, the order shall be passed. If the defendant does not make any declaration, the plaintiff may seek seizure or registration of mortgage over the assets of the defendants. § Sole Paragraph: To the seizure directed in terms of this article, articles 409 to 411, 414 and 415 shall not be applicable.

Article 439 – Procedure in case of opposition - In the event the defendant contests the demand, the plaintiff may reply and the issue shall be immediately decided, after necessary steps. Once it is found that the defendant is liable to give guarantee, he shall be notified to challenge or accept the value and to furnish the security. The plaintiff may rejoin and the judge shall fix the security after taking necessary steps. When the defendant does not offer any security the provision of last part of the previous article shall be applicable. Article 440 – Procedure when only amount is disputed - When the defendant challenges only the value, he shall indicate the manner in which security will be furnished, failing which the objection shall not be admissible and provision of last part of article 438 shall be applicable. The plaintiff may rejoin and then whatever is provided in the second part of the previous article shall be followed. Article 441 – Procedure for voluntary furnishing of security - In the event the person who is liable to offer the security is ready to furnish the same the plaintiff shall indicate in the plaint, besides the ground for furnishing the security, the amount to be secured and the manner in which it is to be furnished. The person in whose favour security is given, within 10 days may challenge the amount offered or fitness of the guarantee. If the person summoned does not file any objection, the security furnished will be held suitable. If the value and the suitability of security or either of them is disputed, the plaintiff may reply as to the objection and then matter will be decided after such inquiry as deemed necessary.

Article 442 – Security in favour of legally disabled persons - Whatever has been provided in the preceding article is applicable to the security to be furnished by parents, curators, administrators, or curators of the minors, interdicted or absentees, in respect of assets listed or indicated in the inventory, with following modifications: a) The security shall be offered as attachment to the proceedings of enrolment or inventory; b) If the representative of incapable or of the absentee does not indicate the security to be offered, what is provided in the civil law as to the person not willing or not able to furnish the security

shall be observed; c) The powers of the judge in relation to fixation of the quantum and appreciation of suitability of the security and necessary steps to be taken shall be exercised by the council of family when it falls within domain of such council. Article 443 – Security as part of a cause - When in any pending cause there is ground for any party to furnish security in favour of other, the interested party shall apply for such furnishing of the security indicating immediately, the amount to be secured and the type of security which is to be furnished. The opposite party shall be heard and he will give his say about the suitability of the security. § 1: The incidental proceeding shall be attached to the main proceedings. § 2: In this case the security may be furnished by a suitable surety, though not by way of bank guarantee.

Article 444 – Fixing of security - If the opposite party does not raise objection, the security

furnished shall be deemed as suitable and that the security is deemed as furnished as soon as the instrument of security is placed on record. If there is an opposition the applicant may reply within 3 days and after taking necessary steps within further 3 days carryout absolute indispensable steps, the security to be furnished shall be fixed. Article 445 – Furnishing security to object to dissolution of legal entity - What is provided in the preceding 2 articles, with the exception of Paragraph 2 of article 443, is applicable to the case of anonymous society wishing to exercise right conferred by the second part of Paragraph 4 of article 120 of Commercial Code, to avoid the winding up applied by creditors. The suit for dissolution will come to the end as soon as the society furnishes the guarantee which is held as fit. SUB SECTION II REINFORCING SECURITY Article 446 – When reinforcement can be sought - Whenever the mortgage becomes

insufficient on the grounds not attributable to the creditor and the latter desires to demand the reinforcement to the security, he shall justify his claim and shall indicate in the application, the quantum of depreciation of the mortgage assets and consequently the amount of reinforcement to the security which he desires to obtain. The debtor shall be summoned to contest the request or challenge the quantum of reinforcement to the guarantee and indicate the assets which he is offering. Article 447 – Procedure when application is opposed - If the defendant opposes the application, upon effecting the valuation of the assets or any other procedural step which is found necessary it will be decided whether the mortgage requires reinforcement of security. After deciding quantum of reinforcement is necessary, the debtor shall be notified to challenge the value indicated by the plaintiff and offer the assets which he gives as reinforcement to the mortgage. The plaintiff may rejoin and the judge shall decide after taking necessary procedural steps. § Sole Paragraph: The challenge to the valuation shall not be admitted when the defendant does not immediately offer in what manner he proposes to give reinforcement to the security. Immediately thereafter provisional registration of mortgage shall be done over the assets offered by the defendant. Article 448 – Procedure where objection is only as to value - If the defendant challenges only the valuation, he shall indicate immediately the assets which he proposes to offer to reinforce the mortgage failing which the objection shall not be entertained. The plaintiff may rejoin and thereupon what is provided in the last part of the previous article shall be followed. The procedural steps shall be the same when the defendant does not contest the prayer not challenge the valuation, but he offers assets for the purpose of reinforcing the mortgage.

Article 449 – Procedure where there is no opposition - If the defendant neither raises any

objection nor offers any asset or if the asset offered by him are found to be insufficient, the following shall be observed: a.) The registration of mortgage over other assets of the debtor shall be permitted or seizure shall be carried out, if the debtor has no sufficient immovable assets when mortgage was created for

securing future and eventual liabilities. b.) If the mortgage has been created as security of any obligation already contracted, the same will be declared recoverable as if the liability is already crystallized. § 1: The execution whenever there is place for the same, shall be followed as based on mortgage in the same proceedings. § 2: To the seizure ordered in accordance with this article the provisions of articles 409 to 411, 414 and 415 shall not be applicable.

Article 450 – Reinforcement of pledge and guarantee - What is provided in the previous

articles is applicable to the reinforcement of the pledge and of the guarantee admitted by articles 860 clause no. 4 and 825 of the Civil Code, In the case of reinforcement of the pledge, the defendant may offer mortgage instead of another pledge; in the case of reinforcement of guarantee he may furnish any other type of security. Article 451 – Reinforcement of security furnished in Court - If the security has been created by Court, the reinforcement shall be applied for in the same proceedings, and the provisions of preceding articles and also the part applicable, of what is provided in clauses (b) and (c) of article 442 shall be applicable. Article 452 - Reinforcement of security furnished as part of proceedings -When the security has been furnished by one of the parties in favour of the other as an incidental proceedings of the cause, the reinforcement shall be applied in the same proceedings by observing with necessary adaptations the steps prescribed for furnishing security. •See also Article 443 of this Code. SECTION X DEPOSITS AND PROTESTS Article 453 – Deposit preparatory to suit -The deposit for the purposes of article 1423 of the Civil Code and 474 of the Commercial Code and similar provisions shall be made on the application of the interested party. As soon as the deposit is made, notice shall be issued to the

person with whom the depositor is in dispute. Article 454 – Effect of deposit - The deposit does not admit any opposition. The person notified, however, shall file the suit against the depositor within 30 days from the deposit failing which the question is considered as decided in favour of depositor and under the terms proposed by him. Article 455 – Lodging of protests - The protests in order to stop running of prescription and for any other purposes may be effected by means of sundry notice, in accordance with article 261. The protest does not admit opposition.

SECTION I COSTS Article 456 – Liability for costs -The judgment which decides the suit or any of its incidents, shall award costs in favour of successful party, in proportion fixed by the court. If many plaintiffs and defendants have lost the case, they are liable to pay the costs in equal parts, unless there is a apparent difference in the degree of their participation in the cause, because in such case the costs shall be distributed according to the measure of participation. In case parties are held joint and severally liable, the joint and several liability shall extend to the costs. •Articles 456-468 – Cost, fines and damages are in much greater detail - Corresponding provisions in C.P.C. 1908: - oCosts – S. 35, oCompensatory costs in respect of false or vexatious claims or defences – S.35A oCosts for causing delay – S.35B oPayment into court – O.XXIV oCosts – O.XX-A oSecurity for costs – O.XXV Article 457 – Acts and steps which do not count for costs - The liability of the defeated party does not extend to costs for superfluous acts and incidents, nor to the steps and acts which have been repeated on account of fault of any judicial officer, nor even to the costs towards

adjournment of the judicial act on account of absence of the person who ought to have appeared. § 1: Acts and incidents, unnecessary for declaration or defence of the rights should be taken as superfluous. The costs of such acts will be on the account of the one who applied for the same. The costs of other acts which are excluded shall be paid by the employee or respective person. § 2: The officer who has given cause for annulment of the act shall be answerable for annulment, besides disciplinary liability. Article 458 – Costs on Plaintiff - When the defendant has not given cause to the suit and he does not contest the suit, the costs are paid by the plaintiff. It is understood that the defendant did not give cause to the suit: 1: When the plaintiff does not assert the existence of any previous obligation of defendant and proposes to simply exercise a legal right; 2: When the obligation of the defendant accrues only after service of summons or after institution of the suit as declared in clause (a) and (b) of article 662; 3: When the suit is not founded on any illicit fact committed by the defendant. 4: When the plaintiff, being armed with a title with executive force, unnecessarily uses a suit for declaration. •See also Article 46 of this Code. Article 459 – Distribution of costs - If the opposition of the defendant was founded when the cause has arisen but on account of supervening circumstances ceased to be operative, each party shall pay the costs in relation to the acts done during the period in which there was unjustified activity. Article 460 – Costs in case of admission, abandonment or compromise - When the suit ends by abandonment or admission, the costs shall be paid by the party who abandoned or admitted the claim. And if the abandonment or admission was partial, the liability towards costs shall be proportionate to the part of abandonment or admission. In the case of compromise, the costs shall be borne equally except if otherwise agreed upon. Article 461 – Liability of assistant for costs - Whoever has intervened in the suit as assistant

shall be awarded, if the assisted party looses the case to the extent of proportionate share of the costs shall be payable by the latter, in proportion to the activity which he has exercised in the proceedings, but never exceeding (1/10) one tenth. Article 462 – Costs of preventive and conservatory proceedings, conciliation and

notifications - The costs of preventive and conservatory proceedings shall be paid by the

applicant when there is no opposition, but shall be taken into consideration in the suit instituted. If there is opposition, what is provided in article 456 shall be followed. § 1: The costs of settlement shall be paid by the defendant when he acknowledges the right of the plaintiff and to the extent to which there is acknowledgment. § 2: The costs of sundry notices shall be paid by the applicant.

Article 463 – Payment of legal fees through costs - The attorney on record and technical

experts of the winning party may apply that amount due to them towards fees, expenses and advances made, total or partially, be satisfied from the costs recoverable from the losing party. If they apply for the same, winning party will be heard and decision will be passed. § Sole Paragraph: If the winning party disputes the amount of credit in favour of attorney, only the portion not disputed shall be paid. Article 464 – Security of costs - The costs always shall be deducted from the amount realized from the assets and when the costs arise from contract, only after the payment, the execution can be enforced, a certified copy or any other document, which demonstrates satisfaction of the decision with or which the same document may be executed and registered. SECTION II FINES AND DAMAGES Article 465 – Liability in case of bad faith in litigation – Definition of Bad faith – If the party has filed vexatious proceedings, fine shall be imposed on him and compensatory costs to the adversary, if the latter demands it. A litigant is considered to be in “bad faith”, not only if he who puts up a claim or raises an

objection, of which the lack of foundation, he could not be reasonably ignore, but also who has consciously altered the true facts or omitted essential facts and who has made use of the wrong proceedings or remedies the purpose of obtaining illegal objective or has impeded the course of justice or the discovery of the truth. § Sole Paragraph: The winning party may also be considered a litigant in bad faith, even in the main suit, when he has acted with instrumental malice. Article 466 – Contents of damages - The compensation by way of damages may consist: a) In the reimbursement of the expenses occasioned to the opposite party, by the malafides involved, including the fees of the Advocate and Technical experts; b) In the satisfaction of the remaining losses sustained by the opposite party; The judge shall direct payment of the damages which may be found adequate to the conduct of the losing party, fixing it always in specific amount. § 1: If there is no data for fixing the amount of the damages in the judgment after hearing the parties they shall be fixed by the judge at his prudent discretion, as deemed reasonable and reducing to just limits the items of expenditure and fees quoted by the party. § 2: The fees shall be paid directly to the advocate except it is found that they are already paid by the client. Article 467 – Liability of representative of legally disabled or of collective persons – When the party is legally disabled or a collective person, the liability for costs, fine and damages shall be on their representatives, if they have acted in bad faith.

Article 468 – Liability of advocate - When it is found that the mandatary of the party had

personal and direct responsibility which revealed bad faith in his part, the matter will be reported to the Bar council of the advocates or body of solicitors (legal advisors), in order that they apply respective penalties and punish the mandatary to the extent of their share in the costs, fine and damages which they deem fit.

SECTION I COMMON PROVISIONS

Article 469 – Common and special proceedings – Proceedings, as far as form is concerned,

may be common proceedings or special proceedings. Special proceedings applies to cases expressly specified in the law; common proceedings applies to all other cases to which special proceedings are not applicable. Article 470 – Types of common proceedings – Common proceedings are ordinary, summary and concise. SECTION II PROCEEDING FOR DECLARATION Article 471 – Applicability of ordinary, summary and concise - If the value of the suit exceeds the pecuniary jurisdiction of the High Court, the procedure to be used is of the ordinary proceeding; if it does not exceed, the procedure to be used is of, summary proceeding, except if it does not exceed 3.000$ and the suit is meant for recovery of debt, compensation for damages and delivery of mobiliary things, in which case the proceedings to be used are concise proceeding. § Sole Paragraph: In the concise proceeding the damages shall be computed always in specific sum. Article 472 – Provisions regulating special and summary proceedings - Summary proceeding and special proceeding are governed by the provisions which are exclusive to them and also provisions which are general and common; and in all the remaining which is not provided in either of them, the form prescribed for ordinary proceeding shall be followed. As far as appeals, the regime of summary proceedings is applicable, with following exceptions: a) If the value of the suit exceeds the pecuniary jurisdiction of the High Court, appeal shall lie to

the Supreme Court, as in the case of ordinary proceeding; b) If, as per the law, from a particular stage ordinary proceeding is to be followed, the regime of appeal is to be adopted integrally, right from the beginning.

Article 473 – Provisions for concise proceedings - To the concise proceeding, besides the

provision peculiar to the same, the general and normal provisions shall apply; when they are silent or insufficient, in the first place whatever is provided for the summary proceeding shall be followed and in the second place, whatever is provided for ordinary proceeding shall apply. SECTION III EXECUTION PROCEEDINGS Article 474 – Ordinary, Summary and Concise execution – Executions, value of which exceed the pecuniary jurisdiction of the High Court, are subject to ordinary form. Executions based on judgment passed in proceedings of summary nature are subject to summary form, and so are those based on other instruments when they do not exceed the pecuniary jurisdiction of the High Court. Judgment passed in concise proceeding are subject to execution in concise form. Article 475 – Regulation of various types and forms of execution – To the execution for the delivery of something and performance of an act, the provisions relating to ordinary form of execution for payment of a certain sum are applicable, to the extent permissible. In respect of regime of execution, summary and concise, for payment of certain amount, the provisions of article 472 and 473 are applicable; to the execution, summary and concise, for the delivery of certain thing, the regime of execution of ordinary form for delivery of certain thing shall be applicable, but the periods are the same which have been provided, respectively for the execution, summary and concise, meant for payment of specified amount.

TITLE II DECLARATORY SUITS SUB TITLE I CONCILIATION Article 476 – Prior attempt at conciliation - Before filing the suit, the plaintiff may make an attempt for conciliation, provided settlement is legally permitted and all the defendants reside within the jurisdiction of the same local court of peace. § Sole Paragraph: The representatives of collective bodies, of legally disabled and absentees may compromise only within the precise limits of their powers or with previous permission of the competent authority empowered to grant it. Article 477 – Application and summons for settlement - The plaintiff, briefly explaining the prayer and its grounds, shall apply to the court of peace of the domicile of the defendant for summons to be issued for the purpose of settlement. The justice of peace shall fix the date, time and place for the settlement which shall take place within the next eight days and shall send summons to the defendant to appear, keeping at least a gap of three days between the date of issuance of summons and the date fixed for appearance. The notice of the order so passed shall be given to the plaintiff. Article 478 – Subsequent steps - If the parties appear personally or through attorney, with the powers to compromise over the subject of litigation, the justice of peace shall attempt to arrange settlement between them, and if he succeeds, in totality or in part, he shall direct to make a report in writing in which the terms and condition of the settlement is to be specified with precision and clarity. If some of the parties do not appear, or there being no settlement, report shall be drawn in the same manner, recording all the happenings.

Article 479 – Record of conciliation or failure thereof - The report shall be written by the

office after the note of service which is to be annexed to the application. When there is a settlement, the report shall be signed by the judge, by the clerk who has drawn the report and by

the parties or by two witnesses when the parties are unable to write; in other cases, the signature of judge and the clerk are sufficient. § 1: If there is a settlement, total or partial, the application as well as the report shall be transcribed in the book meant for the purpose. The book shall be initialled by the judge on all pages and it shall contain the note of opening and the note of closing, signed by him. When complete, it shall be remitted to the court of Judicial division for the purpose of being archived. § 2: The documents of power of attorneys shall remain archived. § 3: From the book, certified copies may be issued as applied for, there being no need to transcribe therein the text of the powers of attorney. SUB TITLE II ORDINARY PROCEEDING

SECTION I INITIAL PETITION (PLAINT) Article 480 – Function and purpose of initial petition - The prosecution of a suit is initiated by a petition in which the plaintiff shall set up his foundation and the relief in the suit. In the initial plaint the plaintiff shall:

1. (1) Indicate the court before which the suit is filed;
2. (2) Identify the parties;
3. (3) Indicate the form of procedure;
4. (4) Plead in clear terms and precision the facts and the legal reasons on which his contentions are based;
5. (5) Formulate the relief with all precision;
6. (6) Declare the value of the suit;
7. (7) Satisfy the requirements of the Revenue laws; § 1: The grounds of the suit shall be pleaded by the numbered paragraphs. § 2: The prayer shall be formulated in such a manner that no doubt arises about juridical effects of declaration or creation of rights which is proposed to be obtained; and if the suit is for some direction, it is necessary to specify the obligation to be complied with by the defendant. § 3: If the suit is based upon a document signed by the defendant, the plaintiff shall apply that the defendant is summoned to admit or denial the name of the firm or signature. •Articles 480-486 – Plaint - Corresponding provisions in C.P.C. 1908: - oPlaint – O.VII

Article 481 – Dismissal in ‘ limine’ - The petition shall be rejected in ‘limine’:

1) When it is found the plaint is defective; 2) When there is absolute lack of jurisdiction of the court, the lack of personality, or lack of capacity of the plaintiff or defendant or of his “locus standi”; 3) When the suit is filed beyond the limitation period or when by any other ground, it is evident that the suit of the plaintiff was bound to fail. § 1: If the form of procedure chosen by the plaintiff does not correspond to the nature or to the value of the suit, then direction to be issued to adopt the adequate form. But where the plaint cannot be made use of for such form, it shall be rejected. § 2: From the order of rejection, appeal lies. The decision of the superior court shall be final in the cases of no.1 and 2 and paragraph 1; in case of no. 3 appeal may go upto the Supreme Court, whichever may be the value, the appeal filed against the rejection and the final decision, when favourable to the plaintiff, only secures the prosecution of the suit. Once the appeal from order is filed, immediately the defendant will be summoned for the purpose of the appeal as well as for the purpose of the suit, if the same is to be prosecuted. If the order is revoked, the notice will go to the defendant as soon as the file reaches the office and time for filing the written statement shall start from the date of service of notice. § 3: If the plaintiff, instead of filing appeal from order from the rejection order, presents another petition within 3 days, the suit is deemed to be filed on the date of the first plaint was presented in the office.

Article 482 – Irregular or deficient plaint - When there are no deficiencies foreseen in the

previous article, but the plaint cannot be accepted on account of lack of legal requisites or because it is not accompanied by required documents or there are irregularities or deficiencies

which are likely to affect the success of the suit, the plaintiff may be asked to supply the deficiency or make the corrections, fixing the time for the presentation of the new plaint. § Sole Paragraph: If the new plaint is presented within the fixed time, what is provided in Paragraph 3 of the preceding article shall apply. Article 483 - Issuing of summons - If there is no room for immediate rejection and the plaint is in condition of being received, summons for service on the defendant shall be ordered. Before the issuance of summons, the stage of distribution take place provided the plaintiff has so applied. In such case, the head of the office, immediately shall present petition and direct the issuance of the summons. After such compliance, the file will be sent for distribution. § 1: The order referred to in this article and two previous articles shall be passed in five days next to the presentation of the plaint to the judge. § 2: Appeal from order lies from the order which directed service of summons to the defendant. Even though no appeal is filed, the questions which could be raised for rejection of the plaint cannot be considered as finally decided.

Article 484 – Summons to defendant - The defendant shall be summoned to contest the

proceedings. At the time of service the defendant shall be cautioned that non presentation of written statement, amounts to admission of the facts pleaded by the plaintiff. Article 485 – Effect of summons - The service of summons shall have the following effects:

1. (a) Prescription is interrupted;
2. (b) Good faith of the possessor comes to an end;
3. (c) The debtor is considered as a defaulter when the fulfillment of the obligation does not depend upon the specific time;
4. (d) The essential requirements of the suit become crystallized in accordance with article 268;
5. (e) Bars the defendant from filing against the plaintiff, any suit in relation to same juridical relation. Article 486 – Steps when summons are annulled - The effects mentioned in the previous article are maintained, even though the summons served has been annulled, if the defendant was served with the summons afresh within 30 days from the earlier judgment declaring the service null and void has been passed and became res judicata. SECTION II ABSENCE OF THE DEFENDANT

Article 487 – Duty of Court where Defendant remains absent - If the defendant does not

appoint an advocate, nor file written statement within the limitation period, the court shall verify whether service was made with all legal formalities, and in the event it is found that there are some flaws, direct repetition of the same. •Articles 487-489 – Absence - Corresponding provisions in C.P.C. 1908: - oAppearance of parties and consequence of non-appearance – O. IX Article 488 – Effect of non-appearance - If the defendant, having been summoned or considered to have been summoned in person with legal formalities, does not contest, the facts pleaded by the plaintiff, are deemed as admitted. The proceeding shall be made available for examination of the plaintiff for a period of eight days, firstly, to the advocate of the plaintiff, and then to the advocate of the defendant, to submit their arguments in writing and thereafter the judgment will be passed in accordance with the law. Article 489 – Cases in which effect of default does not take place - What is provided in the previous article shall not apply:

1. (1) When there being many defendants, one of them contests;
2. (2) When the defendant or some of them are incapable, or is a public body mentioned in article 32 of the Civil Code;
3. (3) When the wish of the party is not sufficient to produce the legal effect which is intended by suit;
4. (4) When there are facts which have to be proved only by the way of authentic or authenticated document and until same document is produced. SECTION III WRITTEN STATEMENT SUB SECTION I GENERAL PROVISIONS Article 490 – Time limit to contest - The defendant may contest by disputing facts or raising defence within a period of twenty days. § 1: The time for defence starts after the end of extended period of limitation when service is

extension has been applied on the ground that information which is required could not be obtained and the reply to consultation made to higher authorities is awaited. •Articles 490-505 – Written Statement - Corresponding provisions in C.P.C. 1908: - oWritten Statement, Set-Off and Counter Claim – O.VIII Article 491 – Defence by dispute or by exceptions - The defendant defends when he denies the facts pleaded in the plaint or when asserts that such facts do not produce the juridical effect as sought by the plaintiff. He raises defence by way of exceptions when he pleads new facts which prevent appreciation of the merits of the case or granting of the relief sought by the plaintiff. § Sole paragraph: The pleading is called written statement, in the both the cases i.e. when the defence is by way of contest or by way of exception. •Articles 491-494 – Admissions - Corresponding provisions in C.P.C. 1908: - oWritten Statement, Set-Off and Counter Claim – Denial to be specific – O.VIII, rr.3-5 Article 492 – Requisites of written statement - In the written statement the defendant shall refer to the suit and explain with great clarity and concision of the facts, the grounds of law and conclusion of the defence. § Sole Paragraph: The grounds should be pleaded by way of numbered paragraphs. Article 493 – When defences should be set up - All the defence shall be set up in the written statement other than the exceptions and incidents required by law to be raised earlier.

After the written statement it is permissible to raise exceptions, incidents and means of defence which are supervenient, or which the law expressly admits after such time or cognizance of which can be taken by Court of its own notion. § Sole Paragraph: Supervenient facts are those which have taken place subsequent to filing of the written statement as well as the facts which the defendant came to know only after the time limit of filing of written statement and in such case it is incumbent on the defendant to satisfy about the supervenience. The supervenient defence shall be pleaded, same provided to the contrary, within 10 days subsequent to the facts occurred or the defendant took cognizance of the same. Article 494 – Position of Defendant as to facts pleaded by Plaintiff - The defendant is bound to take definite position in respect of facts pleaded in the plaint. Those facts which have not been denied specifically are deemed as admitted by concurrence, unless they are in manifest opposition to the defence considered as a whole, or when admission on some of them is not legally admissible and may be proved only by document. § 1: If the defendant declares that he is not aware whether some specific act is exact, such declaration amounts to admission when the fact is personal or which the defendant should have

known, and it will be deemed to be contested in the contrary case.

§ 2: A written statement by way of denial is not admissible. § 3: What is provided in the second part of the body of the article and in the paragraph 1 is not applicable to an advocate appointed by the court nor to the Public Ministry. Article 495 – Admission or denial of Business name - Where a suit is heard on a document containing obligation signed by the defendant in a Business name in the written statement he shall admit or deny the business name, when he has been summoned for that purpose, it being understood that he admits the business name if he has not made any declaration. If he admits the business name, express or tacitly, but he denies the obligation, the suit shall be decreed provisionally; but the execution shall be stayed until final decree in the event he offers the security by way of deposit or mortgage. § 1: What is provided in the first part of this article shall not apply when the defendant has been summoned in the capacity of heir or representative of any signatory of the business name and he

was incapable or service was done by way of publication. § 2: If it is found that the business name denied by the defendant is true he shall be held acting in bad faith. Article 496 – Order in considering defence – When the defence is against the institution of the suit and against the prayer, the former defence should precede the one which is only related to dismissal of the prayer. Article 497 – Time for defence when there are many defendants - If the time for filing written statement ends on different days for different defendants, the written statement of all of them or each of them may be presented till the end of the period for the defendant served last. SUB SECTION II EXCEPTIONS Article 498 – Dilatory and peremptory exceptions - The defences may be dilatory or peremptory. The dilatory/(technical) defences are those which prevent the court from taking cognizance of merits of the case and gives rise to dismissal of the suit other than on merits or to the transfer of the suit to the other courts; the peremptory defences are those which give rise to dismissal of the suit on merits because of the existence of facts which prevent the court from granting relief or nullify juridical effect of the facts pleaded by the plaintiff. Article 499 – Dilatory defences - Amongst others, the following defences are dilatory:- a) The nullity of the entire proceedings; b) Lack of locus standi of any of the parties; c) The lack of judicial personality or judicial capacity of any of the parties; d) The lack of permission or deliberation which the plaintiff should have obtained; e) Non-appointment of an advocate by the plaintiff, in the proceedings referred to in article 33 and the lack, insufficiency, or irregularity of the appointment of pleader who has filed the suit; f) Lack of jurisdiction of the court, either absolute or relative; g) Lis Pendens;

h) Avoidance of the arbitral court; i) Joinder of plaintiffs and defendants when there is no connection as required in articles 29 and 30; j) Non-payment of costs of the previous suit. § 1: The circumstances referred in the clauses (a), (b), (c), (d) and (e) take the nature of defences only when the respective omission or irregularity has not been cured in the manner prescribed at the appropriate places. § 2: The court shall take cognizance suo moto of all the dilatory/ (technical) defences, except territorial jurisdiction, avoidance of arbitral tribunal and non-payment of the cost to the party. Article 500 – Peremptory defences - Among others, the following defences are peremptory in nature; a) Res Judicata; b) Prescription.

Article 501 – ‘Lis Pendens ’ and ‘ Res Judicata ’ - Lis Pendens and Res Judicata pre-suppose the

repetition of the same cause. When there is a repetition of the same suit, there being pending a suit there is a case of lis pendens, if there is a repetition after the decision of the suit by final judgment and the case does not admit normal appeal, there is a case of res judicata. § Sole Paragraph: Lis Pendens and Res Judicata has the purpose of avoiding that the court is called upon to decide or contradict or repeat any previous decision. Such objective shall serve as criteria for the resolution of doubt which may arise over the identity of the two cases.

Article 502 – Requisites of lis pendens and res judicata - There is a repetition of the suit when

there is one suit instituted which is identical to the previous suit, as to the subjects, object and cause of action. § 1: There is a identity of subject when the parties are same in the point of their juridical capacity. § 2: There is identity of object when in one and other suit same juridical effect is sought to be obtained. § 3: There is a identity of the cause of action when the purpose in both the suits proceeds from same juridical act or fact. The cause of action in relation to suits for property is an act or fact

juridical from which the right to property derives in perfect or imperfect ownership. In the suits which are constitutive and of annulment is the fact or specific nullity which is invoked to obtain the purpose in mine. •See Article 2053 of Civil Code

Article 503 – When lis pendens is to be raised - The lis pendens should be raised in the suit

filed subsequently. For that purpose the suit in which the defendant was summoned subsequently, is considered to be filed subsequently. If in both the suits the defendant was summoned on same day, the priority of the suit shall be determined by the entry of the respective suits in the court office. Article 504 – Foreign suit is not relevant - The pendency of a suit in a foreign jurisdiction is of no relevance. Article 505 – Cognizance suo moto - The court shall take cognizance of the res judicata of` its own motion. SUB SECTION - III COUNTER CLAIM

Article 506 – Counter claim - The counter claim is to be filed separately in the written

statement, setting out the grounds and concluding by the prayer, in terms of clause no.4 and 5 of Article 480. •Article 506 – Counter claim - Corresponding provisions in C.P.C. 1908: - oWritten Statement, Set-Off and Counter Claim – Particulars of set-off to be given in written statement – O.VIII, rr. 6, 6A to 6G. SECTION IV REPLICATION AND TRIPLICATION (Rejoinder and Sur rejoinder) Article 507 – Purpose of replication - To the written statement the plaintiff may answer by way of replication.

The replication also serves to the plaintiff to plead all defence in the matter of counter claim. § Sole Paragraph: It is not permissible to file fresh counter claim in answer to the counter claim. •Articles 507-511 – Rejoinder and Sur Rejoinder - Corresponding provisions in C.P.C. 1908: - oWritten Statement, Set-Off and Counter Claim – Subsequent pleadings – O. VIII, r. 9. Article 508 – Filing of replication - The replication shall be submitted by para-wise articles and filed within 8 days from the date provided to file the last written statement. Article 509 – Purpose and filing of triplication - To the replication the defendant may give answer by way of triplication. The triplication shall be submitted by articles para-wise and submitted within 8 days from the date of the submission of the replication Article 510 – Reply to Triplication where there is counter claim - If the defendant has filed any prayer against the plaintiff, he may answer by articles within 8 days in answer to triplication of the defendant in relation to subject of counter claim.

Article 511 – Position of party as to facts pleaded by Opposite party - To the pleadings

referred to in his section, with necessary adaptation, applies what is provided in article 494 and Paragraph.

Article 512 – Instances of Preliminary hearing - After the stage of pleadings is over, the

proceedings shall be placed in the chamber of the judge. If there is any defence, except that of nullity of the proceedings, or if the judge feels that the stage of the suit enables him to take cognizance of the prayer, he shall appoint a day for hearing of the matter, which shall be in any of the following ten days. The parties shall be intimated for personally appearing for the hearing. The party which does not appear or make representation through an advocate with special powers to compromise shall be liable to pay fine. •Articles 512-516 – First hearing - Corresponding provisions in C.P.C. 1908: - oAdmissions – Judgement on admissions – O. XII, r. 6 oDisposal of the suit at the first hearing – O.XV

Article 513 – Sequence of acts in the audience - At the beginning of hearing, the judge shall seek to reconcile the parties, with a view to obtain an equitable solution. If the conciliation is not found possible, the judge shall give an opportunity for say to the advocate for the plaintiff and thereafter to the advocate for the defendant for hearing arguments on the questions raised in the pleadings, which shall be decided in the curative order. The judge shall conduct the discussion in the manner of the order in which the questions to dealt with shall be decided. Each of the advocates can use twice the opportunity for say that is given to them. § Sole Paragraph: When any of the parties or both of them do not appear and are not represented by advocate with special powers for compromise, the judge shall appoint another day for hearing, if he deems fit, to attempt the conciliation. The attempt for conciliation can take place at any other stage of the proceeding and whenever the court deems fit. Article 514 – Curative Order - Upon the end of the discussion, within 10 days, an order shall be passed for the following:

1. (1) To take cognizance in the order laid down in article 293 of the exceptions that can lead to dismissal of the suit, as also the nullities even though they do not have the effect of nullifying the entire proceeding;
2. (2) To decide if there is any peremptory exception;
3. (3) To take cognizance of the prayer, if the issue is solely of law and can safely be decided at that moment, or if, being a question of law and of fact, or solely of fact, the proceeding contains all the necessary elements for a conscientious decision. § 1: What is referred in clause (1) can only be abstained from being decided in the order if the stage of the proceeding makes it absolutely impossible for the judge to pronounce an order on them, and the judge shall provide reasons for such abstention and enable the superior courts to appreciate the grounds for such abstention. § 2: What is referred in clause (2) shall be decided when the proceeding provide for the indispensable elements, in terms of what is declared in clause (3). § 3: When the cognizance of the prayer is taken, the order, for all purposes, is equated to a final judgment and shall be designated as such. •See also Article 691 (1) of this Code.

Article 515 – Specification and questionnaire - If the proceedings are to go on, the judge,

within a period of 8 days, shall specify the facts which he considers to be confessed, admitted by agreement between the parties, or proved by documents, and shall fix, with numbers, the points of fact which are required to be proved which are material for the decision of the suit. A copy of such questionnaire, as well as the specification, shall be furnished to the parties, who may file, in duplicate, their objections. The duplicate shall, immediately be handed over to the opposite party; in the following 2 days, the opposite party may file observations. At the end of this period, the objections shall be decided. § 1: The questionnaire shall only cover the facts in the pleading which are controverted and which are relevant and indispensable for the decision in the suit. § 2: The objections can be as regards the Specifications or the questionnaire (issues). This may be challenged on account of deficiency, excess, complexity or obscurity. § 3: From the order on such objections appeal may be filed to the High Court; from the decision of the High Court, no appeal would lie to the Supreme Court. •Article 515 – Questionnaire = Specification - Corresponding provisions in C.P.C. 1908: - oIssues – O. XIV Article 516 – Notice to parties for Trial - Upon the questionnaire being finalized, the parties shall be immediately notified for filing of the list of witnesses and apply for production of any other evidence. § Sole Paragraph: If appeal is preferred in the proceedings, the modification shall be made immediately after the records are received by the court of first instance or immediately after the compliance of the decision of the superior court.

SECTION I GENERAL PROVISIONS Article 517 – Facts needing proof - The steps intended for the productions of evidence can only lie as regards the facts which form a part of the questionnaire referred to in article 515, except for the application for examination of the documents forming a part of the record in the proceedings. Article 518 – Facts which need not be proved or pleaded - Notorious facts, which shall be considered as facts of common knowledge, do not require any evidence or pleading. Also, the facts of which the court has knowledge by virtue of exercise of its functions, shall not require any pleading to be made; when the court taken cognizance of such facts, the document which is the proof of such fact shall be made a part of the record. Article 519 – Onus of proof - It is incumbent upon the plaintiff to prove the facts, positive or negative, that form the basis of the suit; it is incumbent upon the defendant to prove the facts, positive or negative, which form the basis of exception. § Sole paragraph: The court shall take into consideration all the evidence that is produced, whether or not by the party which ought to have produced it in terms of this article, without prejudice to the provisions which declare irrelevant the allegation of a fact when it is not made by a specific interested party. •Article 2405 of the Civil Code. Article 520 – Doubtful cases - The doubt as to the truth of a fact and as to the burden of proof shall be resolved against the party who avails of the fact. Evidence – Art. 517 to 580, and oral evidence (Art. 620 – 646) covers the area of Indian Evidence Act, 1872.

Article 521 – Proof of Custom, local or foreign law - The party which invokes customary, local or foreign which is unknown to the court shall produce the evidence of its existence and the contents of such law; but the judge shall officiously employ all means in his capacity to obtain the knowledge of such law, and he can, in this respect, he guided by the Ministry of Justice. •Article 2406 of Civil Code.

Article 522 – Right to contest and cross examine - The evidence shall be led giving right to the opposite party to cross examine the witnesses, save in special cases where the contrary is provided under the law. § Sole paragraph : The principle of hearing of the contest is to be understood in the sense that the party shall be notified, when he has not failed to appear, for all the acts of preparation and production of evidence and shall be allowed to intervene in these acts, by himself or through his attorney, in conformity with the law. Article 523 – Movables or immovables as evidence - When the party intends a moveable object which can conveniently be put at the disposal of the court, to serve as a mode of proof, he shall hand over the same in the office within the period designated for bringing the documents on record. The opposite party may examine the object there and take the photograph thereof. If a party intends an immoveable object or a moveable object which cannot be deposited in the office, to serve as a mode of proof, the opposite party shall be notified to exercise the rights which are referred in this article. The notification shall be applied for within a period in which the list of witnesses can be filed. § Sole Paragraph: What is provided in this article shall in no case prejudice the right to grant arbitrament and judicial inspection in respect of the thing in issue. Article 524 – Duty to co-operate to find truth - All the persons, whether or not the parties in the suit, have a duty to co-operate for discovery of the truth and the administration of justice, responding to what is asked, submitting themselves to inspections that is adjudged necessary, allowing what is demanded, and performing the acts that are decided. If they refuse, they shall be liable to pay fine, not being party to the suit, without prejudice to employment of coercive measures which are possible; if the person refusing is a party to the suit, the facts that are intended to be inquired shall be considered to be proved.

But the refusal shall be legitimate if the obedience would mean violation of professional secrecy or cause grave injury to the honour and respect of the said person, of any of his ascendant, descendent, brother or spouse, or cause grave prejudice to the patrimonial nature of any of the persons referred above. § Sole Paragraph: What is contained in this article is subject to the entire provisions relating to the judicial display of the books of commercial records and of the documents related to it. Article 525 – Anticipated production of evidence - Their being reasonable apprehension that the deposition of certain persons or the verification of certain facts by visual inspection will become impossible or very difficult, the deposition or the inspection may take place in advance and even before the suit is filed. § 1: The Applicant shall justify, in a summary manner, the necessity for taking the step in advance, mentioning with precision the facts in respect of which he has to call and identify the persons who have to be heard when dealing with the deposition of the party or the witnesses. § 2: When the step is to be effected before the filing of the suit, the objects and the grounds for the same shall be indicated in a concise manner and the person or persons against whom the evidence is sought to be used is to be identified. These persons shall be personally notified in furtherance of the effects of article 522; if they cannot be personally notified or if they reside outside the continent or the island where the step is to be effected, the Public Ministry shall be notified in case of unknown persons or absentees at unknown place, and an advocate appointed by the judge, in the case of absentees in a certain place. Article 526 – Extra processual value of evidence - The deposition and expert reports produced after hearing of the opposite party can be invoked in other proceedings against such party. But if the regime of production of evidence of the first proceedings offers to the parties inferior guarantees than that of the second, the deposition and expert reports produced in the first proceeding has value in the second to the extent of the purpose of the evidence. § 1: The admissions made in the pleadings can be contested in other proceedings. § 2: The provision in this article does not have application when the first proceeding has been annulled, at least in respect of the part related to the production of evidence which is sought to be invoked.

SECTION II DOCUMENTARY EVIDENCE SUB-SECTION I TYPES OF DOCUMENTS AND THEIR PROBATIVE VALUE Article 527 – Kinds of documents - The documents for the purpose of proof may be authentic, authenticated or private. •Articles 527-646 – Evidence Act - Corresponding provisions in C.P.C. 1908: - oProduction, impounding and return of documents - O.XIII oSummoning and attendance of witnesses – O.XVI, oAttendance of witnesses confined or detained in prisons – O.XVI-A oHearing of the suit and examination of witnesses – O.XVIII Article 528 - Authentic document - Authentic document is that which was drawn by a public official or with his intervention as required by law. •Civil Code Article 2422. Article 529 – Types of authentic documents - Authentic documents are either official or extra official. Authentic official documents are those which are drawn or issued by the public offices of the Government or of the local authorities as well as judicial acts and the documents entered in the registers of all the public offices either existing or extinct. Authentic extra official documents are those instruments or acts drawn by the notaries or with their intervention and meant to declare the wish of the parties. § 1: For the purposes of qualification of authenticity of the documents, the registers of the extinct ecclesiastic corporations, maintained in any public office, when have been compiled officially are deemed as public registers.

§ 2: Miscellaneous documents preserved in the tower of tombo or any other public offices may

be qualified as authentic if they are satisfying the requirement of the second part of this article. •Civil Code article 2424, 2433.

Article 530 – Probative value of authentic documents - Authentic official and extra official documents constitute full proof in respect of acts done by authority or respective public official and in respect of truth of the facts which occurred in his presence and which he certified or could certify, unless the falsity of the document is established. In respect of facts which did not occur in the presence of authority or public official and in respect of declarations made to him it is possible to demonstrate that they do not correspond to the truth independent of the plea of falsity of the document. •See Article 2425 and 2426 of this Code. Article 531 – Third party rights are saved - The rights of the persons which may be considered as third parties shall not be prejudiced by the probative evidence of the authentic documents. •Civil Code article 2426. Article 532 – Indispensable nature of authentic documents - Save any express provision to the contrary when the law requires any authentic document this method of proof cannot be substituted by any other. •Civil Code Article 2428. Article 533 – Defects in authentic documents - The probative value of the authentic document may be disproved in view of the absence of ingredients which the law requires for its execution or on account of falsity. •Civil Code article 2493. Article 534 – Falsity of authentic documents - The falsity of the document may arise :- I. When the document is fake. 2. When some of the parties mentioned therein either as parties or as witnesses are fake. 3. If some act is mentioned therein as done when really it has not been performed. 4. There is vitiation in the context, date or signature of the document. •Civil Code article 2496.

Article 535 – Verification of authenticity - The documents of the period before the sixteenth century, whose authenticity is contested, shall not constitute evidence without previous diplomatic examination done in the ‘Torre de Tombo’ from which results its authenticity. Torre de Tombo’ = ‘tower of records’, is the Portuguese National Archives.

Sole Paragraph: This examination shall be ordered by the director of archives, by virtue of the order of the respective court. •Article 2497 of the Civil Code.

Article 536 – Definition and probative value of authenticated documents - An authenticated

document is a private document with authentic recognition. The authenticated documents have the same probatory force as authentic documents. •Article 160, paragraph 2; article 204, paragraph 1 and article 205 of the Notarial Code. Article 537 – Private documents - Private documents are the ones that are written or signed by any person, without intervention of a public officer, and which are not authentically recognized. •Article 2431 of the Civil Code. Article 538 – Disputing the documents - The text and the signature on a private document shall be considered as recognized when it is not expressly challenged by the party against whom the document is produced. The challenge may assume two forms. The person challenging can put up a case of falsity or can limit himself to declaring that he does not accept the text and the signature as true. In the first case, it is incumbent upon the person challenging to prove the falsity by following proper procedure; in the second case, it is incumbent upon the party which produced the document to convince of its veracity, by examination or by any other mode of proof. In both the cases, the challenge shall be made within the period in which the falsity of documents may be argued. •Article 365 of this code. Article 539 – Effect of admitting signature - If the party recognizes, expressly or impliedly, the signature on a private document as true, or if the signature is judicially regarded as recognized, the text of the document has to be considered as true, except in case where signature has been affixed by a third person at the request of the executants, or if the party alleges and proves that the document was blank, in full in part, when signed, and that the blank portion of document has been filled without any authority. § 1: When the document contains marginal notes, interlineations, erasures, or amendments, such alterations shall have validity if those words have been repeated before the signature or if is \

shown as made by the signatory himself. § 2: The abuse in filling up a document consists in inserting recitals or stipulations contrary to what is agreed upon with the signatory. •Article 2432 and 2433 of the Civil Code. Article 540 – Value of signature on request - The signature on request shall be considered to be true when it is recognized by the notary with the declaration that the request was made in his presence, or when the party which ought to oppose the document, recognizes that the request was made, or when it is accompanied by the fingerprint of the person making the request. The veracity of the document is to be inferred from the veracity of the signature at request when it is proved that the person for whom, or in whose name, the document is signed knows and can read its contents. •Article 2434 of Civil Code, Notarial Law in force in Goa, Daman and Diu. Approved by Law No.8373 dated 18/09/1922, Article 75 clause 7. Article 541 – Value of documents not usually signed - The entries, domestic registers and other writings which are not usually signed shall be considered to be arising from the person to whom it is attributed if the party which ought to oppose does not challenge them in terms of what is contained in article 538. In case of challenge, the provisions contained in the same article shall be observed. •Article 2439 and 2440 of Civil Code. Article 542 – Probative value of private documents reputed as true - The private documents, the veracity of which is established in terms of articles 538 to 541, prove that the executants of the documents made the declarations referred in it. The facts consistent with those documents shall be considered to be correct, in so far as they are contrary to the interests of their executants; but the person who seeks to take the benefit of such facts also has to accept the facts contained in such documents which are not favourable or otherwise prove that they are not true. § Sole Paragraph: The private writing is not a proof against person who has written or signed it, if it was intended to leave his possession, but never did, except if it is shown that the retention was improper. •Article 2432 and 2433 of Civil Code.

Article 543 – Free judicial appreciation of other documents - The veracity of the private

documents which are not contained in the conditions foreseen in articles 538 to 541 shall be freely appreciated by the judge.

Article 544 – Value of creditor’s notice on the credit instrument - Notings written by the

creditor, at the follow-up, in the margin or at the reverse of any document of obligation, although neither dated not signed, constitutes evidence in favour of the debtor. •Article 2438 of the Civil Code.

Article 545 – Date of private documents in relation to third parties - In respect of third

persons, the private documents shall be considered as bearing the date of the day on which any of the following facts have taken place: 1. The authentic recognition of the writing; 2. The death of any of the signatories; 3. The filing of any document in the court or in any public department. •Article 2436 of Civil Code.

Article 546 – Burden on the person to whom document is attributed - The person who

opposes any writing, ostensibly made or signed by him, shall be required, to declare if the writing or the signature is effectively his, if the person producing the document so demands. •Article 2435 of the Civil Code. Article 547 – Value of photographs of document - The photocopy of a document is valid only as starting point of evidence.

Article 548 – Reconstruction of documents - The documents which have in any manner

disappeared may be reconstructed under the supervision of the Court. Article 549 – Legalization of documents issued in foreign country - The authentic documents executed in foreign countries, in conformity of the law of that country, shall constitute proof in the same manner as documents of same nature drawn or issued in Portugal, provided that the signature of the public officer is recognizance by diplomatic agent or the Portuguese consulate in

the respective state and the signature of such agent is recognized in Portugal in the ministry of foreign affairs. § Sole Paragraph: If the private documents drawn outside Portugal have been validated by a foreign public officer, the validation shall not be of any effect till it has obtained the recognition as is required under this article. •Article 2430 Civil Code. SUB-SECTION II PRODUCTION OF DOCUMENTARY EVIDENCE Article 550 – At what stage documents are to be tendered - The documents intended to be produced in support of the action or of the defence shall be filed along with the pleading in which the facts intended to be proved are pleaded. If not, they may be produced later until the end of the trial in the first instance, but the party shall be liable to pay fine, except where it is proved that he could not file them till that time. After the conclusion of the trial, the documents which could not be filed until that stage shall be admitted only in case of appeal. The documents intended to be used as evidence of the facts occurred subsequent to the pleadings, or the filing of which has become necessary by virtue of such subsequent occurrence, may be produced at any stage of the proceeding. § Sole Paragraph: The opinion of advocates, professors, or technical persons, which may be filed at any stage of the proceedings, shall not be treated as documents. Article 551 – Notice to opposite party - When the documents are filed with the last pleading, or subsequently, the filing shall be notified to the opposite party; except in case where he is present or if the documents are filed with pleas which allow reply. Article 552 – Possibility of using documents in the possession of the Opposite Party - When the party intents to make use of the document which is in possession of the opposite party, he shall apply that the opposite party shall be notified to produce on record the document within the

prescribed period. The application shall indicate of what the document forms a part and what are the facts that are intended to be proved by means of the document. If these facts are covered by the issues, or if they satisfy the necessary requirement to be included for production of such documents, notice shall be issued. Article 553 – Penalty for the party who does not furnish the documents - If the party that is notified, neither files the document, nor makes any declaration, the facts which are proposed to prove, are deemed to be true and correct. The same facts shall also be considered to have been proved when the person notified admits that the document is in his possession and refuses to produce the same or when he declares that the document is in a specific place or in the possession of a third person and it is found that such declaration is not true. If the person notified declares that he does not possess the document, the applicant shall be allowed to prove, by any means, that the declaration is not true. The court shall freely appreciate such evidence and confirm the conviction at which it arrives, and shall thereby apply or not the sanction as provided in the first part of this article. § Sole Paragraph: The declaration which is referred in the second part of this article shall be irrelevant when the party has already affirmed that he is in possession of the document or has made references or acted upon the facts from which his possession can be necessarily inferred, save in case where he produces evidence which affirms the involuntarily destruction or loss of the document.

Article 554 – Use of documents in the power of third persons - If the document is in

possession of a third person, the party shall apply that the possessor be notified to deliver the said document in the office within such period as is prescribed. The provision of article 552 is applicable to the application and order under this article. § 1: If the document is delivered, it shall be made a part of the record. § 2: If the person notified neither delivers the document nor makes any declaration, the judge can order necessary steps for seizure and shall impose fine on the person notified. The same shall happen when he declares that he does not possess the document and the applicant produces evidence to show that the statement is not true. § 3: If the third person pleads reasonable cause for not having effected the delivery, he shall be bound, under the sanctions prescribed in the previous paragraph, to make available the document

for the purpose of being photographed, judicially examined or to draw necessary copies of it. § 4: The provisions of this article and its paragraph do not apply to commercial book keeping or documents relating to it.

Article 555 – Requisition of documents by Judge - The court may, suo moto or upon the

application of any of the parties, requisition particulars, technical opinions, documents, maps, photographs, drawings or objects which it considers necessary for the clarification of the truth. The requisition may be made from any public offices, from the parties to the suit or the third parties. § 1: The Government offices are bound to comply with the requisition, except if it relates to the confidential matter or reserved category or to proceeding in camera. § 2: The parties and third persons who do not comply with the order shall be liable to pay fine, except if they justify their stand, without prejudice to employment of coercive measures which are required for the purpose of enforcement. § 3: The expenses incurred on account of the requisition shall be charged as costs payable to the Government offices and for the third party which has initiated the procedural step or to whom it benefits. § 4: The production shall be notified to the parties, strangers to the requisition or to such production. Article 556 – Power to refuse irrelevant or unnecessary documents - The court has the power to refuse the production of impertinent and unnecessary documents and to order that such documents be withdrawn from the proceedings. Article 557 – Destiny of documents - The documents shall form part of the proceedings and cannot be withdrawn until the judgment or the order which ends the suit operates as res judicata. If the retaining of the documents as a part of the proceedings is not convenient, it shall be determined, suo moto or on the application of the parties, that the documents be kept in the custody of the court office, without prejudice to the right of the interested parties to examine them. § 1: At the end of the suit, the documents belonging to the third persons shall be immediately

delivered to them and those of the parties shall only be delivered to them by way of an application made in that regard. In respect of the certificate of documents which permanently exist in government departments, the indication of the department and of the book and its respective place shall remain in the records; in respect of other types of documents, the indication of the type of the document and that of the person who had delivered it shall remain in the records. § 2: The documents referred in the first part of the second phase of article 167, shall be delivered to the respective parties independent of the application made by them. § 3: The documents can be delivered even before the end of the suit when the person to whom it pertains justifies the necessity for its immediate restitution. In such a case, the entire copy shall remain in the record and the person to whom it pertains shall always be bound to produce the original when the same is demanded. Article 558 – Sanctions for violation of fiscal laws - The documents which are not properly stamped or which relate to transactions which are subject to tax, and do not show if such tax is paid promised in terms of the law applicable, shall not be admissible, without prejudice to the appreciation of the respective records of violation. Article 559 – Copies of illegible documents - If the writing on the document is difficult to read, the party shall be bound to furnish a legible copy. If the party does not comply with the same, it shall be liable to pay fine and the copy shall be produced on record at the cost of such party. SECTION III PROOF BY ADMISSION OF THE PARTIES SUB-SECTION I KINDS OF ADMISSION AND ITS PROBATORY FORCE Article 560 - Admission - Admission is the recognition by a party of the right of the opposite party or of the truth of the fact pleaded by the latter.

•Article 2408 of Civil Code. Article 561 – Kinds of admission - Admission may be judicial or extra-judicial. •Article 2409 of Civil Code Article 562 – Judicial admission - Judicial admissions may be made in the pleadings, by record, in the deposition or in any other manner admissible in the proceeding. The admission in deposition can only be made by the party himself. The admission by record can be made by the party or by the holder of mandate with special powers. •Article 2410 of Civil Code. Article 563 – From whom deposition of party can be sought - The deposition of the party may be demanded from the persons who have judicial capacity. The deposition of minors of more than fourteen years of age and of the interdicted by prodigality, as well as that of the representatives of incapable persons and of the collective persons can be applied for; the deposition shall have the value of admission to the precise extent to which the persons making them can be bound, and such admissions may also bind their representatives. Each of the parties can not only apply for the deposition of the opposite party, but also for his fellow parties. The deposition of the person assisting the case can also be applied for. •Article 2411 of the Civil Code. Article 564 – Facts of which deposition can be sought - The deposition may relate to the facts of which the deponent has personal knowledge or of which the deponent ought to have knowledge not being in respect of facts of criminal nature or involving moral turpitude in respect of which the party has been prosecuted. •Article 2411, no.2 of the Civil Code. Article 565 – Probative value of judicial admission - Judicial admission constitutes conclusive proof against the party making such admission, except: 1. If it is declared insufficient by law or if it depends on a fact, the recognition or investigation of which is prohibited by law. 2. If it results in loss of rights that the person making the admission cannot renounce or, in respect

of which, he cannot transact. § Sole paragraph: An admission made by an advocate appointed by Court or by Public Ministry, as representative of the State, of uncertain persons or of the absentees has no probative value. •Article 2412 of Civil Code Article 566 – Value of deposition of assistant at the request of co-party - The deposition of the assistant called for on the application of a fellow party shall be freely appreciated by the judge, taking into consideration the circumstances and the position of the person who deposes and who applied for it. Article 567 – Revocation of Judicial confession - Judicial admission can be revoked only in case of an error of fact, in a suit filed for this purpose. The act of revocation does not obstruct the progress of the suit in which the admission is made. •Article 2413 of Civil Code Article 568 – Extra Judicial admission – Extra judicial admission can be authentic or private. The first is the one that is done by public deed or public act; the second is the one that is done verbally or by a private document. •Civil Code Article 2414 and 2415.

Article 569 – Evidentiary value of extra judicial admission – Evidentiary value of extra-

judicial admission shall depend upon the form in which it has been made. If it is verbal, the rules relating to oral evidence shall be applicable; if written, the rules relating to documentary evidence shall be applicable. •Article 2416 of the Civil Code. Article 570 – Non retractability of admission - The admission is, in principle, irrevocable. But the admission of facts, expressed in the pleadings can be revoked until the opposite party has specifically accepted the same. Article 571 – Indivisibility of admission - Admission is not severable. He, who desires to take

benefit of the part of the admission that is favourable, has to also accept that part of it which is not favourable. Where in the admission made by a party in answer to the cross examination posed to him, he has added new facts which serve as a ground for an exception or a counterclaim in his favour, it shall be severable. •Article 2417 of the Civil Code. SUB SECTION II RECORDING OF DEPOSITION OF PARTY Article 572 – Application for recording - Where the examination of a party is sought, the facts over which such examination is sought shall be specifically mentioned failing which examination shall not be permitted. The party shall be notified with a warning that if he fails to appear, the facts in respect of which examination is sought shall be deemed as admitted. Article 573 – Where it is recorded - The questions shall be given at the time of the trial, except where the deponent resides in the different jurisdiction, if he is unable to put in appearance before in the court or it is urgent. The court may, however, direct that the questions be answered at the hearing of the trial, by a party residing outside the judicial district in which the suit is in progress if it adjudges it necessary and the obligation for appearance would not result in a grave sacrifice for such party. § Sole Paragraph: Where it is shown that the party is unable to appear in the court, the questions shall be answered at the residence of such party. •See also Article 653 (b) of this Code.

Article 574 – Sanctions for non appearance - The party, personally notified to answer the

questions on the prescribed day and time does not appear, the facts in respect of which the answer were to be sought and he had an obligation to answer shall be deemed to have been admitted, if in the following 5 days from day for which he was notified, he does not prove a just impediment. The penalty shall be the same of having appeared and refused to the answer the questions.

§ Sole paragraph: If the party proves just impediment, a new day shall be designated for answering the question, either in the court or at the residence, depending on the circumstances. If illness is the cause of the impediment, the judge get may get the party examined by a doctor of his own choice. Article 575 – Order of deposition - If both the parties have to answer the cross examinations before the court, the defendant shall answer first and thereafter the plaintiff. If more than one plaintiff or defendant have to answer the question, their fellow parties who have not yet deposed shall not be allowed to remain present for the recording of evidence of any of them and when they have to be examined on the same day, they shall be gathered in a hall, from where they shall emerge in the order in which they have to depose. Article 576 – Oath - Before the deposition, the court shall impress upon the deponent the moral significance of the oath that he will perform and the duty that is on him to be scrupulously faithful to the truth, cautioning him about the sanctions that result from false declarations; and thereafter shall call upon the party to take the following oath “I swear before God, that I will state the full truth and only the truth”. If the deponent declares that he prefers to swear upon his honour, the oath shall be as follows: “I swear by my honour and by my conscience that I will speak the full truth and only the truth”. § Sole paragraph: The refusal to take the oath amounts to refusal to answer the questions. Article 577 – Interrogation and replies - The judge shall interrogate the party on each of the facts which should be the object of the deposition. The deponent shall reply to the questions put to him with precision and clarity, and the opposite party may seek the clarifications required to clarify and complete the reply. § 1: The party cannot bring his answers in writing; but he can take the help of any document or note of dates or facts, to answer the questions that are put to him. § 2: When the party states that he does not remember or that he does not know, the fact is to be considered to be admitted. •See also Article 494, paragraph 1 of this Code. Article 578 – Intervention of advocates - The advocates of the parties may remain present while

the party is answering the questions in the cross examination, and apply for what they think fit; but they are not to question the party. § Sole paragraph: If it appears to the advocate for the deponent that the question is inadmissible, in form or in essence, he shall raise objection to the opposition, it shall be decided immediately. Article 579 – Recording of deposition - The answers to the questions shall be written when the answers are not given before the collective court. The writing is to be done by the judge, and the parties of their advocates may raise objections as they think fit. The judge shall reproduce with great integrity and brevity, the declarations of the party answering the questions. On the completion of the questioning, the same shall be read to the party who shall, confirm or seek to make rectification, which may be adjudged necessary. The answers to the questions shall be made a part of the record. SECTION IV OATH

Article 580 – Abolition of oath as a form of evidence - Oath is abolished as a mode of

evidence, as much in respect of merits as in case of supplementary proceedings. SECTION V EVIDENCE BY ARBITRAMENT SUB-SECTION I TYPES OF ARBITRAMENT AND THEIR EVIDENTIARY VALUE Article 581 – Types of arbitrament - Evidence through arbitrament may consist in examination (in case of movables), inspection (in case of immovables) or valuation. The examinations and inspections have the purpose of investigating the facts which have left marks or signs or can be subject to inspection or visual examination. If the investigation is of movables it is called examination; if it is in respect of immovables it is called inspection.

The valuation has the purpose of finding the value of assets or rights. •See Article 2418 of Civil Code. •Articles 581-606 - There is also evidence by Arbitrament. •This is much more detailed than our provisions of appointment of commissioner, inspection, experts etc. Comment – Arbitrament means investigation into facts which have left marks or signs or can be subject to inspection or visual examination; as also determination of value of assets and rights. Examination is for movables. Inspection (“vistoria”), normally site inspection is for immovables. The word “vistoria” literally means an eye’s look or a look with the eye. 1.Arbitrament is different from arbitration. 2.Article 2418 of the Civil Code - The evidence by way of experts, of moveables or immoveables, is meant to investigate facts which have left vestiges or may be subject of examinations or subject of inspection. 3.Vistoria means inspection, surveying or visit. It is an inspection accompanied by experts from both the sides and also expert appointed by the judges who express their opinion on the subject. 4.Arbitrament is an opinion expressed freely by the person appointed for the purpose. There are suits which are decided through arbitrament viz. under article 1051 to 1067. It is different from arbitral tribunal. 5.Portuguese Civil Procedure Code in article 1561 provides for arbitration as in Arbitration Act. Article 582 – Evidentiary value of examination and inspection - The probative value of an examination and of an inspection shall be freely appreciated. •See Article 2419 of Civil Code. Article 583 – Evidentiary value of assessment - When the valuation depends solely of arithmetic operations or quotations in the official list, the valuations shall be based on these. In other cases of the final fixation of the value is the function of the judge who shall to attend to all the data available in the file and shall collect all the necessary information and may also hold judicial inspections if found necessary. •See also Article 616 of this Code. SUB-SECTION II EXAMINATION AND INSPECTION Article 584 – Stage upto which examinations and inspection may be sought - The arbitrament by way of examination or inspection and the production of the full books of account may be applied for within five days from the day notice of article 516 is given, but if subsequently more documents are annexed and the opposite party doesn’t agree to accept the handwriting and the

signature, it is lawful to ask for examination of such documents: within five days next after the declaration or knowledge of the same by the party who produced them. § Sole paragraph: The party who applied for such procedural step is not entitled to withdraw the same without the consent of the opposite party. Article 585 – Framing of queries - The party who applies for examination or inspection shall present the queries to be replied by the experts. If the court is of the view that the procedural step applied for is neither irrelevant nor dilatory, it shall issue notice to the opposite party to present its queries; the court further shall upon examination of the queries shall declare which of the queries do not form part of the questionnaire and then will fix the day and time for the appointment of the experts. § 1: Each party may formulate queries on all the items of the questionnaire even though they have been formulated by the opposite party. § 2: The parties may apply that the queries formulated be kept secret till the date of the inspection, when there is apprehension of alteration of the facts which the experts are to inquire. If the court finds that the apprehension is well founded it shall keep the queries duly sealed and issue the order for carrying out the inspection in the general manner. § 3: Till the date of the inspection the court may formulate queries which are found convenient. § 4: If till the date fixed for appointment of the experts the parties produce application in writing signed by both the parties with the mention of one or three experts appointed by them by agreement, such application shall be annexed to the file, as acceptance of the appointment made by the parties. Article 586 – Appointment of experts - If the parties are in agreement they shall choose one or three experts. In the absence of the agreement each party shall choose one and the judge shall appoint the third. If the arbitrament has been ordered suo moto and the question of fact is of great simplicity, the procedural step shall be carried by a sole expert appointed by the judge. In the first arbitrament, there shall be not more than three experts. § 1: If there is more than one plaintiff or more than one defendant the appointment shall be done by those who are present and in case of disagreement, the opinion of the majority will prevail. If the plaintiffs and defendants are not present or there is no agreement between them for majority,

power vests in the judge.

If both the parties are absent, it is understood that they have withdrawn their prayer for

examination by experts. § 2: Where the parties are not in agreement as to the appointment of the expert the appointment shall be done in the first place by the judge, and if possible a specialized functionary will be chosen. The parties are not entitled to choose functionary of a rank superior to the one appointed by the Court. Article 587 – Appointment of experts for steps to be taken through letter - If the examination or inspection has to be made by letter of request, the appointment of the experts shall take place before the court where letter of request is addressed, except where till the dispatch of the letter of request, parties, by application, indicate the experts as per paragraph 4 of article 585. In such case such application shall be forwarded along with letter of request.

Article 588 – Impediments – The following persons cannot act as experts: 1. President of the Republic; 2. Members of the government; 3. Members of National Assembly; and of the Corporate Chamber when they are in active exercise of their functions, except if assembly or chamber gives them permission. 4. Archbishops and Bishops; 5. The military staff in effective service and government servants who are to render service in the secretariat or offices; except if permission from their superior is obtained; 6. The government servants in cases in which one of the parties is the government. 7. The government servants of the general administration of water and electricity department who are rendering service in particular division, if the dispute is in connection with supply of water or works connected thereto. 8. Those who do not have the qualification and to hold arbitrament when the same involves special knowledge 9. Those who are incapable to depose as witnesses § 1: In the case of nos. 3 and 5, the appointment will be of no effect, if till that day the sanction from higher authorities or permission has not been produced. However the licence as required as

clause no. 5 is not necessary when the government servant intervenes by virtue of provision of law and the government servant has been appointed considering his special and technical competence. § 2: The impediments referred to in clauses no 6 and 7 cease in case the respective employees have been appointed by the government or by the court. § 3: The impediments may be opposed by the opposite party or by the experts and may be raised suo moto till the date of the inspection. But breach of clauses no. 6 and 7 read with Paragraph 2 will give rise to nullity of the procedural step which can be raised by the opposite party and shall be declared ex officio till the date of the judgment in the first instance; besides the government officer appointed should recuse from intervening until he is expressly ordered by the court, failing which he incurs disciplinary liability. •See Articles 623 and 624 of this Code. Article 589 – Exemptions - The following persons may refuse to act as experts: 1. The councilors of the State, judges and magistrate of the Public Ministry in effective service; 2. Ecclesiastics in charge of souls; 3. Those who are of more than 70 years of age. § 1: The recusal shall be sought by the appointee within the period of 24 hours from the date of the communication made to him and the same is to be granted provided the ground invoked is satisfied. § 2: In the case of clause 3 the applicant shall produce certified copy of the birth registration or produce the identity card. If it is not possible to produce immediately the said document, the same shall be done within next three days. In the case of no. 1 and 2 the applicant is not bound to produce the proof of the ground alleged. If the judge has doubts he will hear the parties and may ask for the information which he deems fit. Article 590 – Recusals - The experts may be permitted to recuse on the same grounds available to the judges, in accordance with article 127 and also those mentioned in clauses no 2 and 4 of article 122 in the part in which these grounds do not constitute impediment in terms of clause no 9 of Article 588. The recusal may be opposed by any party, when appointed by the court and by opposite party if the expert is appointed by the parties. The objection may take place till three days after the

appointment. § 1: If the recusal is raised at the stage of appointment the same shall be decided immediately and work of the examination shall be continued except where the expert who recuses has to produce evidence which is unable to produce immediately. The decision on recusal may be adjourned and will be passed on the designated day within the period of eight days and the appointment will become final without any further notice. § 2: In the Judicial divisions where there is more than one court, the arbitrament shall be suspended as soon as there is a recusal and the same shall be decided by the judge after following what is prescribed by the preceding paragraphs. § 3: Save in the case of extreme emergency between the day of appointment of the expert and the date fixed for the purpose of the judicial work at least three days gap shall be maintained. Article 591 – Finality of decisions - From the decision passed on impediments, excuses and recusal no appeal lies. Article 592 – Record of appointment of experts - If at the time of appointment of experts no objection of any kind is raised, note will be made on the file about the appointment of each of expert and by whom he was appointed. In case any question arises the same shall be recorded in the file.

Article 593 – New appointment - If the recusal of any appointment is held maintainable, or

experts appointed have expired or could not be summoned and it was not possible to hold the inspection on account of supervening motive or unforeseen circumstance, the parties by agreement or respective party may make fresh appointment provided that the step fixed is not adjourned. In all other cases including granting of recusal and impediment raised after the act of the appointment, the power to substitute is within the jurisdiction of the court, there being no ground for making application for recusal if the party has chosen another expert. The same procedure shall be followed when any expert does not appear on any ground. § Sole paragraph: If the party is entitled to make fresh appointment the same may be made by application before the date fixed for inspection and opposite party shall be given notice or may

ask for recusal within the next 24 hours and even at the time of the inspection. In the last case if there is a recusal which has been accepted by the court and party is unable to make substitution, the fresh appointment is to be made by the court and party is prohibited from raising objection against the appointment by the expert who has tendered the refusal. Article 594 – Experts from outside jurisdiction - The parties may chose experts from outside the judicial division, who shall not be notified, but the party who nominated them being bound to ensure their attendance. The court may appoint experts from outside when there are no fit persons within the judicial division as the matter requires specialized knowledge. In this case the emoluments to be paid to the experts shall be fixed by the court taking into consideration time and importance of the work and category of the person who has rendered the service and inconvenience sustained by him. Allowances shall be paid to the experts in advance for their dislocation. Article 595 – Experts which Court should appoint - In all the questions over the waters and related works which are not private in nature, the judge shall always appoint as expert, an engineer from the concerned office of the water resources department. In the case of examination of accounts and commercial book keeping judge shall appoint judicial administrators in the case of insolvency; when this is not possible the appointment shall be of persons qualified through institutions of middle or higher education in commerce if available. In other examination and inspection which require technical knowledge the experts appointed by the court shall, as far as possible, be appointed from amongst the officials from the respective services. Article 596 – Commencement of steps - Once the experts have been appointed date time and place will be fixed for the starting to the inspection. The experts who were to be produced by the parties shall not be notified, even if they reside in the judicial division of the proceedings.

Article 597 – Inspection by experts - The experts shall solemnly undertake to perform the

functions which have been entrusted to them and after receiving the queries shall hold the inspection in making necessary inquiry to be able to respond to the queries. The judge shall be

present to the inspection if his presence is solicited by the parties and that event costs shall be borne by the applicant. The parties may for themselves or through their advocates make necessary observations which they deemed fit and shall furnish the clarifications sought by the experts. If the judge is present, they may also make any application which is found necessary in relation to the object of the inspection. The experts have the right to avail of all the necessary means for proper exercise of their functions. They may also solicit the information from the file. However they cannot make any change at the site like destruction, elimination of the thing submitted to their inspection without any order from the court. Article 598 – Fixing time for steps - Whenever presence of the judge is not solicited, the latter shall fix the time within which the inspection will be carried and the same procedure shall be followed when presence of the judge was solicited and the inspection does not end on the same day. At the end of each section, the expert shall give the knowledge to the parties of the day when the inspection is to be continued. § 1: The time may be extended once, if there is a justified reason. § 2: If any of the expert appointed by the parties does not give his report within the time, the report will be collected only from the other experts. If the defaulter is the expert appointed by the court, in his substitution new is appointed and fine will be imposed on the former. § 3: Between the conclusion of the inspection and hearing of the case time gap should be the minimum.

Article 599 – Reply to queries - When the experts are ready to answer the queries they will

report the matter to the office. Thereupon the judge will fix the date for their replies which shall be given in the presence of the judge at the site but in the case of examination they may be given in the court. Thereafter a report shall be made where after each query respective answer is written, indicating whether it is given by all the experts or by some of them and in the affirmative by whom. The experts should submit their opinion in resume but with justification; however, they may

submit also a detailed report where they have noted what verification they made in lower court, which information they collected and from whom and what is their opinion on the facts they collected. In this case, the report shall contain queries and answers to each of them with great clarity and simplicity. § Sole paragraph: Where the judge attends the inspection and the experts are able to give their opinion on the same day; report with answers shall be immediately prepared. Article 600 – Objections - Parties are not to be remain present at the time of the replies; but they are to be read to them after they are written. If they are of the view that there are some deficiencies, obscurity and contradiction, they may formulate immediately their objections; if they are accepted by the judge, he will direct the experts complete, harmonize or clarify their replies of all the details mentioned in the report. Article 601 – Verification of correctness of plans and other documents finalized by parties -

If the parties have produced plans, drawings, photography’s or any other type of graphic

expression, the experts are bound to either to acknowledge their correctness or point out the differences which are found therein.

Article 602 – Filing of exhibits by experts - It is lawful to the experts to present drawings,

plans, maps or any other documents so as to clarify or justify their opinion; but for the purposes of accounting, only on those will be considered which the court finds useful. Article 603 – Examination of handwriting - Examination for the purpose of identifying hand writing shall have for its basis the comparison of the handwriting which is intended to be identified with another which is known as being of the person to whom it is attributed. In order to make the comparison, the judge may requisition any documents which exist in the archives or public offices. The examination takes place in the office or archives if the documents cannot be taken there from. If there is no writing with which any comparison can be made of the hand writing to be examined, the person to whom the hand writing is attributed shall be notified personally to write, in the presence of the experts, the words which they may indicate. If the person resides in another

judicial division letter of request shall be issued accompanied with a paper sealed containing the indication of the words that the notice shall write in the presence of the judge where the letter of request has been addressed. The letter shall be remitted and returned officially. Article 604 – Examination by official scientific agencies - In the judicial division of Lisbon, Porto and Coimbra, all medico-forensic examinations shall be done by the Institute of Legal medicine, those of acknowledgment or hand writing and any other which the same institute are specially equipped to conduct. In the same judicial division is the examination which require particular knowledge of some clinical speciality or which demand investigation proper of laboratories or adequate scientific institutes shall be made in the respective official establishment by the professors or technicians of the same establishment. Whatever is provided above has application to any other Judicial division as to the things or persons which may be the subject of examination may, without inconvenient be transported to the seat of the institute or establishment. The examination shall be made in Lisbon, Porto or Coimbra, according to the High Court Jurisdiction to which the Court belongs.

Article 605 – Examination by scientific establishment - The examination referred to in the

previous article shall be requisitioned to the director of concerned institute or official establishment by way of official letter signed by the judge which shall indicate the facts to be inquired and the time to conclude the examination to maintain the normal course of the proceedings. The result of the examination shall be submitted as a report addressed to the judge. Along with the report the parties shall be given notice and they may object within three days against any deficiency or obscurity or apply, within legal time for a second examination by the Medico Legal Council, if the first examination was made by the Institute of Legal Medicine, in the rest to the extent applicable, provisions relating to medico-forensic examinations in penal proceeding shall apply. Article 606 – Appearance of experts at hearing - The experts shall be notified to appear at the

time of trial and they shall furnish all the clarifications which may be asked from them. If they reside in another Judicial division, the parties may produce them voluntarily and the judge may order that the third expert be notified by letter of request to appear.

SUB SECTION III VALUATION Article 607 - Legal principles for valuation - In the determination of the value of assets, the following shall be observed: 1. The properties will be valued, taking as basis the net income recorded in the matriz failing which the average income or produce of the last five years; when the income is in kind, the average market price during the same period shall be considered. After deducting the expenses towards cultivation and conservation, where there is no collectible income and upon multiplying the net income by 20 installment the normal value shall be obtained, which may be increased or decreased depending upon the length of the period for which income can be increased or decreased so long as the land yields the same produce or rent or the use to which it can be put up or any other circumstances which may have bearing on the market value; 2. The movables shall be valued taking into consideration their substance, utility, and state of conservation. If they generate any income, the same shall be taken as basis for fixation of rent, in accordance with the preceding number; 3. The value of any other perpetual or temporary installment, which should be realized during 20 years or more shall be equal to 20 annual installments. The value of annual installment, whenever it is in kind shall be fixed by the average price of the commodities during last five years; the prices fixed by municipality if there is any and is accepted by the parties shall indicate average price. If the installment is emphyteutic and if there is any ‘laudemium’ (premium payable for transfer of emphyteusis; acknowledgement money), the valuation of “dominion directum” shall be obtained adding one more installment to the capital of 20 installments. The value of the ‘laudemium' shall be obtained by deducting from the value of the property the amount corresponding to 20 installment and dividing the rest by the rate of the instalment plus one; 4.The value of any other temporary installment shall be fixed by the sum of installments

yet to be paid, after making necessary deductions so that the capital and the respective annual interest of 5% make up at the end of the period the total amount of the installment yet to be paid; 5. The value of the usufruct, of the use and habitation of permanent nature shall be obtained multiplying by 10 the annual income; but the produce may be increased or decreased depending upon the probable duration of the respective right; 6. The rights of easement and similar rights shall be calculated by approximate estimate of benefits which are derived from easement and the burdens towards inconvenience caused; 7. Value of any right and suit shall be determined taking into consideration the difficulties to make the right effective; 8. Value of the foreign currency, shares, documents and certificates of public debt and other

securities and commodities which have an official quotation or listed price, shall be the said

quotation or listed price; 9. The value of a commercial or industrial establishment, considered as an unit and of the shares of the companies, by other than share holding shall be determined by the latest balance sheet. § Sole paragraph: If the shares or securities have no listed official price the value shall be fixed by the Chamber of Brokers and by annexing to the file the respective declaration. •Articles 607-612 - Valuation rules would be applicable for Inventory Proceedings but they would need to be amended and updated to meet present circumstances. Article 608 – Who does the valuation - The valuation shall be done by the office when it is dependent solely on arithmetical calculations and by experts when inquiry or inspection is needed. In the case of “dominium directum” with ‘laudemium’, the experts shall only determine the annual value of the installment in kind if necessary and value of the property and the rest is done by the office; in the case of no. 4 of the previous article fixation will be done if necessary of the annual installment in kind. The value of the precious stones and precious metal shall be done by one expert appointed by the judge preferably amongst the goldsmiths.

Article 609 – Valuation by experts - The valuation shall be done by the experts without

assistance of the judge on the basis of list of the assets with all particulars being duly numbered and described. Below such list the value with reference to each number will be given and giving reasons in accordance with the legal basis and the outcome of the operation.

If there is any deficiency or wrong description, necessary additions and rectifications will be done. § Sole paragraph: If the valuation is not done within time the experts shall be fined. Article 610 – Rectification of valuation – If, after the valuation is done, it is found that the circumstances are different from those which were considered, the value shall be rectified by office, wherever possible, otherwise by the experts who intervened. Article 611 – Error in calculation - If there is an error in the valuation or final assessment made in any account which does not relate to the cost, any party may require rectification of such error within five days from the notice. On the application the other side will be heard. If the later party agrees that there is error then the final account will be reviewed depending upon the agreement. If there is no agreement the judge will direct the office to give its say and thereafter to pass a decision.

Article 612 – Use of the regime of examination and inspection - In all the other aspects

wherever applicable what is provided in the previous sub section will follow. SUB- SECTION IV SECOND ARBITRAMENT Article 613 – Time and purpose of second arbitrament - Any party may apply for a second examination, inspection or valuation within a period of eight days after the conclusion of the first and the court suo moto may also, at any time, direct it, if found necessary. The second arbitrament is meant for investigation of same facts or fixation of the value of the same assets which were the subject matter of the first. Article 614 – Regime for second arbitrament - The second arbitrament is governed by the same provisions established for the first except following modifications; 1. In the second arbitrament the experts of the first arbitrament shall not intervene nor may the experts be of an official rank lower than the former; 2. The number of experts for the second arbitrament shall be two more than in the first; 3. If the experts are five then in the absence of agreement each party appoints two and the judge

appoints the fifth. Article 615 – Value of the second arbitrament - The second arbitrament does not invalidate the first. The court may freely appreciate one and the other considering the circumstances and other evidence which may be produced. SECTION VI JUDICIAL INSPECTION Article 616 – Purpose - The judge or collective court whenever found necessary, may, by its own initiative or upon the application of the parties, visit the site in question, in order to inspect the site to satisfy about any fact which is necessary for the decision of the case. Such a step may also serve the purpose of the judge appraising the site in order to frame questionnaire to which reference is made in article 515. •Articles 616-619 – Judicial Inspection Article 617 – Intervention of parties - The parties shall be notified of the date and time of the inspection and they may themselves or through advocate furnish to the judge the clarification desired by the judge and also to bring to his notice the facts which are of interest for the resolution of the dispute. Article 618 – Technical assistance - The judge may be accompanied by a person who has the technical competence to clarify in respect of examination and interpretation of the facts which require consideration. Such person shall be designated in the order which directs the inspection and requisitioned from the concerned office, if he is a public functionary, or notified to remain present. § Sole paragraph: The technician shall also be requisitioned to remain present at the trial, when the inspection has not been carried by the collective court. Article 619 – Inspection report - When such procedural step is not carried by the collective court, record shall be made, in which whatever is relevant for the decision shall be noted.

The result of the inspection shall be recorded and it will be freely appreciated by the judge.

SECTION VII ORAL EVIDENCE SUB- SECTION I ADMISSIBILITY AND VALUE OF ORAL EVIDENCE- WHO MAY BE A WITNESS

Article 620 – Admissibility - oral evidence is admissible in all the cases unless expressly

prohibited. •See Article 2506 of the Civil Code. Article 621 – Limits of oral evidence - Oral evidence in contradiction to or beyond the contents of authentic documents is inadmissible in so far as such documents have full evidentary force, except where there is an allegation of falsity, and is contrary to the documentary evidence or beyond the contents of the authentic documents and private documents deemed as true in terms of Article 542, except where there is an allegation of falsity, mistake, fraud, coercion or misrepresentation. •See Articles 2507 and 2508 of the Civil Code.

Article 622 – Who may be a witness - Persons of either sex, not disqualified by natural

incapacity or by law, may depose as witnesses. Article 623 - Who may not be witnesses - The following persons are disqualified by natural incapacity: 1. Those interdicted on account of dementia; 2. Those blind and deaf, in the matter the cognizance of which depends on those senses; 3. Minors of 14 years and below. •See Article 2570 of the Civil Code

Article 624 – Legal incapacity - The following persons are disqualified by law: 1. Those who can depose as parties; 2. The ascendants in the matters of descendants, and vice versa; 3. The father-in-law or mother-in-law in the matter of the son-in-law or daughter-in-law, and vice versa; 4. The husband in the matter of wife, and vice a versa; 5. The persons who, due to their status or profession, are obliged to maintain professional secrecy; 6. The persons specially debarred from deposing as witnesses on certain facts. § Sole paragraph: The provisions of clauses (2), (3) and (4) are not applicable to matters in which the verification of birth or death of the children is dealt. •See Article 2511 of the Civil Code. Article 625 – Probative value - The probatory force of the deposition of the witnesses shall be freely appreciated. •See Article 2514 of the Civil Code. SUB-SECTION II PRODUCTION OF ORAL EVIDENCE Article 626 – List of witnesses - The list of witnesses may not be altered upon the expiry of the period of limitation, prescribed for its presentation save for what is provided in article 634. A party may however desist from the examination of witnesses that have been offered. The witnesses shall be specified by their names, professions and addresses and any other particulars which are necessary to establish their identity. Article 627 – Mentioning the judge as witness - If any of the parties indicate the judge in the suit as witness, such judge shall declare on oath in the matter, if he has knowledge of facts which can affect the decision. In the affirmative, he shall cease to be a judge in the suit; in the negative, the indication shall be of no effect. § Sole paragraph: There being offered as witness any of the associate judges, the declaration that

is referred to in this article shall be made at the hearing in which the suit is continued in view of adjudication by the judge in the suit calling the attention of the other judge to the fact. If the judge is disqualified from functioning, such associate judge shall pass the matter to the judge who shall substitute the judge so disqualified. Although the judge in the suit, in view of the simplicity of the case, decides that the examination of the matter is not necessary, an order shall always be passed to the effect indicated in this paragraph when the case foreseen in it arises. •See also Article 122(7) of this Code. Article 628 – Place of recording evidence - The witnesses shall depose before the court at the hearing of the trial, except in the following cases: a) The witnesses that have to be examined in advance, in terms of article 525; b) The witnesses to be examined by letter; c) The witnesses, that are in terms of article 631, to be examined at their residence; d) The witnesses that are unable to appear in the court. •See also Article 653 (d) of this Code. Article 629 – Examination at the site - The witnesses shall be examined at the place of dispute when the court, suo moto or on the application of any of the parties, decides it to be appropriate. Article 630 – Examination by letter - When the witnesses reside outside the judicial division, the party may apply for dispatch of a letter of request for the examination indicating the questions from the questionnaire on which the witness is to depose. If letter is not sought in the list of witnesses, it shall be understood that the party has undertaken to produce his witnesses at the hearing of arguments and trial. The judge shall refuse the letter if he has reason to believe that the respective witness can come to depose before the collective court. In this case, the party may apply for the witness to be notified by letter to appear, undertaking to pay the expenses that the witness has to make with the travel. Article 631 – Persons to be examined at their residence - The following persons enjoy the prerogative of being examined at their residence; 1. The President of the Republic; 2. The State Councilors, the Presidents of the National Assembly and the Corporate chambers and

the members of the Government; 3. The archbishops and bishops; 4. The diplomatic agents of foreign nations who have granted identical privileges to the representatives of Portugal; 5. The Attorney-General of the Republic, the judges of the Supreme Court of Justice and of the High Courts and the President of Bar Council of the Advocates. § 1: When the President of the Republic is offered as a witness, the party shall immediately indicate the facts in respect of which the deposition is intended to be obtained. The judge shall make respective communication to the Ministry of Justice that shall be transmitted, through the Presidency of the Council, to the President of the Republic. If the President of the Republic declares that he does not have knowledge of the facts in respect of which application is made for his deposition, the same shall not take place; if he declares that he is ready to depose, the judge shall solicit from the office of the President of the Republic, the indication of the day and time on which the deposition must be carried out which shall be attended by the Attorney General of the Republic with a secretary, so designated. The interrogation shall be made by the judge in the suit. The parties may attend the examination with their advocates but they can neither formulate questions nor insistent requests, the judge having the power to direct, any clarification or amendment when considered necessary. The deposition shall be drafted by the judge, if the deponent does not desire to draft and written

by the secretary designated by the Attorney General of the Republic.

§ 2: When any of the persons mentioned in clauses (2), (3), (4), and (5), are offered as witnesses, the day and time for examination shall be fixed as is indicated by such persons. The witness shall be notified, observing the common provisions relating to the examination, except in respect of representatives of foreign powers if there is a treaty or convention that stipulates special formalities. § 3: If the judge is of the opinion that the deposition of the persons mentioned in clauses (2), (3), (4), and (5) shall take place before the collective court, it shall so decide; but the deposition will no longer be recorded at the residence of the witness on the day and at the time fixed in agreement with the witness. If the witness has deposed before the judge in the suit and the collective court adjudges as necessary to hear the witness, he shall be examined before the collective court afresh in terms of

the first part of this paragraph. Article 632 – Examination of persons disabled by illness - The judge may verify, through a physician appointed by him, if the witness is really unable to appear before the court and, in the case in affirmative, if he can depose. He being, unable to appear, the deposition shall take place where the deponent is found, it being possible, on the day and at the time fixed by the judge, upon hearing the physician in attendance, if necessary. Only the judge in the suit or the collective court shall remain present for the deposition, as determined.

examined. The witnesses that the parties agree to bring shall not be notified. Article 634 – Consequences of absence - In the case of absence of any witness that the party does not dispense with, the following shall be observed: 1. If the witness has expired after the list being filed, the party has a right to replace the witness; 2. If the witness is sick and his immediate examination is not possible, the party can substitute him or apply for postponement of the examination by a period that appear indispensable, which is no case shall exceed 30 days; 3. If the witness has changed his residence after being offered as a witness, the party can substitute him, or apply for examination by letter, provided that it is not outside the continent or the island where the cause accrued, or undertake to present the witness on the day that is fixed afresh; 4. If the witness has not been notified, or if he fails to appear due to any other legitimate impediment, the examination shall be postponed, but if it is not possible to examine him within a period of 30 days, the party can substitute such witness; 5. If he remains absent without a just reason, he shall depose under arrest; where he is not found, he can be substituted. § 1: The examination cannot be postponed due to the absence of witnesses if the party has undertaken voluntarily to produce the same, and there shall not be a second postponement of examination totally due to absence of the same or other witnesses.

§ 2: When the depositions are to be written, only the examination of the witnesses who remain absent shall be postponed; in other case, the postponement shall be total or partial depending upon the circumstances. § 3: The witnesses, which the party has agreed to produce, cannot be substituted, neither can witnesses that have to be examined by letter of request, be offered in substitution. § 4: The substitution shall be applied for as soon as the party has knowledge of the fact which causes it. The new witness shall not depose before the lapse of 3 days from the date when the opposite party had judicial knowledge of the substitution, save if the witness is withdrawn during this period. If it is not possible to postpone the examination by a necessary period of 3 days, to which the opposite party may apply, the substitution shall be without any effect. § 5: The justification for absence shall be done in the very act. This not being possible, it shall be done within a period of 5 days.

Article 635 – Maximum number of witnesses which parties can examine - The plaintiff

cannot offer more than 20 witnesses; equal limitation is applicable to the defendants who filed same written statement. The names of the witnesses in the list that exceed the number indicated above shall be considered not to have been written.

Article 636 – Number of witnesses as to each fact - On each of the facts specified in the

questionnaire, not more than 5 witnesses may be examined, not including those who have declared they know nothing. Article 637 – Facts over which oral evidence is not admissible - The examination of witnesses is not admissible: a) In respect of facts that are proved by documents or which can be proved only by documents;

b) In respect of facts proved by agreement or admission of the parties.

Article 638 – Order of depositions - Before the commencement of the examination, the witnesses shall be gathered in a hall from where they shall leave to depose in the order in which they are mentioned in the list, first the witnesses of the plaintiff and thereafter those of the defendant, save if the judge decides that the order be altered or if the parties agree to the

alteration. But if any of the functionary of the office appears as witness, he shall be the first to depose, although he has been offered by the defendant. § Sole paragraph: While the witnesses are gathered, they shall be watched so that they do not communicate over the facts which are to be subject matter of the dispute. Article 639 – Oath and preliminary interrogation - The judge, after observing what is provided in the article 57 6, shall proceed to identify the witness and shall question him if he is a relative, friend or enemy of any of the parties, if he has a relation of dependence with any of the parties and if he has interest, direct or indirect, in the suit. When it is confirmed by answers that the declarant is not fit to be a witness or is not the person who was offered as witness, he shall not be admitted to depose. Article 640 – Objections to the admissibility of a witness - The party against whom the witness is produced can object his admission on the same ground on which the judge shall object to the deposition. The objection shall be presented when the preliminary interrogation terminates. If admitted, the witness shall be questioned on the matter of fact and, if he does not admit, the opposite party shall prove the same by persons who are witnesses to this act, not being more than 3 witnesses for a fact. The judge shall forthwith decide whether the witness should depose. § Sole paragraph: If the party has declared that he has not waived the appeal from the decision passed in respect of the objection, he shall mention the grounds for the appeal, the answers of the witness and the depositions of the witnesses who have been examined in respect of the incident. Article 641 – Mode of deposition - The witness shall be questioned as regards the facts indicated in the questionnaire which have been pleaded by the party who offers the witness, and the deposition shall be precise, indicating the reason for and any circumstances that can justify knowledge of the facts. If the witness deposes before the collective court, the questioning shall be done by the advocate of the party which has offered the witness and the advocate of the other party shall be able to interrogate in relation to the facts which have been deposed, the instances that are absolutely indispensable for the witness to complete or clarify the deposition. The President of the court shall object those advocates who treat the witness unceremoniously

and put questions and observations, that are irrelevant and suggestive, deceitful or vexatious; the president as well as the associate judges may always put questions that are convenient for bringing out the truth. The interrogation and the insistence, instead of being made by the advocates, shall be made by the presiding Judge of the 'court when he considers it more appropriate. § 1: If the deposition does not take place before the collective court, the interrogation shall be done by judge, and the advocates may apply for the answers to be clarified or completed. § 2: The reason for knowing cited by the witness shall be specified, as far as possible. If the witness says that he knows by seeing, he has to explain at what time and place he saw the fact, if there were other persons who also saw and what it was; if he say that he knows by hearing, he has to indicate who heard, at what time and place, and if there were other persons there who also heard, and who they were. § 3: The witness may, before answering, refer the file or demand that he is shown certain documents that exist therein; he can also present any object or document to corroborate his deposition. Only those objects and documents shall be received and brought on record which the respective party could not have produced.

Article 642 – Applicability of provisions relating to deposition by party - The provisions

contained in paragraph 1 of article 577 and in article 579 are applicable to the deposition of the witnesses.

Article 643 – Refutation - The party against whom the witness is produced may refute the

statement of the witness, alleging any circumstance which may affect the source of knowledge alleged by the witness or the faith which he deserves. The refutation shall be put forth when the deposition terminates. If the refutation is to be considered, the witness shall be heard in respect of the matter of fact in the refutation. When this matter of fact is not admitted, the party may prove it by documents or witnesses, not being more than 3 witnesses for each fact. § 1: The witnesses have to be presented and examined immediately.

The documents may be offered until the stage at which decision must be passed in respect of the facts. § 2: What is provided in the sole paragraph of article 640 is applicable not only when the party has not waived the appeal, but also when the deposition of the refuted witness has to be written. Article 644 – Confrontation of witnesses - If there is direct opposition, in respect of certain fact between depositions of the witnesses or between them on one hand and the deposition of the party on the other, the confrontation of the persons who are in contradiction may take place suo moto or on application of any of the parties. § 1: If the persons to be confronted are present, the confrontation shall be done immediately; if they are not, a day shall be fixed for the step that shall be before the commencement of the argument in the suit, when the witnesses have not deposed before the collective court. § 2: If the witnesses to confront have deposed by precatory letter in the same judicial division, the receiving court is bound to order or authorize the confrontation. If the contradiction between

deposition produced in different judicial divisions is confirmed, the collective court may, if it

decides as absolutely indispensable, order the persons to be confronted to appear before it, dispatching letters for notification of the person who reside outside the judicial division when the respective party does not take charge of presenting them. § 3: When the confrontation does not take place before the collective court, it shall be recorded in writing. Article 645 – Travel expenses and compensation - The witness who has been notified has right to the expenses of dislocation and to a compensation, fixed by the judge, for each day on which he has appeared, whether he is residing outside the seat of the court or not ant whether or not he has rendered the deposition. § 1: The amount shall be immediately paid by the party that has offered the witness, thereafter entering it in the rule of costs; if the witness does not wish to receive the amount, it shall be deposited to the account of the court. § 2: If the witness has been offered by an entity exempted from payment of anticipated expenses and costs, the amount shall be determined for entering in the rule of costs. Article 646 – Summoning by the Court - If it is found, by examination, that certain person not

offered as a witness has knowledge of a fact important for the decision of the suit; the court may order that such person be notified to depose. The deposition shall not take place before 3 days, save if the opposite party waives this period.

Article 647 – Arguments and Judgment - The hearing of the suit shall be conducted with the intervention of the collective court. If the questions of fact are decided by a single judge, when it ought to have been decided by the collective court, the decision shall be annulled. The findings of the collective court on the questions of law shall be deemed to have not been written.

Article 648 – Time for study of file - Upon the production of evidence that shall take place

before the hearing of the arguments and adjudication, or on the expiry of the period fixed in the letters of request, the judge shall allow the advocate of each of the parties, a period of 5 to 10 days for examination of the file. At the end of this period, a day shall be designated for hearing and decision of the suit. Article 649 – Study of file by judges - Before the arguments, each of the associate judges shall examine the file for 5 days, save if the judge decides that the same is dispensable in view of the simplicity of the suit.

Article 650 – Requisition or designation of technical expert - When the matter of facts gives rise to difficulties of technical nature, the solution of which depends on special knowledge which the court does not have, the judge may requisition the presence of a specialized functionary or, in his absence, appoint a competent person who may attend the hearing and render necessary clarifications. The disqualification and reclusion apply to such technical persons, the same way as apply to the

experts. The requisition, as a rule, be made by an order that shall fix a day for hearing and decision. Such technical persons shall be paid the expenses for travel in advance. Article 651 – Powers of Presiding Judge - The President of the court enjoys all the necessary powers to make the hearing brief and purposive and the decision in the suit just. He is competent, in particular, to: 1. Conduct the proceedings; 2. Maintain order and enforce respect for the institutions in force, the laws, and the court; 3. Take necessary steps for the suit to be conducted with dignity and order; 4. To encourage, with the greatest courtesy and politely, the advocates and the Public Ministry to curtail their applications and submission when they are manifestly excessive, and to confine it to the matter of the suit, and withdraw the liberty when they do not comply with the exhortations; 5. To bring to the notice of the advocates and the Public Ministry the need to clarify certain obscure or doubtful points. •See also Article 155 of this Code. Article 652 – Adjournments - The hearing shall be taken up, at the fixed time, after the presence of the persons summoned. But, it may be adjourned: 1. If it is not possible to constitute the collective court. 2. If any person who has been summoned is absent and he cannot be dispensed with, save if his appearance appears probable in the course of the hearing and it is not inconvenient to hear him at the stage when he appears; 3. If the document is offered which the opposite party needs to examine, save if the examination could be made in the very act, suspending the proceedings for some time; 4. If any of the advocates remain absent for a just and unforeseen reason. § 1: Adjournment is not permissible by agreement between the parties, neither can the hearing be adjourned more than once due to absence of advocate. § 2: What is provided in clause (2) is without prejudice what is provided in paragraph 1 of article 634, as regards the prohibition of second adjournment due to the absence of witnesses.

Article 653 – Procedure at the hearing – If there is no reason to adjourn the arguments the

following order shall be observed: a) The President shall give an opportunity first to the advocate for the plaintiff and then to the

advocate for the defendant for each one of them to explain, with great precision and clarity, the case of client in the suit. The advocates shall briefly explain the case of the parties and the grounds that serve as its base. The president may make observations that he thinks convenient. b)Thereafter the personal depositions of the parties shall be proceeded with ; c)The examinations and arbitrament having taken place, the questions and the answers given by the experts shall be read and they shall give clarifications that are asked from them; d)This shall be followed by examination of the witnesses; e)Upon the examination, the arguments shall commence. The president shall give an opportunity to the advocate for the plaintiff to make his oral submissions and, thereafter, in the same way, to the advocate for the defendant. Each advocate may reply once. In the submissions, the advocates shall make a critical examination of the evidence produced, shall seek to demonstrate which findings of facts stand established and shall address on the legal aspects of the matter and which fact may be considered as proved applying the law to the facts. f)The court may, at any stage, before the arguments, during them or thereafter, hear the specialized functionary or the technical person so ordered; g)Upon the arguments, the President can formulate new queries, when he considers them indispensable for the proper decision in the suit. The court shall assemble at the conference hall to decide. If the discussion is not sufficiently clear, he may return to the court room and hear the persons as he deems fit; he may also order any steps which he considers indispensable. The factual aspects shall be decided by means of a judgment. Among the facts referred to in the questionnaire, the judgment shall declare what facts the court finds to be proved or not proved; but shall not pronounce in respect of facts proved by admission or agreement between the parties, by authentic or authenticated document, or by the private documents referred to in article 542. The judgment shall be drawn by the President, without noting the negative opinion. The president, upon the judges returning in the court room, shall read the judgment; h)Upon reading, any of the advocates may object against the deficiency, obscurity, or contradiction in the decisions passed. The objection has to be filed immediately;

i)There being objections, the court shall assemble afresh to pronounce in respect of such objections. No further objections shall be admissible against the decision passed from such objections, but, there being appeal, the superior court may ex officio annul the decisions of the collective court, when such decisions are considered deficient, obscure, or contradictory. § 1: The persons who have been heard cannot remain absent without authorization from the president, such an authorization shall not be granted when there is opposition from the associate judges, from the Public Ministry, or from the advocates. § 2: The advocate may be interrupted during the oral submissions either by the president, or by the advocate of the opposite party, but in this case only with his consent and with that of the president. The interruption has to have as it aim the clarification or the rectification of any affirmation. •See Article 650, article 69, sole paragraph of the Judicial Statute. Article 654 – Requirement of full attendance by all judges - Only the judges who participate in all the acts of judicial inquiry and arguments conducted at the hearing or hearings of arguments and adjudication can intervene in the decision on the matter factual aspects. § 1: If during the arguments and adjudication, any of the judges expire or is permanently incapacitated, all the acts already performed shall be repeated; the incapability being temporary, the adjudication shall be adjourned for a time that is indispensable, unless the circumstances suggest preference to repetition of the acts already performed. § 2: The judge who is transferred, promoted or retired shall complete the adjudication, except if the retirement has its ground the absolute incapacity, physical or moral, for exercise of the charge. The substitute judge shall continue the intervention, notwithstanding the return to service of the effective judge. •See Article 67 of the Judicial Statute

Article 655 – Freedom in adjudication - The collective court adjudicates according to its

conviction, formed upon free appreciation of evidence, in order to reach to the decision that appears just to it. But when the law demands any special formality for the existence of or the evidence of a juridical act or fact, the same cannot be dispensed. Article 656 – Continuity of hearing - The hearing shall be continuous; it may only be interrupted by force majeure or by reason of absolute necessity. It not being possible to conclude

the arguments and adjudication in only one day, the president shall fix the continuation for the following day or the next, in a manner that between the start of the proceeding and the adjudication, normally, an interval of more than 10 days does not pass, and in no case more than 20 days, even if for this the court has to function on vacations or on holidays. Article 657 – Secret hearing - In the suits referred in a first part of the second period of article 167, the hearing shall be secret and the depositions, if they are written, shall not be used after the adjudication.

SECTION I PREPARATION OF THE JUDGMENT Article 658 – Supervision exercised by judge - Upon the adjudication by the collective court, the suit shall be put up before the judge, who shall examine whether the legal formalities are complied with and if the judicial functionaries were diligent in fulfilling the duties of their office, taking the measures and applying appropriate penalties. Thereafter, the final judgment shall be passed. § Sole Paragraph: The period to pass the final judgment is fifteen days. Such period may be extended only in case of just impediment which must be duly established. •Articles 658-676 – Judgement - Corresponding provisions in C.P.C. 1908: - oJudgement and Decree – O. XX Article 659 – Preparing judgment :- narration, grounds and decision - The judgment shall commence with the narration, in which the names of the parties shall be mentioned and a clear and concise explanation of the prayer and its foundation, as well as the foundation and the conclusions of the defence shall be given, thereafter indicating concisely the occurrences, which may provide for the a background to the litigation. The narration shall end by indicating the state of the suit as has emerged from the arguments, settling with great clarity and precision the

questions to be addressed. Then come the grounds and the decision. The judge shall take into consideration the facts admitted by agreement, those admitted by non denial, and those which the collective court found as proved. Thereafter, the law shall be interpreted and applied to the facts, concluding by the final decision. Article 660 – Questions to resolve – Order of the Judgement - The judge shall take cognizance in the first place, and by the order established in article 293, of the questions that may lead to the discharge of the Defendant. The judge shall decide all the questions which the parties have submitted for its appreciation, excepting those questions, the decision of which does not survive in view of the answer given in others. The questions which are not raised by the parties may not be resolved, save if the law permits or imposes the suo-motto cognizance of such questions. Sole Paragraph: Not only those which are expressly referred are deemed to be answered, but also others which considering the controversy raised are a requirement or necessary consequence of the judgment expressly pronounced. Article 661 – Limits of decreeing - It is not lawful to grant a relief larger than, or different from what is prayed. If the plaint does not contain particulars to ascertain the object or assess, the quantity, the relief to be granted is what is ascertained and assessed in the execution. Article 662 – Judgement if obligation is not enforceable - The fact that the obligation is not enforceable at the time when the suit was filed shall not preclude the Court to take cognizance of the existence of the obligation, once the Defendant disputes the liability and that the later be directed to satisfy the liability at the time of the maturity. If there is no dispute as regards the existence of the liability, the following shall be the directions: a) The defendant shall be directed to fulfill the obligation although the obligation may become enforceable in the course of the suit or on a date after the judgment, but without prejudice to the prescribed period in the later case; b) When the unenforceability arises from the lack of breach or from the fact that there has not been a demand for payment in the domicile of the debtor, the debt shall be considered to have become enforceable upon the service of summons. § Sole Paragraph: In the cases at clauses (a) and (b), the plaintiff shall be directed to pay costs

and to settle the fees of the advocate for the defendant. Article 663 – Subsequent events - In the judgment, the facts constituting or extinguishing the right that take place after the filing of the suit shall be taken into consideration in the manner that the decision corresponds to the state of things upon the end of hearing. The circumstance of the juridical fact having arisen or ceased to exist in the pendency of the suit shall be taken into account for imposing costs, Article 664 – Judge not bound by parties’ arguments - The judge is not bound by submissions made by the parties regarding the investigation, interpretation and application of the law; but he is to act within the facts pleaded by the parties, subject to what is laid down in article 518. Article 665 – Collusion to subvert law - When the conduct of the parties and material available in the suit creates conviction in the mind of the judge, the plaintiff and the defendant have colluded in the suit to do a same transaction or achieve an objective prohibited by law the judgment of the Court shall obstruct the realization of abnormal objective. SECTION II VICES AND REVIEW OF THE JUDGMENT

Article 666 – When Court becomes ‘functus officio’ - Upon passing of the judgment, the

jurisdiction of the judge shall, immediately, come to an end as regards the subject matter of the suit. However, the judge may rectify material errors, supply the deficiency and clarify the doubts existing in the judgment and review the same as regards the costs and fine. § Sole Paragraph: What is provided in this article and the following articles applies to orders, to the extent possible. Article 667 – Rectification of material errors - Where it is found that in the judgment, there are mistakes in writing or of calculation or any material inaccuracies due to the omission or manifest lapse, they may be corrected by a simple order, on the application of any of the parties or suo

moto by the judge. Where appeal lies, rectification may take place before the file is remitted to the appellate court, however, the parties may submit before the appellate court what they deem fit in respect of their right as regards the rectification. If none of the parties prefer appeal, the rectification may be done at any time and an appeal would lie there from. § Sole paragraph: From the order rejecting the rectification no appeal lies. Article 668 – Grounds for nullity of judgment - The judgment will be null and void in the following cases: 1. When name of the parties and signature of judge is omitted; 2. When the factual foundation and the law on which decision is based are not specified; 3. When the grounds are in contradiction to the decision; 4. When the court failed to address to the questions to which it ought to have addressed, or addressed to the questions to which it ought not to have addressed; 5. When the relief is granted is in excess or in form different than prayed. Article 669 – Curing of omission or nullities - When the judgment omits to grant the costs or contains nullities, as mentioned in the preceding article, any party may apply, within the time prescribed for filing appeal, that cognizance be taken of the omission or nullity and that the omission be filled and the nullity be cured. The opposite party shall be heard and may file reply within three days and thereupon decision may be passed. If the application is allowed, the decision passed is deemed as complement of the judgment and shall become integral part of the same. § Sole Paragraph: When no appeal is admissible against the judgment, the application may be made within the period of eight days. Article 670 – Clarification and correction of judgement - Any of the parties may also apply for: a) Clarification of any obscurity or ambiguity existing in the judgment; b) That the judgment be corrected in respect of costs and fine.

Whatever is provided in the preceding article is applicable to the present article also. SECTION III EFFECTS OF THE JUDGMENT Article 671 – Binding force of judgement become final - Once no appeal is filed against the judgment or remedies available and have been exhausted, the decision shall have binding force within the suit and beyond it within the limits prescribed in articles 501 onwards, without prejudice to what is provided in article 771 onwards. But, if the defendant has been directed to furnish maintenance or to effect other payments dependent on the special circumstances as regards its extent and duration, the judgment may be altered, to the extent that the circumstances that determine the direction are modified. Article 672 – Binding force of Orders - The orders passed on the merits of case shall have the same force as that of the final judgment. The orders that are solely in respect of procedure have binding force only as regards the suit, save where, by its nature, no appeal from order is admissible. •See also Article 679 of this Code. Article 673 – Scope of Judgment Res judicata - The judgment constitutes res judicata in the precise terms and limits of the adjudication. If the party failed to succeed for not having fulfilled a condition, for a period not having expired, or for certain fact not having been performed, the judgment shall not preclude the party from making the prayer afresh when the condition is fulfilled, the question of limitation is satisfied or the fact is performed. Article 674 – Res judicata on questions of status - The case decided on the question of legal status produces effects in relation to all persons when the suit is filed against all the persons directly interested and there has been opposition.

Article 675 – Contradictory judgments - There being two contradictory judgments on the same object, the case decided in the first place shall hold good. •See also Article 763, paragraph l of this Code. Article 676 – Judgment operating as mortgage - The judgment that directs the defendant to effect payment of a certain sum, money or in kind, even before the case is finally decided, creates mortgage, and it may be registered to produce effects in relation to third party. If the relief granted, the plaintiff may apply for registering the mortgage for security of the amount, within the limits of the value of the suit, which is likely to stand to his credit. The defendant having been directed to render a thing or a fact, the plaintiff cannot apply to register the mortgage while the obligation of the defendant is not converted into compensation for loss and damages. § 1: The mortgage may be registered even in case the plaintiff is secured by means of seizure. In this case, when the mortgage is registered, the registration of the seizure lapses. § 2: The registration of the mortgage is not precluded by the fact that the plaintiff may avail of the remedy of execution of the judgment. •See also Articles 931 and 934 of this Code.

SECTION I GENERAL PROVISIONS

Article 677 – Kinds of appeals - Judicial decisions may be challenged by way of appeals.

Appeals are ordinary and extra ordinary. The ordinary appeals are the appeals from final judgment, (‘apelação’) appeal from the latter (‘revista’), appeal from order (‘agravo’), complaint against rejection of the appeal and appeal to full court. Extra ordinary appeals are opposition of third party and revision. § Sole Paragraph: A decision is considered as “res judicata” when it is not permissible under the law to prefer appeal or as soon as ordinary appeals are exhausted. •Articles 677-778 – Appeals - Corresponding provisions in C.P.C. 1908: -

oAppeals - Ss. 96-115, O.XLI, XLII and XLIII •Under art.677 there are the following 6 types of appeals:- Ordinary appeals are: 1)Appeal from final judgment – (“Apelação”) – art.691 2)Appeal from the latter – (“Revista”) – art.721

3)Appeal from order (agravo) – (“Agravo”) - art.733

4)Complaint (against the rejection of the appeal) – (“Queixa”) art.689 5)Appeal to the full court – (“Recurso para o tribunal pleno”) -art.733 Extra ordinary appeals are:

•These are regarded as appeals under Section 104, C.P.C. •Articles 677-782 - Appeals is a wider variety of appeals than ours. •This matter has been dealt with by Judgment dated 22/12/2015, of the full Bench, Bombay High Court, Goa in Misc. Civil Application no. 926/2013, Mrs. Bharti Parkar v/s. Mr. Vilas Mahadev Pilankar & ors. but some types of appeals are not mentioned even in that judgement. Article 678 – Cases and matters which admit appeal - Ordinary appeal is maintainable against the judgment passed in the cases which exceed the pecuniary jurisdiction of the court appealed from. However, if the ground for appeal is absolute lack of jurisdiction of the court as to subject matter or violation of “res judicata”, an appeal always lies whatever may be the value of the cause. § Sole Paragraph: From the order fixing for the cause, the incidental proceedings or preventive and conservatory proceedings a value within the pecuniary jurisdiction of the trial court or High Court, appeal lies on the ground that the value exceeds the pecuniary jurisdiction. Article 679 – Non-appealable decisions - No appeal lies from the orders meant for mere routine prosecution of the case nor against those passed under discretionary powers. In orders which are of mere routine nature, orders meant to regulate procedural steps in accordance with law are included. Article 680 – Who can appeal - With the exception of the appeal named opposition by third party, an appeal may only be filed by one who, being the principal party in the cause, lost the same. However, the persons directly affected by the decision may appeal therefrom, even though they are not parties to the litigation or they are not necessary parties.

Article 681 – Loss of right to appeal - It is open to the parties to renounce in advance the right to appeal; but, such renunciation is lawful only when it proceeds from both the parties. It is not lawful for a party, to prefer appeal when he had accepted the decision. Acceptance may be express or tacit. Tacit acceptance is that which flows from doing without any reservation any act, incompatible with the desire to prefer an appeal. § Sole Paragraph: What is provided in this article is not applicable to the Public Ministry. Article 682 – Principal and subordinate appeal - If both the parties’ claims are dismissed, each of them has to appeal if desires to obtain a modification of the decision to the extent it is not favourable to it. However, it may file a principal appeal or a subordinate appeal. Principal appeal is to be filed within the period and in the manner prescribed for principal appeal as per regular procedure. The subordinate appeal is to be filed within 5 days from the notice of the order admitting appeal filed by the opposite party. If the first appellant withdraws the appeal or it becomes infructrous (lapses) because the court does not take cognizance of the same, the subordinate appeal lapses and all the costs shall be the liability of the principal appellant. Article 683 – Benefit to non-appellants - The appeal presented by one of the parties benefits the others in case of joinder of necessary parties. Besides the above case it may benefit others also:- 1. If the latter parties, to, the extent there is common interest, extend their support to the appeal; 2. If they have an interest which depends essentially upon the interest of the appellant; 3. If the judgment is against them as joint debtors, unless the appeal, as per its grounds, is relating only to the appellant. § Sole Paragraph: The support to the appeal may take place, through application until the time fixed for presenting the pleadings of the appellant. With the act of support, the interested party owns up the steps already taken by the appellant and those which he may adopt later. However, it is lawful to the supporting party, at any time to take the place of principal appellant while prosecuting the matter on his own; therefore, if the appellant withdraws the appeal, he may be given notice of the withdrawal, so that he may prosecute the appeal further as principal appellant.

Article 684 – Right to restrict appeal to some of the successful parties - There being several successful parties, all of them shall be notified of the order admitting the appeal. However, it is lawful to the appellant, except in the case of joinder of necessary parties, to exclude from the appeal one or some of the successful parties, declaring, in the application for filing the appeal, that he accepts the decision in relation to them. Article 685 – Determination of subject matter of appeal - Where the decision contains distinct parts, the appeal may be limited to some of them, provided that in the memorandum of appeal the portion which is appealed from is specifically indicated. In the absence of such specification, the appeal shall embrace whatever is decided against the appellant. In the conclusions of the reasoning and submissions, the appellant may restrict the initial object of the appeal. § Sole Paragraph: The effects of the judgment, to the extent not appealed from, shall not be defeated by the decision of the appeal, nor by the annulment of the proceeding. Article 686 – Limitation for filing appeals - The limitation for presentation of the appeal is of eight days, counted from the date of notice of the order or judgment. If the party is ex-parte as per second clause of article 255, the limitation starts from the date of publication defined therein. If the case is of oral order or oral judgment, reproduced in the proceedings, the limitation starts from the date they were pronounced, if the party was present or notice was given to the party to remain present; in the contrary case, the limitation starts from the service of the notice of the order or judgment and in the event no notice is served, from the day the interested party had knowledge of the decision. § 1: If the default ex-parte has ceased before the passage of eight days subsequent to the publication, the notice or judgment is required to be given and time limit shall start from the date of service of the notice. § 2: If any of the parties applies for rectification, completion, clarification or reform of the judgment in accordance with articles 667 to 670, the time limit for the appeal shall start only after notice of the service of the decision passed on such application. § 3: In case there is already an appeal filed against the original judgment or order at the time when, on application of the opposite party new judgment is passed by completing, clarifying or

modifying the original judgment, the appeal shall lie against the revised judgment; however, it is lawful for the appellant to widen or restrict the scope of the appeal in accordance with the alteration which the judgment or order under review has undergone. Article 687 – How to file appeal - The appeals are filed by way of application expressing the desire to prefer indicating therein the type of appeal. The application shall be presented in duplicate in the office of the court which passed the judgment which is appealed from. The date of receipt of application fixes the date of filing of the appeal. The duplicate shall be handed over to the opposite party at the time of service of the notice. Article 688 – Order on memo of appeal - Thereafter file shall be placed for orders. The application shall be rejected if it is found that no appeal lies against the order, or that appeal was presented beyond time, or that the appellant does not satisfy the requirements to file an appeal; but, application shall not be rejected on the ground that there is an error in the indication of the type of the appeal. If the appeal is filed under the wrong category, it will be ordered to be proceeded with under the proper category. Article 689 – Appeal by way of complaint - No appeal lies from the order admitting an appeal. Against a decision rejecting an appeal, the applicant may present a complaint to the Chief Justice of the higher court which is competent to hear the appeal. The complaint shall be filed, processed and decided in the following manner; a) Within 8 days from service of the notice of order not admitting the appeal, the party shall present in the office an application addressed to the Chief Justice of the superior court, indicating the grounds which justified the admission of the appeal and shall indicate the documents of which certified copies are required to support the complaint; b) The application shall be appended to the proceedings and the same shall be placed for orders and within 48 hours order shall be passed on the same application or annexed to it either admitting the appeal or giving reasons why the decision is maintained. If the appeal is admitted, the application and the order shall be filed in the proceedings and the complainant shall pay the costs of the certified copies already issued; in the negative the judge may direct issuance of certified copies which are found necessary; c) If the complaint is to proceed further, the office shall notify the opposite party, disannex the

application and grounds given by the judge and upon annexation of certified copies within 3 days account will be made. Once an account is made notice will be issued to the applicant to deposit the amount within 48 hours and shall make prepayment of the cost for remission of the file of the complaint for the purpose of decision, failing which it will be treated as abandonment of the case; d) Once the costs and advance are deposited, the file shall be produced within 48 hours in the office or in the post office and opposite party till that time may give his say onto the complaint. e) After the receipt of the proceedings in the higher court, the head of the office shall present it for the decision of the Chief Justice who within 48 hours shall decide whether the appeal is to be admitted, if the Chief Justice is of the view that the subject is not very clear he may ask clarifications or direct production of the certified copies which are found necessary, provided that the decision is not delayed for more than 8 days; f) The decision does not admit of any further appeal, but, when the complaint is admitted the superior court is not prevented from deciding the main matter and dismiss the same; g) The proceedings of the complaint shall be returned within 48 hours. If the complaint is allowed the respective proceedings shall be incorporated in the main file and the judge shall pass the order admitting the appeal; if not, the complaint shall be filed. The costs paid and the deposit made shall be given due destination. § 1: Against the complaint addressed to the Chief Justice of the Supreme Court of Justice, what is provided in the previous clauses shall be applied, with following modifications; 1. The complaint is admissible only when it is refused by the collective decision; 2. Once the application is appended, the office shall present it in the first session and there the assignee judge and other companion judges shall draw up the collective judgment either admitting the complaint or giving the reasons why the previous decision is maintained. In the last case the collective judgment shall indicate the parts of the record of which certified copies shall be issued. § 2: On the ground that the appeal from order should be forwarded immediately to the superior court, also complaint can be lodged against the decision by which the appeal from order has been retained by court whose decision is appealed from. In such case, with necessary adaptations, the rules prescribed in the clauses of this articles and its paragraph 1 shall be applicable.

Article 690 – Burden to argue and frame grounds - The appellant shall present his submissions with reasons in which he will indicate in brief the grounds based on which he seeks modifications or reversal of the judgment or order. In the absence of the reasoning and submissions, the superior court shall not take cognizance of the appeal; if the submissions and reasonings do not contain conclusions or in the same there is no indication of the law infringed the judge or the assignee judge shall invite the advocate to indicate the grounds of the appeal and specification of the law violated, failing which no cognizance of the appeal shall be taken. SECTION II

APPEAL FROM JUDGEMENT (“APELAÇÃO”)

SUB-SECTION I FILING AND EFFECTS OF THE APPEAL Article 691 – Appealable judgements - Appeal from judgement lies: 1. From the final judgment and from the curative order, when they take cognizance of the merits of the case. 2. From final judgment passed on the incidental proceedings of the falsity (forgery), on the declaration of the heirship passed in accordance with article 378, and of the judgment which decide objections against seizure, listing or against the injunction on new construction, when cognizance has been taken of the subject of the incidental proceedings or of the opposition. Article 692 – Appeal operating as stay or otherwise - Appeal preferred from a court which does not have pecuniary jurisdiction has the effect of staying the execution of the judgment. The appeal arising from the court of judicial division, shall as a rule, stay the operation of judgment, but it shall not operate as stay: 1. When the judgment is based on bill of exchange, promissory note, cheque, postal order , invoice (bill of sale) or any other writing signed by the defendant; 2. When the judgment orders demolitions, repairs and other equally urgent steps; 3. When it is passed in suits based on contracts of deposit, transport, boarding, domestic service,

salaried employees and contract of work; 4. When maintenance is awarded; 5. When the judge is of the view that the suspension of the execution may cause to the unsuccessful party considerable prejudice. But, the unsuccessful party may, in such case, avoid the operation declaring, when heard that he is ready to furnish security.

Article 693 – Application that judgement be not stayed - The operation of the judgment

without stay shall not be granted in any of the cases of previous articles without an application by the successful party. Such application shall be made within the period of three days from the date of service of the notice of the order admitting the appeal from judgment. In the same application request will be made to keep authentic integral copy of the judgment. When the successful party does not want or cannot get provisional execution of the judgment, he may apply, within aforesaid period that the appellant furnish security, in the event he had not already given the guarantee by way of mortgage, in accordance with article 676. The security may be applied for within the period of three days from the date of notice of the order which had granted stay of the operation of judgment. Article 694 – Steps for declaring that the judgement was operative - Once the application is made that operation be granted without stay of the judgment, the appellant shall be heard as per clause no. 5 of article 692. The decision passed may be challenged only in the respective reasonings in the submissions. After the application has been granted time shall be fixed to extract integral list of the impugned judgment for the record which will comprise solely of impugned judgment. § Sole Paragraph: The respondent may apply that in the certified copy other portions of the record be included at his own cost. Article 695 – Basis for fixing security - The security referred to in clause no. 5 of article 692 and article 693 shall be furnished in any other manner and for this purpose the following shall be taken into consideration: a) The amount decreed when furnished in cash or in kind; b) The value of the assets calculated as per the value of the cause when it is a case of delivery of mobiliary assets;

c) The income from the assets for two years when it is a case of delivery of immobile assets and the income shall be calculated at the rate of 5% of the value of the assets based on value of the cause. § Sole Paragraph: If the appellant has been directed to deliver the part of the assets and there is difficulty in fixing the security, a valuation by an expert appointed by the judge shall be done to determine: in which proportion that part is in comparison with the totality. Article 696 – Guarantee to Respondent where security not furnished by Appellant - In the case of article 693, if the appellant does not furnish security within the time fixed for the purpose, the respondent may apply for mortgage or seizure for his guarantee.

Article 697 – Authentic copy for furnishing security - Where the furnishing of security or

omission to do so results in a delay exceeding ten days, authentic integral copy of the judgment shall be extracted and kept on record for the purpose of pursuing further the incidental proceedings and the appeal against the judgment shall take own course. § Sole Paragraph: The authentic copy of the judgment shall include besides the judgment other records absolutely indispensable, specified in the order. SUB-SECTION II FORWARDING THE RECORDS OF THE APPEAL

Article 698 – Intimating the account - Once the application for presenting appeal has been

granted, after complying with the provisions of the previous subsection the proceedings shall proceed the accounts and thereafter notified to the appellant within 24 hours. If he does not have an advocate appointed in the seat of the court and he has not chosen domicile, the account shall be sent to him by post within same time the quantum of the cost accompanied by acknowledgement due. Article 699 – File inspection for filing submissions - Any party may within 5 days after the

deposit of the costs apply for examination of the file for preparation of submissions and

reasonings before remitting the file of the appeal to the Superior Court. The time limit for the examination of the file shall be between 10 to 20 days.

If both the parties have applied for examination of the file, the file will be handed over first, to the appellant and thereafter to the respondent. After the return of the file, the same shall be sent to the superior court or remitted within 48 hours. If none of the parties applied for examination, the time limit for the delivery or remittance shall start from the time when limitation starts. SUB-SECTION III HEARING OF THE APPEAL Article 700 - Assignee Judge - (“Relator”): function - forwarding proceedings to the Bench - The judge to whom the file has been allotted becomes the Assignee (“Relator”) and it is for him to pass all orders until final judgment. In the decision on the object of the appeal and all the questions arising therein the judges following the Assignee Judge shall intervene, as per their order, § Sole Paragraph: When a party is aggrieved by any order passed by the Assignee Judge, other than a purely administrative order for prosecuting the appeal, he may apply that a collective judgment be passed by intervention of other two judges, The Assignee Judge shall submit the case papers to the conference in the first session, subsequent to the presentation of the application. From the judgment of the bench, appeal may be filed by the party who is arrived by the judgment, but appeal would be forwarded to the Superior Court after the final judgment. Article 701 – Preliminary examination by the Assignee Judge - As soon as prepayment of costs is done, the office shall examine the file and thereafter the papers shall be placed before the Assignee Judge, who shall satisfy whether in the trial court all the legal provisions have been complied with, so as to reach final judgment as well as whether it is within the prescribed period of limitation. If there is any breach which is not found justifiable, he shall order that copy of his order shall be remitted to the Superior Judicial Council. At the same time the Assignee Judge shall examine whether the appeal is maintainable, whether the order passed as to the operation of the final judgment is to be maintained and if there is any circumstance which comes in the way of taking cognizance of the appeal.

Article 702 – Procedure in the case of error as to type of appeal - If the Assignee Judge is of the view that the competent appeal is appeal from order (“agravo”), he will take up the matter to the conference to decide this issue immediately. If it is decided that appeal should proceed as appeal from order, such judgment shall be notified to the parties who had not submitted their submissions, in order to file their reasoned submissions within the time fixed in article 743. The Assignee Judge shall remain the same. Article 703 – Procedure in case of error as to operation of judgement - If the Assignee Judge is of the view that the operation of the judgment needs change, he shall forward the proceedings to the conference. Where the point has been raised by any of the parties in the respective submissions, he shall direct that opposite party be heard, if such party has not yet replied and only thereafter, the file shall be placed before the conference. If it is decided that the appeal from final judgment was received without stay as to the operation, but there was a case to grant stay as to the operation, he shall direct that the communication be sent to the lower court to stay the execution, if the appellant prayed such relief. The direction shall indicate only the identification of the judgment, execution of which should be stayed. If it is decided that appeal arising from judgment has been received partly with stay of the operation and partly without stay ought to have been made without stay, the Assignee Judge shall issue integral copy of the order if the respondent so applies. The integral copy of the decision shall contain the collective judgment and will be sent to the trial court. Article 704 – Where the appeal is barred - If the Assignee Judge is of the view that there is bar to take cognizance of the appeal, he shall give his opinion in writing and shall hear for the period of 48 hours each of the party if they have not given their submissions. Thereafter, the file goes for 48 hours to the immediate next two judges and the preliminary question shall be decided in the first session. If the question has been raised by the respondent in his submissions, only advocate for the appellant shall be heard and thereafter, file will proceed for the necessary steps. Article 705 – Appointment of advocate by Court - When there is a case for taking cognizance

of the appeal, the Assignee Judge shall appoint an advocate for the absentees, incapables and uncertain, if they cannot be represented by Public Ministry, and thereafter shall fix time limit, between 10 and 20 days for submissions in writing by the parties who have not given the submissions in the trial court. During that period the examination of the file shall be permitted to the advocates. If there are appeals by both the parties, the first appellant shall be given time to submit the submissions and thereafter the second appellant but only to meet the points raised in the second appeal. Article 706 – Filing of documents - With the written submissions the parties may produce the documents when there are exceptional circumstances foreseen in article 550 or the production had become necessary as a result of the judgment of the trial court. § Sole Paragraph: Subsequent to the submissions it is permissible to produce supervening documents. Article 707 – Examination by Judges - Thereafter the file shall be sent for examination by two judges next to the Assignee Judge and lastly to the latter; for 28 days to each of them. Such period does not run during the holidays of Christmas, Carnival and Easter. But, if the Assignee Judge is of the view that on account of simplicity of the cause, it may be decided independent of examination by the judges, he shall take the file to the conference and the matter will be proceeded with as decided at the conference. Article 708 – Need for steps - If the Assignee Judge or any of the following judges are of the view that any procedural steps are necessary, the matter shall be decided in the conference. If the majority is of the view that such procedural steps are necessary, order shall be passed by the Bench and after such procedural steps are taken, the file shall be placed for examination by the judges for the purpose of the hearing. The judges who already had examined the file, will have further examination for 5 days after the examination by third judge in order to examine the result of the procedural step given. Article 709 – Preliminary questions by other judges – The other two judges may raise any

preliminary question mentioned in article 702 to 704 and whatever is provided in those articles shall be followed.

Article 710 – Hearing on object of the appeal - The judges after having examined the file shall

affix their signature under the date and duly signed. After the end of the examination, the file shall be posted for hearing. On the day of the hearing the Assignee Judge shall read his opinion and thereafter it will be put for vote of two adjunct judges as per the order of the examination by them. The discussion amongst them shall be directed so as to produce the best result within the minimum time, with dialogue if required. The decision shall be taken by majority; and when there is no majority the Chief Justice shall have the casting vote. § Sole Paragraph: When along with the appeal against final judgment there are appeals from orders filed by the parties previously, their cognizance will be taken up first but their cognizance will be taken only if it is found that the breach committed has bearing on the decision of the case.

Article 711 – Adjournment or replacement of Assignee Judge - If the Assignee Judge is

absent or has some impediment to participate, the hearing will be adjourned for following session; however, if there is a ground to believe that the impediment or absence may be longer, the first adjunct shall exercise the functions of the Assignee Judge. Article 712 – When can High Court alter decision of collective tribunal - The High Courts shall not alter the decision of the collective tribunal, except; 1. If from the file all the particulars of evidence which have been the basis for the decision are available; 2. If the particulars obtained from the file compel a different decision which cannot be countered by any other evidence; 3. If there is a case foreseen in clause no.3 of article 771. Article 713 – Preparation of judgement - The Assignee Judge shall draw up the final judgment in accordance with discussion and voting of the majority.

The collective decision shall begin with a report, then all the grounds shall be mentioned, ending with the decision, and to the extent applicable in accordance with the provision of Article 659; thereafter, it shall be signed by the judges who participated in the discussion and the declaration of the dissenting judge shall not be permitted. Article 714 – Publishing the result of the voting - If it is not possible to write the judgment immediately, the result of the decision shall be noted in the book of remembrance, which shall be signed by the judges and published immediately. The concerned judge shall retain the file and shall produce the judgment in the first session. The judgment shall bear the date of said session and shall be signed by the judges who participated. If any of them is not present or is not able to sign, the reason for not signing shall be stated. Article 715 – Provisions relating to judgements to apply – The provisions of articles 660 to 667, 669 and 670 shall apply to the appellate court. Even though the appellate court declares the judgment passed in the Trial Court as null and void, shall not fail to take cognizance of the object of appeal against final judgment. Article 716 – Oral arguments - If the parties have not filed their submissions in the trial court they may agree to have oral discussion up to the stage when the Assignee Judge directs the examination for the purposes of filing the submissions. In this case the Assignee Judge shall fix period between 5 to 10 days, the period for the purpose of examination of the file for each party and thereafter, the file will go for examination to the Assignee Judge and thereafter following judges, for 20 days each. After the examination is over the file will be posted on the board for hearing. The arguments shall be heard and the Chief Justice will ask first the advocate of the appellant and then the advocate of the respondent and thereafter may seek any explanation which may be necessary. After the arguments are over, the court retires to the conference hall for deciding the case. § Sole Paragraph: The advocates may submit the submission in writing till the time given to them for examination of the file. Article 717 – Nullity of collective judgement - The collective judgement is null and void when

any of the circumstances mentioned in article 668 is satisfied and also when it is recorded against the negative vote or without the majority. Such nullities also shall, like those prescribed for the trial court orders be raised according to the procedure established in article 669. The Assignee Judge after hearing the opposite party shall take the file to the conference to decide on the submissions. § Sole Paragraph: A judgment is considered to have been written against the minority when it is delivered in a manner different from what is recorded in the book of the remembrance and has been pronounced at the end of the session in which the case was discussed. In case there is disagreement between what is announced and what is recorded in the book, the later record will prevail. Article 718 – Modification of the collective judgement - If the Supreme Court of justice annuls the judgment and direct its modification, the same judges shall, if possible, intervene in the hearing of review. The judgment shall be reviewed in precise terms as directed by the Supreme Court.

Article 719 – Return of file to the lower court - If from the judgment no further appeal is

instituted, the file shall be sent to the Trial Court, without keeping in the High Court any integral copy of the judgment. The return of the file shall be by order of the Assignee Judge independent of application or opinions. Article 720 – Steps against attempts to delay - If the Assignee Judge is of the view that the party with a particular application is trying to obstruct the implementation of the decision or the return of the file to the competent court, he shall put up the subject to the conference and the conference may order that incident is processed in separate and steps to be taken accordingly. SECTION III APPEAL TO SUPREME COURT (‘REVISTA’) SUB-SECTION 1 PRESENTATION OF APPEAL AND

FORWARDING THE APPEAL PAPERS Article 721 – Decisions appealable before Supreme Court - The appeal to the Supreme Court lies:

1. From the judgment of appellate court arising from the final judgment of the Trial court, while

deciding the case on merits, the requirement of second part of the article 678 are satisfied.

2. From the collective judgment of the High Court arising from the final judgment of the trial

court while taking cognizance of the merits of the appeal. Article 722 – Grounds of appeal - The ground of appeal to Supreme Court is the infringement of substantive law on interpretation or application of the law; besides it is open to plead any of the nullities foreseen in article 668 and 717 as accessory ground upon passing of the trial court judgment or appellate court judgment, on such plea of nullities. § 1: By substantive law it must be understood: The norms of law of substantive character originated from the organs of sovereignty, national or foreign; the usages and customs when they have force of law; the international conventions and treaties. § 2: The error in the appreciation of evidence and selection of material facts shall not be object of appeal to Supreme Court, except where there is express provision of law which requires a particular type of proof for the existence of an act or fact or which lays down specific type of proof as having binding force. § 3: If the appellant is challenging the judgment of the trial court or of the appellate court solely based on nullities of article 668 and 717, he shall file an appeal from order (“Agravo”). In such case, if the final judgment of the trial court or collective judgment of the appellate court is annulled, from such judgment, it is open to make further challenge by way of appeal to Supreme Court (“Revista”) on the ground of violation of substantive law. Article 723 – Effect of appeal - The appeal under this section (“Revista”)’ stays the effect of the judgment on questions relating to the status of persons. Article 724 – Order of Assignee Judge - The Assignee Judge shall pass the order admitting or rejecting the appeal declaring whether the operation of the judgment is stayed or not, when the appeal is admitted.

If the appeal is admitted and the operation of judgment is stayed, the respondent may demand security and in such a case the provision of article 693 and following ; if the effect is without stay of operation, the respondent may within the time limit prescribed in article 693, apply that the entire text of original order. The Assignee Judge shall fix time for the issuance of copy which will include only the collective judgment of the appellate court except where the respondent proposes to include copies of other records, undertaking to pay the cost of the same. Article 725 – Forwarding of appeal - The provisions of articles 698 and 699 are applicable in the matter of forwarding the appeal to the superior court. SUB-SECTION II THE DECISION OF THE APPEAL Article 726 – Applicability of norms for appeals to High Court from final judgement - The provisions relating to the appeal from the final judgment decided by High Court with the exception of, what is provided in article 712 and second part of article 715 and also excepting what is prescribed in second part of article 715, and further excepting what is provided in the following articles. Article 727 – Annexing of documents - With the arguments, it is open to produce supervening documents, without prejudice to what is provided in paragraph 2 of article 722 and in the second paragraph of article 729. Article 728 – Examination by judges and ascertainment of majority - The file will be sent for examination to the four judges next to the Assignee Judge and lastly to the Assignee Judge himself. The majority shall be determined by the number of judges present. Article 729 – Ascertainment of majority and order if it is found that there was violation of substantive law - It is necessary that, there should be 5 votes in order to arrive at the conclusion that there was violation of substantive law. Whenever there is a majority with less than 5 votes never the less, the judges who have seen the records shall vote and sign. The decision of the appellate court as to matters of fact shall not be altered, save as an exceptional

case, foreseen in paragraph 2 of article 722. As to the material facts settled by the appellate court, the Supreme Court shall apply definitely the juridical regime, which is found adequate. The file will come back to the appellate court when the Supreme Court finds that the decision on point of facts may and must be amplified in order to constitute sufficient basis for the decision on point of law. Article 730 – New judgement in the High Court - In exceptional cases, referred to the last part of the previous article, the Supreme Court after having decided law applicable, will direct rehearing of the case in accordance with the decision point of law by the same judges who intervened before the appellate court. § Sole Paragraph: If on account of absence of factual data, the Supreme Court is not in the position to settle with precision the juridical regime applicable, the fresh decision of the second instance shall admit the appeal to the Supreme Court in the same manner and terms like the first one. Article 731 – Modifications to the collective judgement in case of nullities - When the nullities of articles 668 and 717 are raised, the Supreme Court, in the event of an annulment of judgement of trial court or of the appellate court shall order modification of the judgment if necessary, by the same judges, decide the law applicable and observing on this part what is provided in the previous article and what is provided in article 729 as to the number of votes necessary to have majority. If the ground of annulment is rejected or there be no need to interfere as to modification, as to the hearing of point of breach of substantive law, the same procedure which is stipulated in two proceeding articles shall be applicable. § Sole Paragraph: The file need not be sent back for the purpose of modification when the court is of the view that the judgment was written against the majority or that there is nullity indicated in clauses no. 3 and 5 and second part of no. 4 of article 668. In these cases, the Supreme Court shall declare, in what manner, the decision annulled is reviewed.

Article 732 – Nullities in collective judgement - The article 717 is applicable to the judgment of Supreme Court.

SECTION IV APPEAL FROM ORDER (“AGRAVO”) SUB-SECTION I APPEAL FROM ORDER FILED IN THE FIRST INSTANCE DIVISION I FILING OF APPEAL AND EFFECTS OF STAY OF THE OPERATION OF THE IMPUGNED JUDGMENT Article 733 – Appealable decisions - An appeal from order lies from the decisions which are otherwise amenable to recourse but from which appeal from final judgment does not lie.

Note: This article refers to orders which are not appealable under Art.691 which deals with ‘Apelação’ or appeal from final

judgement. This provision covers what are generally known as appeals from order in Indian Civil Procedure. The word appeal and appealable in Portuguese Law primarily refer to appeals from final judgement under Art.691 which is called ‘apelação’. The word for

appeals in the wider general sense is ‘recurso’ or recourse. It must also be noted that even from certain orders of procedural

administration, no further recourse (appeal) lies under Art.679.

Article 734 – Appeals forwarded immediately and those forwarded later - The system of

forwarding appeals from order to the appellate court shall be as follows: a) The following appeals are forwarded immediately: i) From the order which rejects the plaint “in limine”. ii) From a curative order which puts an end to the proceedings. iii) From a decision passed on the objections against the questionnaire. b) When the curative order puts an end to the proceeding, the appeals filed from earlier orders shall be of no effect if no appeal is filed against such curative order; otherwise all the earlier appeals are to be forwarded along with appeal filed against the curative order; c) When the curative order does not put an end to the proceedings, the appeal filed against the said curative order, as well as appeals filed against previous orders shall be forwarded only when

the appeal referred to in number 3 of clause (a) is forwarded. If there are no objections against questionnaire or none of the parties appeals from the order passed in respect of the same, the appeals filed against previous orders shall be sent together as soon as the questionnaire has been finalised;

1. (d) The appeal filed against orders passed after the decision on the objections against the questionnaire shall be forwarded only alongwith the appeal from final judgment. Article 735 – Other appeals forwarded immediately - Besides the orders mentioned in clause
2. (a) of the previous article, the following appeals from order shall be forwarded immediately; 1. From the order by which the judge recuses himself or rejects the plea of disqualification against him raised by some of the parties. 2. From the decision passed on conflict of jurisdiction or competence. 3. From the order which annuls entire proceedings or which holds the court incompetent. § Sole Paragraph: Equally the judge should forward immediately the appeal from order when it is manifest that if it is retained, it will be absolutely futile. •See also Articles 120 and 123 of this Code.

Article 736 – Appeals forwarded alongwith respective proceedings – The following are

forwarded to the superior court along with the main file: 1. Appeals from order referred to in clauses (a), (b) and (d) of article 734 and clauses (2) and (3) of the preceding article; 2. Appeals from order referred to in clause (c) of article 734, except where there is no appeal filed against order passed on the objections nor against the curative order. § Sole Paragraph: If there is an appeal from the order deciding objections against the questionnaire, after the same is decided by the High Court the proceedings shall be remitted back to the trial court, after keeping the records necessary for forwarding to the Supreme Court the appeals filed from previous orders. Article 737 – Appeals forwarded separately – The following appeals are sent separately from the main file: 1. Appeals from orders referred in clause (1) of article 735; 2. Appeals from order referred to in clause (c) of article 734, when the exception foreseen in clause no. (1) of the preceding article occurs;

3. Appeal from order referred to in clause (a) of article 739. § Sole Paragraph: Of the appeals from orders mentioned in clause no.2 a single file shall be prepared. Article 738 – Appeals in preventive injunction orders - When there are appeals from orders passed in preventive or conservatory proceedings, the following shall be observed: a) If the order does not grant the interim relief or rejects ‘in limine’ the respective application, the appeal shall be forwarded immediately in the same file; b) If the interim relief is granted, the appeals from orders arising from different previous orders passed shall be forwarded at the end along with appeal filed against the decision putting an end to the proceeding or the same proceedings have come to the end. Article 739 – Appeals in incidental proceedings - In relation to the incidental proceedings as such designated by law, the system shall be as under: a) If the order does not admit the incident, the appeal from order which is preferred against the same, shall be forwarded immediately; b) If the incident is admitted, the appeals filed from different orders will be sent at the end in accordance with clause (b) of previous article if the incident has been processed as attached proceedings; if the incident is processed along with main cause, the appeals from orders filed against the orders in the incident shall be forwarded along with appeals from orders in the principal cause. § Sole Paragraph: When the incident is processed as an attached proceeding, there being appeals from orders which are to be sent at the end, the file, shall be detached from the principal file and shall be forwarded to the superior court. The appeal from order referred to in clause (a) shall be forwarded in the same way in the incidental proceedings. The party may apply that to the incidental proceedings the certified copies extracted from the main matter be attached. Article 740 – Appeals operating as stay - An appeal from order which is forwarded immediately in the same file, shall operate as stay; however, the judge may decline to attribute the effect of stay to the appeal filed against order deciding objections against questionnaire. As to others they will have the effect of stay. a) If the law expressly declares so;

b) When the appeals are from order which impose fines; c) When it is found that the immediate execution of the order may cause to the appellant, loss which is irreparable or difficult to recover. § 1: Besides the special cases in which the law attributes the effect of stay to an appeal from order, the following appeals from orders shall also have the effect of stay: 1. From the decision which orders cancellation of any registration; 2. From the order which directs payment of money or imprisonment provided the money is secured by depositing or furnishing security in the Court. § 2: The stay of operation on the ground of irreparable loss or difficult recovery shall not be declared unless the appellant has prayed for in the application for appeal and without the respondent being heard.

Article 741 – Declaration as to forwarding and stay - In the order admitting the appeal it

should be declared whether the file has to be forwarded immediately or not and in the first case, whether it is to be sent along with the file or in separate. It shall also declare the effect of the appeal, when it operates as stay of operation of the impugned order. DIVISION II FORWARDING OF THE APPEAL TO THE APPELLATE COURT Article 742 – Notice of the order and annexures to appeal – Admission order shall be notified to parties in 24 hours. If the appeal is to be forwarded immediately but in separate from the main file, the parties shall indicate by way of application within 48 hours, subsequent to the service of notice, the records from the file of which the certified copy is required in support of the appeal. In support of the appeal there shall always be transcribed, at the cost of the appellant, the copy of the impugned decision and application for preferring appeal from order in which following particulars in summary about the date of presentation of the application preferring appeal, date of the service of the notice or publication of order or judgment and the value of the proceedings, date of the presentation of the appeal, date of the notice or a publication of the order or final

judgment and value of the cause. If any of such particulars are absent, the superior court shall solicit from the lower court the particulars by simple office letter. Article 743 – Filing of submissions - Within 8 days from the service of notice of admission of appeal, the appellant may present in the office his submissions supported by the documents which he is permitted to file. The respondent shall have right to file his submissions supported by documents which he is permitted to produce within 3 days from the time fixed for the appellant to present the submissions. § Sole Paragraph: During the time limits fixed in this article, the office shall make the file accessible to the parties without prejudice to the normal prosecution of the case when the appeal is without stay of operation and shall issue the certified copies which have been asked. Within the time period referred to in the last paragraph of the body of this article, the file shall be made available to the respondent. Article 744 – Support to the Order or reversal - When the period for submission of arguments on both sides has expired, the office shall prepare the file with respective certified copies and put up before the judge either to sustain the order or to reverse it. In the event the judge maintains the order, he may direct to issue the certified copies of portions he thinks fit. If the judge reverses the order, the respondent may within 48 hours from the notification of the order of the reversal make a prayer to forward the file to the court to decide the question over which the conflicting orders are passed. From this time the respondent assumes the position of the appellant. § Sole Paragraph: In the event of the reversal, the original order appealed from was not suspending the execution of the order; the certified copy of the order of the reversal shall be retained for its implementation. Article 745 – Accounts - The file thereafter will be sent for the accounts and provisions of article 698 shall be followed. Article 746 – Procedure when appeal is forwarded immediately in the same file –When the appeal from order is forwarded immediately along with the file, whatever is provided earlier shall be applicable with the exception of issuance of certified copies and processing of submissions

and documents separately. Such records shall be incorporated in the file of the proceedings. Article 747 – Procedure when appeal is not forwarded but submissions are filed – If the appeal from order is not forwarded immediately, the appellant may file his submissions within 8 days from the notice of the order admitting the appeal or when the appeal is to be forwarded to the appellate court. In the first case, the steps prescribed in articles 742 to 744 are to be followed with the exception of the references to issuing of certified copies and filing of records and documents. Once the order upholding the impugned order is passed, the subsequent steps shall remain suspended till the time the appeal from order is forwarded to the appellate court; if the impugned order is reversed, all the subsequent steps shall stand suspended or the appeal will stand concluded depending upon the stand taken by the respondent in availing the remedies available under Article 744. When the stage to forward the appeal from order comes, if appeal is not to be forwarded along with the main file, the parties shall be notified to indicate within 48 hours, the certified copies which are required and the office shall comply with article 742. § Sole Paragraph: In the account there shall be separation as to the cost payable from each appeal from order and the cost to be payable by each appellant; however, the payment of cost for forwarding the appeal shall be made solely by last appellant. If for any reason, the main appeal alongwith which the appeal from order should have been forwarded, does not succeed, the next immediate appellant may request to forward his appeal after paying costs within 5 days from the date of knowledge of the fact which prevents the other appeal from being pursued. With the said appeal from order other previous appeals shall be forwarded which have not become unfructuous. What is provided in the second clause of this paragraph is not applicable to the case where appeal from order is to be forwarded along with the appeal against the final judgment or with the appeal from curative order which has put an end to the case. Article 748 – Procedure when appeal is not forwarded immediately when submissions are not made soon - When the appeal from order is not forwarded immediately and the appellant

does not present his submissions within the time fixed in the article 743, upon suspension of the steps of the appeal subsequent to service of the order which admits the appeal, the submissions may be presented along with the appeal which causes the forwarding of the file to the higher court and becoming only one complete proceeding. The position of each of the parties in these proceedings shall be defined by the position which they hold in the appeal giving rise to take up previous appeals along with, without prejudice however of what is provided in the sole paragraph of previous article. Thereupon the proper steps of the appeal shall be followed along with other appeals which are forwarded; but if these steps were of articles 743 and following, the judge may reverse the last order under appeal. § Sole Paragraph: When the case foreseen in the second part of clause (c) of article 734 arises, the last appellant and last respondent shall be notified that they may prosecute their appeals. Such notice is equivalent to the order of admission of the appeal. DIVISION III HEARING OF THE APPEAL Article 749 – Procedure as in appeal from final judgement to be followed - The provisions of appeal against final judgment shall be applicable to the hearing of appeal from order, to the extent applicable, except what is provided in the following articles. •See also Article 700 and 720 of this Code. Article 750 – Advance payment - In the event an appeal from order has been declared abandoned for non-payment of prepayment, there being previous appeals from order which have been forwarded alongwith, the immediate preceding appellant may within 5 days from service of notice of the order of abandonment, may effect the prepayment of costs for the prosecution of his appeal, with which shall be decided the previous appeals from order. § Sole Paragraph: Provisions of this article do not have application when the appeal from curative order putting an end to the main file has been declared abandoned.

Article 751 – Preliminary questions - If there is a change in the effect of the appeal, the

interested party may pray that the file may be sent back to the trial court for implementing in the trial court the change made by the superior court. If the Assignee Judge is of the view that no cognizance can be taken of the appeal, he may hear only the advocate for the appellant. Article 752 – File examination and hearing - When the Public Ministry has to intervene in the file, all the papers will be sent to it for seven days to express its opinion within the said period of seven days and, thereafter, the file will go for examination by the judges composing the bench, and then to the Assignee Judge for the preparation of final judgment, however the period shall be seven days for each of the first two and fourteen days for the second. There being several appeals from order, the court shall take cognizance as per the order of filing of the appeal before the trial court; but if they have been forwarded along with appeals from order, which has put an end to the proceedings, the appeal is to be allowed when the breach committed is likely to modify such decision. To the judgment which decides the appeal, the provisions of Articles 717 to 719 apply. Article 753 – Cognizance on merits in place of trial court – If it is an appeal from order against the final judgment and the trial court has not taken cognizance of the same on merits for any reason, if the court is of the view that such reason is not well founded and there is no reason for not taking cognizance of the case on merits, the court shall take cognizance of the same, reversing the judgment of the trial court. However, if the appeal to be filed from the decision of the trial court was appeal from final judgment, it may be directed by a bench judgment that procedure of appeal from final judgment be followed. Such determination shall have the following effects: 1. The file shall be transferred from the category of appeal from order to the category of appeal against final judgment; 2. The file will come back with examination by other judges composing the bench and to the assignee judge for the period necessary to complete the period assigned to appeal from final judgment; 3. The appeal to be filed from the final judgment of the appellate court shall be appeal to Supreme Court (‘Revista’).

SUB-SECTION II APPEAL FROM ORDER FILED BEFORE THE APPELLATE COURT DIVISION I PRESENTATION OF THE APPEAL, OBJECT AND EFFECT OF THE APPEAL AS TO THE STAY OF OPERATION

Article 754 – Decisions appealable to Appellate Court - Appeal from order lies before the

Supreme Court: 1. From the judgment of the trial court referred to in the exception provided in last part of the article 796; 2. From the judgment of appellate court which admits appeals except in cases where appeal is “Revista” (Appeal to Supreme Court) or appeal from final judgment.

Article 755 – Grounds for an Appeal from Order - An appeal from order may be on the

following grounds: 1. The nullities mentioned in articles 668 and 717; 2. Lack of jurisdiction of the court or breach of res-judicata; 3. Infringement or erroneous application of substantive law or the procedural law. § 1: The appeal from order shall be governed by paragraph 2 of the article 722. § 2: The nullity in the final judgment or in the judgment of the appellate court and the nullity in the proceedings may be raised as a ground of appeal after they being raised and heard in the appeal from order filed from the judgment passed on the point. Article 756 – Appeals from order which are forwarded immediately - Following proceedings coming from trial court shall be forwarded immediately:- 1. The appeal from order referred to in clause no.1 of article 754; 2. The appeal from order from the judgement of the High Court which has taken cognizance of

appeal from order or declined to take cognizance of appeal from order or from appeal from final judgment. Article 757 – Appeals from order which are forwarded only at the end - The appeals from order filed from the judgment of the appellate court passed in the course of proceedings in the High Court shall be forwarded, when the appeal from the final judgment of the appellate court which puts an end to the proceedings, is forwarded. The appeals from order filed from the judgment of the appellate court on the issue of lack of jurisdiction, which are forwarded immediately in separate, stand excluded from above. § Sole Paragraph: In the incidental proceedings, processed by appendage, the appeal from order arising from the judgment of the appellate court which has not admitted the plea shall be forwarded immediately, and same will happen in relation to appeal from order from judgment of appellate court which has put an end to the proceedings, and along with it the incidental proceedings which shall be separated there from an appeal from order of previous judgment from appellate court. Article 758 – Stay resulting from Appeals from Order - The appeals from order which have come to the appellate court, have the effect of staying the operation in the cases of principal matter and proceedings referred to in clauses (a) to (c) of article 740 and the numbers of paragraph 1 of same article. Article 759 – Fixing of stage of forwarding and its effect - Whatever is provided in article 741 is applicable to the appellate court. DIVISION II FORWARDING THE APPEAL Article 760 – Forwarding of the appeal when done immediately - As soon as notice is given to the parties within the period of 24 hours of the order which has admitted the appeal, if this has immediately forwarded and in separate what is provided in articles 742, 743 and 745 shall be applicable. When the file has been forwarded along with the main file, the same steps shall be taken with the

exception of those referring to issuance of certified copies and preparing separate record of the submissions and documents. Article 761 – Steps when appeal from order is not forwarded immediately - If the appeal from order is not forwarded immediately, the steps of the appeal subsequent to the notice admitting the appeal shall stand suspended and the submissions pertaining to appeal from order shall be presented along with the submission of the appeal which causes the same to be forwarded, thereby making two appeals in one file. The Appeal from Order will be without effect if for any reason the appeal alongwith which it was to be forwarded is not prosecuted further. DIVISION III HEARING OF APPEAL Article 762 - Procedure for hearing - The procedure for the hearing of the appeal from order shall follow the steps prescribed in articles 749 to 752. If the High Court for any reason has refrained from taking cognizance of the object of appeal, the Supreme Court shall revoke the decision if it is of the view that the reason for it is not tenable and shall direct the High Court to decide the matter again through the same judges. § Sole Paragraph: The provisions of sole paragraph of article 731 are applicable to the hearing of appeal from order. •See also article 753 of this Code. SECTION V APPEAL TO THE FULL COURT

Article 763 – Grounds for appeal to Full Court - If in the same field of legislation, the

Supreme Court has passed two diametrically opposite judgments, over the same question of law, it is permissible to appeal to the full bench of the Supreme Court by preferring appeal from the later judgment. § 1: The contradictory judgments should have been delivered in two different cases or two different incidents in the same case. In the later case, however, if the first judgment has constituted res-judicata in relation to the parties, the appeal is not admissible, but provisions of

article 675 are to be followed. § 2: As ground for appeal, it is permissible to place reliance on the previous judgment, which has become res-judicata. However, it is presumed that there is res-judicata, except where the respondent pleads that appeal is pending and no res-judicata is operating. •See also article 677 sole paragraph of this Code. Article 764 – Application for Full Court hearing - In the application for presentation of appeal, indication will be given with full particulars of the two cases demonstrating that the earlier judgment is in conflict with the second and giving the place of publication or registration or the proceedings in which the same was passed, failing which appeal will not be admissible. Article 765 – Submissions on preliminary question - In the event, the appeal is admitted, the appellant within 5 days from the date of service of notice shall present the submissions in writing, so as to demonstrate that in between the judgment appealed from and the previous judgment, referred to in the application, there is a conflict as required under article 763. The opposite party shall reply within 3 days, following the end of the period fixed for submission of the appellant. § Sole Paragraph: The appeal shall be declared as abandoned in the event, the appellant does not present his submissions. Article 766 – Examination and judgement of preliminary question - Thereafter the proceedings shall go for examination for 48 hours to each of the judges of the section next to the Assignee Judge. The latter shall have the final examination at the end for 5 days and in the first session immediately thereafter; it will be decided in conference, if there is a conflict as referred to in article 763. § Sole Paragraph: If the Respondent pleads that the previous judgment has not become res- judicata, the section shall verify what is the situation on the date when decision on the point of opposition is to be rendered and in the event it is found that really the judgment has not become res-judicata, it shall refrain from deciding the point and appeal will be of no effect. Till the session is over, the appellant may plead whatever he has to say on the point of judgment

becoming res-judicata. Article 767 – Submissions and examination on the solution to conflict of jurisprudence - If it is decided, there is no conflict, the appeal is considered as closed. In the contrary case, each of the party shall have ten days to examine the file and present his submission on the object of the appeal, thereafter, there will be examination for equal period by the Public Ministry which shall always express its opinion over the solution to the problem of conflict of jurisprudence. Thereafter, the proceedings will go to all the judges of the court from the one next to the Assignee Judge and ending with him. The period of examination shall be same as in the case of appeal from order. § Sole Paragraph: The judgment which recognizes the existence of the conflict does not debar the full court from deciding the contrary. Article 768 – Judgement on conflict – Final binding effect - In the judgment of the appeal shall intervene, at least four fifths of the judges which comprise the sections of the court. There being many grounds of the appeal, the court shall pronounce on the points in which there is a conflict. The Chief Justice shall have casting vote. The legal doctrine affirmed by the judgment which resolves the conflict of jurisprudence shall be binding on all the courts until altered by another judgment pronounced in accordance with the following article. § 1: Once it is found that there is a conflict of jurisprudence, the tribunal shall resolve such conflict and pass the “assento” (decision of the full court), even though the resolution does not have practical utility to the concrete case in dispute because the decision of the judgment appealed from shall have subsisting effect, whichever may be the doctrine laid down by the “assento”. § 2: The judgment which resolves the conflict shall be published immediately in the first series of Government Gazette and in the Official Reporter. The Chief Justice shall send to the Ministry of Justice one copy of such judgment, along with the reply of the Public Ministry, of the previous judgment relied upon as a ground for the appeal and of any other considerations which it deems fit.

Article 769 – Modification of Full Court decision settling law - When in the subsequent

judgments of the Supreme Court the majority of the judges who intervene in the decision are in favour of a modification of the jurisprudence fixed by full court (“assento”), the file shall be presented to other judges until it secures seven votes for maintaining the jurisprudence established or for the need to modify it. In such case the Chief Justice shall direct that the file be sent for examination by remaining judges and the question shall thereafter be decided in full court. If the final view is in favour of a change of the jurisprudence, a new judgment (“assento”) shall be drawn, to which the provisions of the previous article and its paragraphs shall apply. Article 770 – Appeal by Public Ministry - The appeal referred to in this section may be filed by Public Ministry, even when is not party to the litigation. But, in such case it shall not have any influence on the decision and is meant solely to call for a law settling judgement (“assento”) over the conflict of jurisprudence, and in such case it is permissible to file the petition even after the later decision has become res-judicata for the want of appeal. SECTION VI REVISION Article 771 – Grounds for Revision - Review of any decision which has become res-judicata may be applied for only on any one of the following grounds:- 1. When it is shown by a judgment passed in a criminal case and which has become res-judicata that the judgment sought to be reviewed was passed by bribe, graft, corruption or embezzlement; 2. When the forgery of a document or of a judicial act on which the judgement was based is alleged and this issue was not considered in the proceedings in which the decision was or when by a final judgment or order a court holds that the depositions or reports of experts, which have determined the decision are false; 3. When a new document is produced which was neither in the possession nor known to the party and such document by itself is sufficient to destroy the evidence on which the decision is based; 4. When the admission, withdrawal or compromise on which the judgment is based is revoked or there is a valid ground for revoking the same;

5. When the admission, withdrawal or transaction referred to in article 298 and following is null and void on account of insufficiency of powers of attorney or insufficiency of the power of the attorney except where the judgment of homologation has been notified personally to the donor of the power of attorney. 6. When the proceedings went ex-parte and the party was not summoned or service of summons was null. 7. When judgment is contrary to another judgment which constituted res-judicata and the party proves that he had no knowledge of the judgment during the pendency of the proceedings. Article 772 – Time for filing - The revision may be filed before the court, which passed the decision sought to be revised. The time limit for filing the revision is of thirty days counted from: a) In the case of No.1 and second part of No.2 of the previous article, from the date when the judgment on which revision is based becomes res-judicata. b) In other cases, from the date the party obtained the document or got the knowledge of the fact which is the basis for the revision. § Sole Paragraph: The provision of the second part of article 779 and respective sole paragraph is applicable, with necessary adaptations. Article 773 – Mode of filing - In the petition for revision, the grounds for the revision shall be set out and along with the same, in the case of clause no.(1), second part of clause no.(2), of clause no.(3), first part of clause no.(4) and of clause no.(7) of article 771, the certified copy of the judgment or the document on which the case is based; in the case of first part of clause no.(2) and of second part of clause no.(4), summary evidence of veracity of ground pleaded is required to be placed on record; in case of clauses (5) and (6), the petition shall demonstrate that the ground pleaded is satisfied. Article 774 – Special cases of immediate dismissal - Without prejudice to what is provided in article 688, the petition shall be rejected when it has not been drawn or supported in accordance with the provisions of the preceding article and also when it is found that there is no reason for revision. If the petition is admitted the opposite party shall be notified to reply within ten days.

Article 775 – Adjudication in specific cases - With the exception of cases of the first part of clause no.2 and second part of clause no (4) of article 771, immediately after the reply is filed by the respondent or expiry of the time limit fixed, the court shall take cognizance of the ground of the revision. If the ground is held tenable, it shall order: a) In the case of clause no.7 of article 771, that the impugned judgment is of no effect; b) In the case of clause no.6, that all the steps taken after the service of summons stands cancelled and that fresh service of summons be made on the defendant; c) In the cases of no.1 and 3, that new final judgment be passed upon absolutely indispensable necessary steps being taken and each of the party being given time of 8 days to file their submissions in writing; d) In the case of the second part of clause no.2 of the first part of clause no.4 and of clause no.5 that necessary steps be given afresh, saving only whatever may be useful. Article 776 – Steps for adjudication in other cases - In the case of first part of no.2 and of second part of no.4 of article 771, after the reply is filed or expiry of the time limit fixed, the court after examination of the evidence led and any other steps which are found necessary, shall decide whether the petition should be proceeded with. When the inquiry has to proceed, required steps will be taken so as to take cognizance of the ground raised and to decide the case afresh.

Article 777 – Furnishing of security - If there is any execution pending or initiated from the

judgment, the applicant for the execution or any creditor shall not be paid in cash or in mobiliary assets without furnishing security. SECTION VII OBJECTION BY THIRD PARTY

Article 778 – Ground for third party objection - When the parties had made use of the

proceedings in order to do a simulated act (sham transaction) and the court has not used the power conferred by article 665, because the existence of the fraud did not come to the notice of the court, the judgment may be challenged by way of objection of third party, if the judgment is passed to the prejudice of the third party. The objection may not be filed unless the judgment becomes res-judicata and the file is not remitted to the trial court. Article 779 – Limitation - The time limit for filing the application is of thirty days counted from the date the file was remitted back to the lower court or from the date the applicant had knowledge of the judgment. When the application is presented within six months from the date of the remittance of the file to the lower court, it shall be presumed that the applicant got the knowledge, thirty days before filing the application; if six months have passed, the applicant shall adduce evidence to satisfy that the application is in time. Article 780 – How the application is drawn up - The applicant shall satisfy that it is a third party and that judgment passed is prejudicial to him and shall plead the facts which permit to draw inference: 1. That case involves an act of simulation (sham transaction); 2. That the simulation has a purpose of obtaining a judgment which is prejudicial to the applicant. § Sole Paragraph: There is bar for filling application when more than five years have elapsed from the date the judgment became res judicata. Article 781 – Dismissal ‘in limine’ - Without prejudice to what is provided in article 688, the application shall not be allowed when the same application has not been filed in accordance with previous article. Once the application is allowed, the parties shall be served a notice to answer within 10 days. Article 782 – Steps in case the appeal proceeds - After the reply, based on the pleadings of the parties, it will be decided whether the application has to be proceeded with and summary proof of the facts pleaded may be asked and procedural steps deemed necessary be taken. If the application has to proceed, it will proceed as if pleadings are over and steps of the suit shall be taken and then finally judgment will be passed.

•See also Sole paragraph of Article 777. SUB-TITLE III SUMMARY PROCEEDINGS Article 783 – Time for reply and penalty for default - The defendant shall be summoned to contest within 10 days, failing which prayer as prayed, shall be granted.

Article 784 – Consequences of absence of contest - If the defendant does not contest after

having been regularly summoned in person, the file shall be concluded within 24 hours and judgment passed granting the relief in the precise terms of the prayer, except for what is provided in clause no. 3 of article 489. However, in the event of it is found the case fits in clause I and 2 first part of clause no. 3 of article 481 or it is found that the plaintiffs trying to achieve an object prohibited by law, the plaint shall be dismissed. § Sole Paragraph: In the case foreseen in clause no.1 and 2 of article 489, the penalty shall be applicable to the respondent or respondents who have not contested and are not legally incapable or are not legal persons and the action shall continue as against others unless it is a case of non- joinder of necessary parties. Article 785 – Rejoinder - If the defences are raised or any incidental proceedings are filed, the plaintiff may file rejoinder within five days, after the lapse of the 10 days given for filing defence. But, this rejoinder is confined only to the subject matter of the incidental proceedings or the defences raised and he may also reply to the counter claim.

Article 786 – Filing of documents and proof - With the plaint, written statement and reply

which need not be paragraph wise, all the documents shall be annexed and the defendant is entitled to seek personal statement of the plaintiff the arbitrament and production of commercial books of accounts.

Article 787 – Preliminary hearing and curative order - After the last reply, or decision of

question of jurisdiction of the court, whatever is said in article 512 and 515 shall be followed with the reference that time limit is reduced to 5 days from 8 days, and 8 days from 10 days and advocates not permitted to seek oral arguments more than once. Article 788 – Letters of request – No letter of request will be sent for arbitrament or for the evidence of the defendant to take place outside the continent or island where the file is pending. For the purpose of service of summons or notice, limitation is 5 days, for other purposes, shall not be less than 10 days and more than 20 days. Article 789 – Limit as to number of witnesses – Not more than three witnesses for each fact total number for each party shall not be more than 10 in the main matter and 5 for each incident and preparatory acts. Article 790 – Fixing the hearing of arguments and judgement - After the necessary procedural steps are taken before the start of the trial or after expiry of the period fixed in the letter of request, in the following 24 hours, the date shall be fixed on any date during the next 10 days for hearing and deciding of the matter. § Sole Paragraph: In case of the adjournment, the hearing will take place within the subsequent 10 days and only in agreement with parties there can be second adjournment, whatever may be the ground. •See also Article 652 of this Code.

Article 791 – Hearing of arguments and judgement – The conduct of the proceedings and

hearing of the matter shall be done without the intervention of collective court and delivery of the judgment is entirely the function of the judge who decides the matter. If the parties have not dispensed with the appeal, the evidence shall be in writing, it being understood that the parties have renounced right to appeal when evidence has not been recorded in writing. In the arguments, each of the advocate have right to argue, once and for a period not exceeding one hour. After the hearing is over, the judge shall decide immediately the factual aspects as reflected in the questionnaire, recording in writing, which facts are proved and which are not and what provided

in article 655 shall apply. Article 792 – Effect of appeal from final judgement and forwarding of Appeals from Orders

• • From the curative order or final judgment which has taken cognizance of merit of case, appeal from judgment lies without stay as to the operation. From other decisions, appeal from order lies which is to be forwarded only along with appeal from final judgment. § Sole Paragraph: In the event the curative order puts an end to the case or if any decision is passed which has same effect or which causes a case to be transferred to another court, the appeal from order which is filed from the order or decision shall be forwarded immediately along with the file and with it all the appeals from orders filed previously. Article 793 – Appeal from final judgement to Court of Judicial Division - When the appeal from judgment, is to be decided by the court of Judicial Division to the extent applicable, the procedure followed by the High Court shall be followed except for what is provided herein below. Article 794 – Adjudication of prior questions - If the judge is of the view that competent appeal was appeal from order, he shall take cognizance of the same immediately in the event both the parties have submitted their submissions; if not, he shall direct service on the parties who have not filed submissions to produce their submissions within eight days and will thereafter decide. If he is of the view that he cannot take cognizance of the appeal, he shall give his reasons and direct that advocate for the appellant file his say within 48 hours and thereafter shall decide the preliminary question. Article 795 – Appeal directly to Supreme Court - From such judgment, no appeal lies unless case is covered by second part of article 678 in which case there shall lie Appeal directly to the Supreme Court (“Revista”). Article 796 – Hearing of Appeal from Order by Court of Judicial Division - When the judge of Judicial Division is to decide appeal from order, to the extent applicable, what is provided in respect of appeal from order to the High Court shall apply. The judgment on the object of the appeal shall be delivered within 15 days, save in the case foreseen in article 753 in which the period is 20 days. From the judgment, there shall be no appeal, unless the case fits in second part of article 678 and respective sole paragraph, in which case there shall be appeal from order to be presented directly to the Supreme Court. SUB-TITLE IV CONCISE PROCEEDINGS Article 797 – Initial petition - The plaintiff shall set out his claim and basis thereof and shall indicate the name and domicile of the defendant and of the witnesses. Necessary orders will be passed immediately within 24 hours. Article 798 – Summons, time for defence and list of witnesses - The defendant shall be served with the summons to file written statement within a period of 8 days failing which relief will be granted immediately. With the written statement the defendant shall give the list of witnesses.

Article 799 – Effect of non-contest - In the event, the defendant having being summoned

personally does not contest, the relief shall be granted as per prayer and whatever is provided in article 784 and its sole paragraph shall be applicable, except in respect of incapable defendant or legal persons who are subject to general rules. If he contests, date would be fixed for the trial which shall take place within next following 10 days. Article 800 – Hearing of arguments and judgement - Effect of non-appearance parties - If the defendant, having filed written statement, does not put appearance on the day of the hearing, nor is represented by an advocate, relief will be granted against him as per prayer, unless justification is given by sufficient evidence that there is no obligation. If the plaintiff remains absent and he does not give justification for the absence, the defendant may pray that, suit be dismissed for default and plaintiff be directed to pay costs. If both the parties or their representative are present, the pleading shall be read as well as

document but such reading may be substituted by concise minutes in accordance with clauses (a) of article 653, where the parties are represented by advocates, thereafter, the judge shall attempt to settle the matter; if the settlement is not possible, evidence of witnesses shall be led, their number shall not exceed 6 for each party; the advocates shall make brief oral arguments. Lastly the judgment will be passed orally duly supported with grounds. All this shall be recorded in the record of the court, but not the evidence of the witnesses. § 1: If the defendant has neither been served personally, nor has contested, the case will be decided with or without his intervention in accordance with evidence led and law applicable. § 2: The witnesses shall be produced by the parties without necessity of serving them; but it is optional for the parties to pray that notice be sent to them. § 3: If the judge is of the view that it is absolutely indispensable for sound decision of the suit, that there is necessity to take some procedural steps, he shall suspend the proceedings for the time which found convenient and shall immediately fix the date for conducting such procedural steps which cannot be carried by letter of request. Arbitrament, if any, shall be done by a sole expert. TITLE III EXECUTION PROCEEDINGS SUBTITLE I GENERAL PROVISIONS Article 801 - Applicability of provisions relating to suit for declaration - The provisions regulating procedure for a suit for declaration are applicable to execution proceedings when the need to apply the same arises and they do not contradict the provisions of this title. •Articles 801 - 943 – Execution - Corresponding provisions in C.P.C. 1908: - oExecution of Decrees and Orders – O.XXI C.P.C. Article 802 – Requisites of executable obligation - If it is not permissible to initiate execution proceedings unless the obligation becomes certain, liquid and enforceable if the document on its face does not show these characteristics.

Article 803 – Choice of act to perform - If obligation is in the alternative and it is the privilege of the debtor to exercise his choice, the latter shall be notified to declare, which alternative he would opt. In absence of such declaration, the right of selection reverts to the creditor. Article 804 – Obligation conditional or dependent on performance - If the obligation of the debtor is dependent upon a condition or upon the performance on the part of the creditor, it is for the latter to prove that such condition is fulfilled or that he has tendered or performed such obligation. § Sole Paragraph: If documentary proof is not possible, it is optional to the creditor while applying for execution to tender oral evidence and for that purpose, the witnesses will be examined with liberty to hear the debtor if found necessary. Article 805 – Liquidation by Decree Holder - In the event, the amount which the Judgement Debtor is bound to pay to the execution applicant (Decree Holder) is not quantified prior to filing the petition, the execution petitioner (Decree Holder) shall fix the quantum in the initial application for execution if the fixation depends solely on arithmetic operations, as in the case of calculation of interest of credit instruments, on capital, value of commodities or which have a price or official quotation. § Sole Paragraph: If date from which the interest is counted is not mentioned, the executing court shall fix the same in accordance with the document under execution, after hearing the parties.

Article 806 – Procedure for liquidation when Decree Holder cannot quantify - Whenever

there is an illiquid obligation and the case is not covered by the preceding article, the Decree Holder (execution applicant) shall, at a preliminary stage, initiate the proceeding for liquidation, with or without para wise pleadings, depending upon whether the valuation exceeds or not the value of the summary proceeding, the appellant shall list out all the items or objects, which are considered in the generic obligation, giving the justification, why the specification is required and conclude praying for a specific amount or a certain thing. The Judgement Debtor (execution opponent) shall be summoned to reply within a period of 10 or 5 days depending upon whether the prayer exceeds or not the limit me. Article 807 – Further steps in case of opposition or otherwise - If there is no opposition, it will

be held that the obligation according to the amount or thing demanded is liquidated nature and the execution shall be ordered to be proceed with. In the event there is an opposition, evidence shall be led and thereafter decision shall be passed. § 1: Along with the petition or opposition, evidence shall be listed and the number of witnesses shall not be more than 10 for each party. § 2: When the opponent has ground to raise objection by way of defences or by simple application, he shall add such prayer while opposing the liquidation. If the objections are not rejected immediately, the ordinary procedure of such objections

(“embargos”) will follow and the Decree Holder is entitled to file written statement to the

objection and the objection raised against the execution. In the case of immediate rejection of objections, the case will be decided depending upon the decision as foreseen in this article. If the Judgement Debtor objects to execution by way of simple application, the procedural steps for liquidation shall be followed in accordance with this article. If the Judgement Debtor having been summoned for the purpose of liquidation proposes to appeal from the order directing service of summons in accordance with article 812, he may immediately file appeal also. Article 808 – Steps when lack of opposition is not penalized - What is provided in the first part of previous article shall not apply when the Judgement Debtor has not been served personally or when there is a case under clauses 1 and 2 of article 489. If the default is in respect of case included in clause no.1 of said article the defence provided by one will benefit to all the opponents. In other cases, the obligation shall be declared as liquidated or directions will be issued to follow the procedure of arbitrament, depending upon whether the request is reasonable or exorbitant. If it is decided to hold arbitrament, whatever is provided in the next article shall be followed. Article 809 – Liquidation by arbitrament - The liquidation shall be by way of arbitrament: 1. When the law directs expressly, as in the case of article 1263 of the Civil Code; 2. When the parties are in agreement; 3. When the evidence led by the parties was insufficient and it is found that it is not possible to effect the liquidation in any other manner; 4. When, in accordance with the previous article, there is direction to take up arbitrament.

The appointment of arbiters shall be done in the same manner as for appointment of experts. The third arbiter shall intervene when there is no agreement between other two, but will not be bound to concur with either of them. The judge shall approve the report of arbiters and in case of divergence, the report of the third arbiter. Article 810 – Process when one part is ascertained and the other is unascertained - In the event, one part of obligation was illiquid and other liquid, there shall be execution immediately in respect of the latter. When there is an application for immediate execution of the liquid part, the liquidation of other part shall proceed by appendage, and in case the latter has been forwarded in the appeal, the other part for which there is already an executory title shall be annexed and also of the pleadings when the execution is based on judgment. SUB-TITLE II EXECUTION FOR PAYMENT OF AN AMOUNT WHICH IS CERTAIN

SECTION I SUMMONS AND OPPOSITION Article 811 – Summons or notice for execution - The Decree Holder (execution applicant) shall apply that the Judgement Debtor (execution opponent) be summoned to, within a period of 10 days, pay or indicate the assets for the purposes of attachment. Where at the preliminary stage there were proceedings for liquidation, the summons shall be substituted by notice done on the attorney appointed or at the domicile which the Judgement Debtor (execution opponent) might have selected. So also, service by summons shall be substituted by notice when the Judgement Debtor (execution opponent) having been earlier summoned for the execution of a title, another

executory title is added in the pending execution. Article 812 – Means of opposition - The Judgement Debtor (execution opponent), instead of paying or indicating the assets for the attachment, may object to the execution by way of objections or by simple application. He may also prefer appeal from order against the order which directed his service by summons. § 1: It is not lawful to use simultaneously the second and the third means; but it is permissible to use any of them and the first one, provided that there is no reproduction in one of what has been said in the other. § 2: The objections are meant specially to plead facts which cannot be proved by way of documents. When the execution opponent is availing of this remedy, he may plead therein all the defences that he has. Article 813 – Grounds of defence when execution is based on a judgement - If the execution is based on a final judgment, the objections may be raised, only on any of the following grounds: 1. Lack of locus standi of the Decree Holder (execution applicant) or of the Judgement Debtor (execution opponent) or his representation; 2. Erroneous joinder of prayers or erroneous joinder of the execution applicants; 3. Non enforceability of the title; 4. Falsity of the proceedings or of the integral copy of the same or authenticity of the later which has bearing on the merits or manner of execution; 5. Absence or nullity of the first summons in the suit when the defendant has not participated in the proceeding; 6. Absence of any requirement necessary to make the obligation certain, liquid and enforceable; 7. Res judicata of the judgment operating from a previous judgment different from that under execution; 8. Prescription of the right or of the obligation, or of the installments accrued after the judgment; 9. Any other fact which extinguishes or modifies the obligation, provided that it is subsequent to the passing of final judgment and it is proved by the document. § Sole Paragraph: Lack of locus standi of the execution applicant or of the execution opponent consists in not being the person or legitimate successor in whose favour the judgment was passed

or against whom it is res judicata. •See also Articles 46, 53 and 58 and following of this Code.

mentioned in the previous article, but also on the following:- 1. Nullity of the arbitral clause, arising either from the object or the capacity of persons; 2. Lapsing of the arbitral clause; 3. Nullity of the trial judgment, when the parties have renounced previously to the appeals. •See also Articles 668, 1562 and 1564 of this Code.

Article 815 – Grounds of objection when execution is based on another title - When the

execution is not based on the final judgment, in addition to the grounds of objection specified in article 813, to the extent applicable, any other grounds which would be available as defence in a suit for declaration. § Sole Paragraph: If it is a case of execution of credit secured by mortgage, the locus standi of the Judgement Debtor (execution opponent) may be raised on the basis that another person is the possessor of the assets mortgaged. •See also Article 56 paragraph 1 of this Code.

Article 816 – Time limit for objection - The objection by way of “embargo” or by simple

application shall be filed within the period of 10 days from the time of the service of summons, except where the ground is supervening, because in such case the ground should be raised within 10 days subsequent to the occurrence of respective fact. § 1: The objections shall be filed in paragraph wise pleadings. § 2: The objection by way of simple application shall not be granted without prior hearing of the Decree Holder (execution applicant). Article 817 – Norms for the objections - The objections shall be immediately rejected: 1. When they are filed beyond the limitation; 2. When the ground raised does not really fit in the provisions of articles 813 and 814; 3. Where it is manifest that objection of the Judgement Debtor (execution opponent) cannot be entertained.

If the case does not fit in any of the above clauses, the objections are to be accepted and shall be processed as an appendage. Time of 10 days shall be given to the Decree Holder (execution applicant) for inspecting the file of the proceedings in order to contest the objections. Thereafter without any further pleadings, the procedure of an ordinary suit for declaration shall be followed. •See also Articles 481 no. 3, 811 and 812 of this Code.

Article 818 – Effect of receiving objections - The acceptance of objections filed against the

execution based on final judgment shall not suspend the execution, unless the applicant of objections deposits the amount demanded or corresponding value by way of credit instruments with discount of 20% over the quotation, or he furnishes security of the equivalent amount by way of mortgage or bank guarantee of a reputed bank. § Sole Paragraph: If the objections do not cover whole amount subject of execution, the execution shall proceed further to the extent is not covered by the objections even where the objector makes the deposit or furnishes the security. If the objections are filed to oppose execution based on title different from a final judgment, the objector may get stay offering the security by any of the means indicated in article 436 and in no. 2 of article 443.

Article 819 – Furnishing of security - When the execution against which objections are in

progress, the Decree Holder (execution applicant) or any creditor may not seek payment, as long as the objections are pending, without furnishing the security. If the Decree Holder (execution applicant) or the creditor is to receive immobile assets, the amount of the security shall be fixed considering two years income of those assets; in all other cases the value of the thing to be delivered is considered for the purpose of furnishing the security. •See also Article 443 of this Code. Article 820 - Objections suo-moto - Even though there is no objection, no execution based on conciliation or contract over an object which does not admit compromise, shall be admitted nor allowed to be prosecuted.

SECTION II ATTACHMENT SUB- SECTION I ASSETS WHICH MAY BE ATTACHED Article 821 – Object of execution - Only assets may be the object of the execution. As a rule all the assets of the debtor and only these assets are subject to execution. Article 822 – Assets which cannot be attached - The rule that all the assets of the debtor are subject to execution is subject to exceptions which are enumerated below. The following assets are not subject to attachment in execution: 1. The assets of the State and of colonies, except where the execution is pertaining to a certain thing or for the payment of debt which is secured by privilege or mortgage; 2. The assets of all the public bodies meant for public purpose, with the exception prescribed in the previous item; 3. Buildings and objects meant for public cult; 4. Tombs; 5. The assets or rights which law declares to be inalienable or are duly compromised is not permitted; 6. Fixed or moveable material of the railways; 7. The object of which seizure would be offensive to the public morality and those objects which have no economic value; 8. Homes of families; 9. The commodities and provisions which are necessary for the sustenance of the Judgement Debtor (execution opponent), of his family and his house personnel for one month and combustible which is to be consumed during the same length of time; 10. The objects indispensable for bed and bedding of the Judgement Debtor (execution opponent), his family and his house personnel; 11. The utensils absolutely indispensable for any household;

12. The dress which the public employees are using for performance of their functions and military equipments; 13. The books, utensils, implements and any other objects strictly necessary for exercise of function or of profession; 14. Two thirds of the salary of military personnel, of revenue of public officers, earnings, wages and salaries of any employees and workers; 15. Two thirds of family pensions for maintenance (alimony), of the amounts paid by government or by any other establishment or company towards pension retirement, help, sickness, old age, pension fund, insurance, compensation for accident or life time rent, and of any other pensions of similar nature;

§ 1: Private chapels may be attached if there are no other assets; and along with them may be attached the objects which are meant for religious cult. § 2: Seizure has no economic justification when there is ground to believe that the proceedings of sale of assets is so insignificant that the seizure is purely for the purpose of causing prejudice to the Judgement Debtor (execution opponent). § 3: The assets mentioned under no. 13 may be attached if they are indicated by the Judgement Debtor (execution opponent) or if the execution arises from the purchase price of the said objects. The utensils and the instruments of agriculture may also be attached along with land in which they are permanently used. § 4: The amounts and pensions referred to in clauses 14 and 15 may be attached till one half when the execution arises from the purchase of the same food or commodities supplied for maintenance of the Judgement Debtor (execution opponent) or of his ascendants and descendants. § 5: The titles and certificates of the public debt are not attachable except where voluntarily offered, and they will be deemed as voluntarily offered when found in the possession of the debtor or even when they are entered in his name.

Article 823 – Attachment of undivided assets - It is lawful to attach right of the Judgement

Debtor (execution opponent) to undivided assets; but, it is not lawful to attach the assets themselves or one part thereof, unless the execution is instituted against all the co-owners. •See Article 2177 of the Civil Code.

Article 824 – Assets attached in execution against husband - In the execution instituted against

the husband only his exclusive assets may be attached and his right to moiety in the assets under communion. § Sole Paragraph: When the debt is of civil nature, upon the attachment of the right of moiety, the execution shall be suspended until dissolution of the marriage or judicial separation of assets is decreed. •See Article 1114 paragraph 1 of the Civil Code. Article 825 – Assets to be attached in execution against societies - In the execution instituted against a Commercial society it is impermissible to attach private assets of the member, when they are subject to payment of the debt; but only after exhausting all the assets of the society. •Commercial Code article 153 paragraph 1.

Article 826 – Assets to be attached in execution against an heir - In the execution moved

against an heir, only the assets which he got from the estate leaver may be attached. When the attachment falls on other assets, the execution opponent may apply that the same may be lifted indicating at the same time the assets of inheritance which are in his power. The application shall be granted if, after hearing the Decree Holder (execution applicant), the latter does not raise an objection. If the Decree Holder (execution applicant) objects to lifting of the attachment, the Judgement Debtor (execution opponent) may get it, if he has accepted the inheritance pure and simple, by way of objections of the third party in which it is alleged and proved: 1. That the assets attached have not come from the inheritance; 2. That he has not received from the inheritance more assets other than he indicated or, if he has received more, the others were applied for satisfying the burdens of the inheritance. •See Article 2019 of the Civil Code. Article 827 – Assets to be attached in execution against surety - In the execution instituted against the surety it is not lawful to attach the assets of the latter unless all the assets of the principal debtor are exhausted first, provided that the surety has such right and has actually invoked the benefit of exhaustion.

Even though the surety could not avail of the same benefit, he shall always have the right to indicate for the purpose of attachment, the assets of the debtor if he has assets free and without burden, in condition of being attached and situated within the jurisdiction where the execution is pending or in the jurisdiction where the assets of the surety are lying. After the assignment of the assets is made, the attachment will start with the assets of the debtor and the assets of the surety shall be attached only if the assets of the debtor are found manifestly insufficient. § Sole Paragraph: When the assets of the debtor must be exhausted in the first place and it has been so done, the surety may stop the execution on his own assets in the event he designates assets of the debtor acquired subsequently or which were not known earlier. •See Articles 830 and 833 of the Civil Code.

Article 828 – Attachment of sailing ship - The ship cleared for journey may not be attached unless it is on account of debt to the State or obtained for acquiring provisions during the journey or for payment of salaries or help or salvage or as a consequence of liability towards collision. § 1: The vessel is deemed as cleared for journey when the respective captain has with him the clearance of the captain of ports. § 2: The judge who orders that attachment shall communicate immediately to the captain of ports to prevent the journey of the ship. •Commercial Code article 491. Article 829 – Attachment of cargo in a cleared ship - The cargo already stored in the ship cleared for voyage shall not be attached unless the same belongs solely to the shipper and the ship does not carry passengers. Article 830 – Conditions for unloading in attachment of loaded goods - After the attachment of the goods already loaded is done, the unloading may be permitted if the creditor satisfies fully the due freight, expenditure of loading, expenses of cargo, storage, dislocate, delay and discharge or furnish security towards payment of such expenses. Once the security is furnished, on the aspect of fitness of the security, the captain of the ship shall be heard who will give say within 48 hours. After the unloading is permitted, endorsement will be made in the document held by the captain

and communication will be passed to the captain of the port. •Commercial Code article 491 sole paragraph. Article 831 – Attachment of assets in the hands of third party - The assets of the Judgement Debtor (execution opponent) shall be seized even though for any other title, they are found in possession of a third party. Article 832 – Precautions when assets are stated to belong to a third party - In the event, at the time of attachment the Judgement Debtor (execution opponent) or any other person in his name, declares that particular assets belong to a third party, the official shall inquire under what title they are in the custody of the Judgement Debtor (execution opponent) and shall ask production of the documents in support of the plea. In case of doubt, the court shall decide, after the hearing the Decree Holder (execution applicant) and the Judgement Debtor (execution opponent) and after necessary inquiry. § Sole Paragraph: When the official refrains from effecting the attachment on his own, the notice of the fact shall be given to the Decree Holder (execution applicant) to take such steps as he thinks fit on the matter.

Article 833 – Declaration of insolvency or bankruptcy - If the assets of the debtor are not

sufficient for the payment of the debts of the execution and the Decree Holder (execution applicant) has no possibility of obtaining, by other way the totality of his credit, any creditor may

apply that the insolvency or bankruptcy of the Judgement Debtor (execution opponent) be

declared and the file shall be remitted to the competent court to follow required steps making use of the records which are processed. •See Articles 1135 and following, and article 1355 and following of this Code. SUB SECTION II INDICATION OF ASSETS FOR ATTACHMENT Article 834 – Terms on which Judgement Debtor (execution opponent) may indicate assets for attachment - The Judgement Debtor (execution opponent) has rights to indicate the assets which will be subject of attachment, with the following limitations:

1.The assets indicated must be alienable and sufficient for payment to the Decree Holder (execution applicant) and costs; 2. The indication shall start with moveable or immoveable assets located in the judicial division, without distinction, and thereafter situated in the continent or in the island where execution is pending and lastly the assets situated in the colonies or in a foreign country; 3. Only in the absence of moveable or immoveable assets rights and shares may be indicated. § Sole Paragraph: If the Judgement Debtor (execution opponent) indicates immoveable assets, at the time of indicating he shall furnish the respective title documents or if he discloses that he does not have them, shall indicate the source of the assets. The title deeds shall remain deposited in the office of the court to be given to the purchaser in auction or to the allotee. Article 835 – Assets which need not be indicated - If the case is of the debt with privilege, mortgage or guarantee on immoveable properties, the attachment shall, apart from the indication, begin with the assets covered by privilege or guarantee and it will fall on other assets only if it is found that those assets are insufficient to achieve the purpose of the execution. Article 836 – Cases when the right to specify assets devolves on the Decree Holder - The right to indicate assets devolves on the Decree Holder (execution applicant): 1. When the Judgement Debtor (execution opponent) does not indicate assets within the time laid down by law; 2. When in the indication, the Judgement Debtor (execution opponent) has contravened the provisions of article 834; 3. When the assets indicated by the Judgement Debtor (execution opponent) are not traced; 4. When there is manifest insufficiency in the assets indicated by the Judgement Debtor (execution opponent). In such cases the indication made by the Judgement Debtor (execution opponent) shall stand and the Decree Holder (execution applicant) shall indicate the assets necessary to move up the insufficiency. Article 837 – Indication how made - The indication may be made either by way of application or by record signed in the proceedings, and in such case as far as possible identification of the

assets is to be given. As to the assets, the denomination or police number, if any, shall be indicated, situation and boundaries, and number of description if they are registered in the Land Registration Office. As to the movables, the place where they are found shall be indicated and their particulars, if possible. As to the credit instruments, name of the debtor, the nature and origin of the debt, the title document supporting the credit instrument and the date of maturity. SUB-SECTION III ATTACHMENT OF IMMOVABLES ASSETS Article 838 – How attachment of immovables is done - The order which directs the attachment shall be notified to the Judgement Debtor (execution opponent). From the time of the service of the notice the seizure shall be deemed as done and the Judgement Debtor (execution opponent) shall stand, in respect of said assets in the position of a depositary. In relation to third party the seizure shall produce effects from the date of the registration. The registration shall have as basis one certified copy in which names of the Decree Holder (execution applicant) and of Judgement Debtor (execution opponent) and the amount for which the execution has been moved and it is declared that attachment of specific assets has been ordered. When such assets are already described, the identification shall consist in indicating the respective numbers. One note with the mention of the date of the registration shall be annexed to the file of proceedings.

Article 839 – Delivery to a Court receiver - The Decree Holder (execution applicant) may

apply that the attached assets be handed over to a Receiver different from the Judgement Debtor (execution opponent). The receiver shall be chosen in such case by the judge under information of the office, and person chosen should be of the fitness corresponding to income of the assets for the period of one year. Only with the express consent of the Decree Holder (execution applicant) the depository may be the spouse of the Judgement Debtor (execution opponent) or any relative by blood or affinity, in

direct line or in the first degree in the transversal line. § Sole Paragraph: Record shall be made in the file of the handing over the asset to the Receiver signed by him or by two witnesses when the Receiver is unable to sign. To the Receiver shall be handed over a list of assets deposited, if he so demands. Article 840 – Effective delivery - If the Receiver finds difficulty in taking charge of the assets or had doubts over the object of the deposit, he may apply that one employee goes to the site of the location of the assets and makes him effective delivery at the site. When the doors are closed or there is some resistance offered, the employee shall seek the assistance of local administrative authority of the parish and also police force. The doors shall be opened by breaking in the presence of local administrative authority with two witnesses and the report of the occurrence shall be made.

Article 841 – Special Receiver - If the assets are rented or under share cropping agreement, the Receiver shall be the tenant or share cropper. If the asset is let out to more than one person, amongst them one shall be chosen as depository who shall collect the rent from other lessees. The rent in cash shall be deposited as and when accrued or collected in the establishment where the judicial deposits are made.

Article 842 – Extension of attachment - Attachment of fruits - The attachment shall include

the property with all its appurtenances, fruits and products which are not expressly excluded or over which there does not exist any privilege. If the property is destroyed, deteriorated or acquired, right of the execution applicant arising from attachment stands transferred to the compensation which is realized there from. § Sole Paragraph: Pending fruits may be attached also in separate as moveable property provided that they do not go beyond one month from the normal time of the collection of the fruits.

If it so happens, the attachment of the property shall not include that of the fruits; but they may

again be attached without prejudice to the prior attachment. Article 843 – Administration of attached assets - It is the duty of the Recever to look after and

administer the assets with diligence and zeal as a good father of the family, and with the obligation to render accounts thereof. If the Decree Holder (judgment creditor) and the judgment debtor agree how to explore the attached assets, such agreement shall be followed. In the absence of any agreement, the building assets shall be let out, if not let out so far, and the

rural properties let out, given for cultivation on partnership or cultivated directly as the grant

composition to the society or to one or more members of unlimited liability Receiver deems fit. The Decree Holder (judgement creditor) or the judgment debtor may offer a more advantageous tenant, which the Receiver will be bound to accept; and they can also agree that the tenancy be awarded in public auction or by sealed tenders and in such event they will be liable to pay costs, if nobody offers higher rent. It is not lawful for the Receiver to create tenancies for a time limit higher than one year.

Article 844 – Remuneration of Receiver - The Receiver has the right to some remuneration

which shall be fixed by order of the Court in proportion to inconvenience caused to the Receiver, after hearing the Decree Holder (execution applicant) and Judgment Debtor (execution opponent) but shall not exceed 5% of the net income. Article 845 – Removal of Receiver - The Receiver, who fails to comply with the duties of his office, shall be removed upon the application of any interested party. The procedure for his removal shall follow the terms of article 1439. Article 846 – Conversion of seizure into attachment - If the assets have been seized, by order of the court the same shall be converted into attachment and respective entry shall be directed to be made in the land registration records. Article 847 – Guarantee from attachment – lifting of the same - The assets attached secure the fulfillment of the obligation, even though they have been transmitted, so long as the registration of transmission be subsequent to the registration of the attachment. However, if, on account of negligence of the Decree Holder (execution applicant), the execution is pending for more than six months, the Judgement Debtor (execution opponent) may seek the

lifting of the attachment, the cancellation of its registration and the direction to the execution applicant to pay the costs to which he gave cause. § Sole Paragraph: Execution shall be treated as stopped even if it has been remitted to draw up the account of costs or the costs have been paid. SUB-SECTION IV ATTACHMENT OF MOVEABLE ASSETS Article 848 – How attachment of moveables is done - The attachment shall be done by actual

seizure of the assets which shall be handed over to a Receiver with a financial capacity

corresponding to the probable value of the movables, unless they can be shifted to office of the Court or any place of public deposit or they may be kept in any compartment of the house where they were found. In the latter case such room shall be sealed. There shall be a record of the attachment made in which mention has been made of the time, that is, when the steps were taken describing specifically the assets and indicating their value and their destination of all the attachments which may have been made on the same date, one record shall be maintained. The money, credit instruments, stones, precious metals which might have been seized shall be deposited in the establishment where the judicial deposits are made on the orders of the Court. If there are assets in the conditions of no. 3 of article 433 whatever is said in that number shall be complied with. Article 849 – Physical obstruction - If the Judgement Debtor (execution opponent) or person who represents him refuses to open the door or movables or if the house is deserted and the doors and movables are within the closed place, whatever is said in article 840 shall be observed. Article 850 – Liability for malafide concealment - The Judgement Debtor (execution opponent)

theft. When the official, at the time of attachment suspects that there is concealment he will direct production of the objects with a warning to the person that he will be liable for the offence of concealment. Article 851 – Assets which may be sold - The depository shall sell the assets which cannot be preserved being subject to deterioration or depreciation. He may also sell live stock on his own initiative or upon the application of any of the parties, but the sale must be authorized by the court after hearing both the parties or persons other than the applicant. § Sole Paragraph: It is lawful, at the instance of Decree Holder (execution applicant) with notice to Judgement Debtor (execution opponent) to permit the sale of any assets whenever the delay becomes prejudicial. Article 852 – How a Receiver can cause an attached ship to navigate - The Receiver of an attached ship may make the ship navigable if the Judgement Debtor (execution opponent) and Decree Holder (execution applicant) are in agreement to get judicial authorization. If the authorization has been applied for, those interested parties shall be notified if they have not given their assent seeking their reply within 48 hours. If the permission is granted notice will be given by official letter to the captain of the port.

Article 853 – How any creditor can cause an attached ship to navigate - Irrespective of

conditions required by the preceding articles, any creditor may apply that an attached ship continue to navigate until it is put in auction, provided that security is furnished with usual insurance against the risks. The security shall be guarantying the debt subject of execution and costs of the proceedings. The Decree Holder (execution applicant) and the captain of the ship shall be served the notice to give their say on the suitability of the security and sufficiency of the insurance. If the application is allowed, the ship shall be handed over to the applicant, who shall stand for all the purposes in the position of depository and the notice of this fact shall be given to the captain of the port, by office letter.

Article 854 – Duty of Receiver to produce assets - Sanction - The Receiver is bound to

produce, when so directed, the assets which he received, save for what is provided in the preceding articles. If he does not produce the same within 5 days, he shall be detained for the period corresponding to value of the deposit, calculated at the rate of 10 escudos per day and the prison shall not exceed two years; at the same time execution shall be taken in the same proceedings for the payment of the deposit value. The imprisonment shall cease as soon as such payment has been made or the Receiver begins to undergo the penalty to which he has been sentenced in criminal proceedings. Article 855 – Application of provisions relating to attachment of immovables - In all the rest to the extent possible, what is provided in previous sub-section shall apply. SUB-SECTION V ATTACHMENT OF CREDITS OR RIGHTS Article 856 – Attachment of credits and rights: how made - The attachment consists of notice to the debtor that the credit stands attached. The effect of such notice is that the credit stands subject to the order of the court of execution, and the debtor is not exonerated from making the payment to the creditor. The debtor shall be warned of such effect, at the time of service of the notice. The debtor is bound to declare whether such credit exists, what guarantees support the same, on which date the debt is payable and any other circumstances which may be relevant to the execution. In the event the debtor is unable to make above declarations at the time of service of the notice, he may do it thereafter by record before the court or by simple application. In the absence of any such declaration, it is understood that the debtor acknowledges the existence of such obligation in accordance with terms provided in the assignment of the credit for the purpose of attachment. If the debtor does not disclose the truth, he shall incur the liability as litigant in bad faith. •See also Article 465 of this Code.

Article 857 – Attachment of installments of credit - In case of an instrument of credit, the

notice shall be issued to the judgement debtor to deliver the instrument; in case of refusal, steps will be taken for seizure. The same procedure shall apply if the debt is evidenced by an instrument which for any other reason, needs to be seized. All steps necessary for the preservation of the right to the credit may be ordered. § 1: If the credit is guaranteed by pledge, the same shall be attached by applying the provisions relating to attachment of the movables or shall be made by the transfer of right in favour of Decree holder (execution creditor); in the event the credit is guaranteed by registered mortgage, necessary endorsement of attachment shall be made in the records of the registration. § 2: If it is a case of debt instrument or certificates of public debt, subject to the execution with restrictions imposed by paragraph 5 of article 822, the attachment shall consist of registration made in favour of credit of the execution. The court shall requisition the registration before the Board of Public Credit by means of official communication, accompanied by the instruments of title or certificates, indicating the Receiver.

Article 858 – When debtor denies existence of credit - In the event the debtor denies the

existence of the credit, notice shall be issued to the Decree Holder (Execution creditor), Judgement debtor and the debtor to appear before the court on the date fixed for the purposes of hearing. If the debtor persists in denying the existence of the credit, the Decree holder (execution creditor) shall declare whether he maintains the prayer for the attachment or withdraws the same. If the Decree holder (execution creditor) insists on the attachment, the credit which has been attached shall be considered as litigious and as such shall be awarded or auctioned; if he withdraws, the Judgment debtor may apply that the attachment may subsist, and in such case he shall indicate a fit person who undertakes to offer the bid in the auction of the credit with the indication of the price offered.

Article 859 – When Judgment Debtor needs to perform an obligation - If the debtor declares

that the fulfillment of his obligation depends upon the Judgement debtor performing obligation on

his part, the Judgement debtor shall be given notice to perform the said obligation within the period of ten days. When the Judgement debtor does not comply with it, the Decree Holder or the Debtor may demand the fulfillment, by prosecuting the respective execution. The Decree Holder may also substitute himself in the place of Judgment debtor in the matter of fulfillment, in which case he will be subrogated in the rights of the debtor. If the Judgment debtor challenges the declaration of the debtor and it is not possible to end the controversy, the provision of preceding article shall be followed with necessary modifications. § Sole Paragraph: In the cases referred to in the second clause of this article, the enforcement of the condition may be demanded in the same proceedings by way of attached proceedings without necessity of issuing summons to the Judgement debtor, and the order passed in terms of the first clause shall operate as executive title.

Article 860 – Attachment of allowances and salaries - When the attachment covers any

allowances or salaries, notice shall be issued to the entity entrusted with preparation of necessary papers connected with allowances or salary, to effect the deduction corresponding to the credit attached. Article 861 – Deposit in the Treasury - The person notified when he does not contest the debt, and as soon as the same matures, shall be bound to deposit the respective amount in the

establishment where the judicial deposits are made, at the order of the Court, and the document

showing the deposit shall be annexed to the file. If the obligation does not consist of payment of an ascertained amount, the person notified, shall be considered as a Receiver of the consideration, in accordance with the previous sub-sections. § Sole Paragraph: In the case foreseen in previous article the deposit shall be made by the entity entrusted with the payment.

Article 862 – Attachment of amount deposited with the establishment where the judicial

deposits are made - The attachment made of the amount deposited in the establishment where the judicial deposits are made shall be done in the very document of the deposit, by maintaining the record in the file in which it exists, before the authority having jurisdiction over the deposit.

Article 863 – Attachment of rights to undivided assets - If the attachment has as its object the right to assets under indivision, the steps shall consist solely in giving the notice of the fact to the administrator of the assets, if any, and to the co-owners. At the time of service of the notice, or within the period of 3 days, the noticees shall make declaration which they deem fit, as to the right of the execution debtor and to the manner in which it may be made effective. When the right is contested, the attachment shall subsist or shall end as per the decision of the execution creditor and execution debtor, in accordance with article 858. SECTION III NOTICE TO THE CREDITORS AND VERIFICATION OF THE CREDITS Article 864 – Notice to creditors and spouse - As soon as the attachment is done, the creditors of the execution debtor shall be summoned to file their claims in the execution, and also spouse of the execution debtor shall be summoned whenever attachment relates to immoveable assets. The creditors in whose favour there is registration of any burden over the attached assets and all other known creditors are summoned by registered letters addressed to their domicile, which is reflected in the registration, except where they have different known address. The unknown creditors shall be summoned by way of publication for 20 days. § Sole Paragraph: The absence of summons directed in this article has the same effect as absence of service of summons on the defendant, but does not amount to annulment of the sales, adjudication or redemption already effected, nor even of the payment already made, and the spouse or the creditor who have not been summoned have the right to be paid compensation for the loss by the execution applicant. •See also Article 194, no, 1 of this Code. Article 865 – Claim by creditor - The creditor who desires to obtain payment shall file his claim within 10 days from the date of the service of summons, indicating the nature, quantum and

origin of his credit and leading all the evidence. If the creditor has privilege or preference over the attached assets, he shall be admitted in the execution even though his credits have not matured, and in such case in the matter of calculation of the interest, the deduction corresponding to the time which falls short for the maturity shall be made. If there is no privilege or preference over the attached assets, claim shall be admitted only when the credit is matured. § 1: If the attachment on the assets has taken place, subsequent to the time limit fixed in this article, the creditor with a privilege or preference shall file his claim within the period of 10 days from the service of summons or if he is not summoned, from the date when he has knowledge of the attachment. § 2: The creditor shall be admitted even though he is not armed with executive title. § 3: If the obligation is not certain or is illiquid, the creditor shall make it certain and liquid using the remedies available to the execution creditor. •See also articles 46, 803 to 806 of this Code. Article 866 – Objections over reclaimed credits - After the period of filing the claim of the creditor, the same may be contested within 8 days, by any creditor, by execution creditor or execution debtor. The objections may have as a ground the nullity, prescription, simulation, falsity and any other cause which extinguishes or modifies the obligations. However, if the credit has been recognized by final judgment, the objection may be based on any of the grounds mentioned in article 813, to the extent applicable. § Sole Paragraph: With the objections all the evidence shall be produced. Article 867 – Reply - The creditor, whose credit has been challenged, may reply within 5 days of the period fixed for filing objections. § Sole Paragraph: What is provided in sole paragraph of the previous article is applicable to the reply. Article 868 – Subsequent steps: verification and grading of credits - Thereafter, the procedural steps of ordinary proceeding or summary proceeding of declaration, subsequent to the pleadings are to be followed, depending upon whether claims have been filed for an amount

higher than the limit prescribed for summary proceedings. The credits shall be verified and marshalled as per legal provisions which are applicable and the credits not objected are deemed to be recognized. Article 869 – Right of creditor with a pending suit - If the creditor has his suit pending, he may apply up to the time fixed for filing of his claim of the credits, that the suit file may be transferred to the Court of execution and incorporated in the former, except where the date for arguments and judgement has been fixed.

After the file is transferred, the suit shall, as regards subsequent steps, be subject to the

formalities of the procedure of verification of the credits. § 1: If the creditor has privilege or preference on specific attached assets, the execution shall be suspended in respect of the said assets, as soon as the documents proving the pendency of the suit are annexed and it will only proceed after the final judgment having executory force. But if the suit is not moving on account of negligence of the plaintiff, for more than 20 days, the execution creditor may apply the further steps of the execution petition. § 2: If the transfer of the file is not permissible on account of fixation of the date of the arguments and judgement of the suit, the creditor, if desires to intervene in the execution, shall produce within the time limit for filing the claims, documents to prove the pendency of the suit and stage at which is reached. After the suit is decided finally in his favour the creditor shall be admitted in the execution. Article 870 – Indication by creditors of other assets for attachment – Declaration of Insolvency - The creditors, whose credits have been verified or recognized, may assign for the purpose of attachment assets other than those which have been already attached. As soon as it is found that the assets are lesser than the liabilities, the insolvency of the execution debtor shall be decreed and the proceeding shall be transferred to the competent court for the purpose of declaration of insolvency, if the court is different, for the purposes of following there the respective steps, making use of whatever has been processed. § Sole Paragraph: When other assets have been attached, the creditors in whose favour burdens over such assets have been registered shall be summoned personally, if they are not parties to the proceedings.

•See also Article 1355 and following of this Code. Article 871 – Multiple executions over assets - If there is more than one execution proceeding over the same assets, the execution in which the attachment has been done subsequently shall be stayed and Decree Holder (Execution Creditor) shall file his claim in the file where the assets have been attached in the first place. The execution petition shall be stayed only as regards the assets attached in the other file. SECTION IV PAYMENT SUB SECTION I MODES OF PAYMENT Article 872 – Modes of payment - Satisfaction may be effected by payment of money or by certificate of public debt, by allotment of assets, by allotment of their income or by realization of sale price. SUB-SECTION II DELIVERY OF MONEY OR OF CERTIFICATE Article 873 – Payment by money or by delivery of certificate - If the attachment has fallen on currency or credit in money deposited, the Decree Holder or any creditor who has priority shall be paid of his credit in cash. If documents of public debt are attached and the creditor proposes to receive the money by way of certificate, the judge shall declare to whom the sale certificate shall be given, in order that the creditor may obtain the endorsement in his favour. If the certificate has been issued in favour of different creditors they may apply to the board for the respective splitting. •See also Article 822 paragraph 5 of this Code.

SUB-SECTION III AWARD Article 874 – Requisites for award - Once the credits are accepted and marshalled, the Decree Holder (Execution creditor) or any creditor may demand that assets attached be awarded to them to the extent they are sufficient for the satisfaction of their credit. If the judicial sale has been announced, the sale shall not be stayed and the request shall be taken into consideration only where there are no bidders or participants. The applicant shall indicate the price he is offering which may not be less than that for which they would be put for sale in auction, whenever the award has been asked before the biding for second time.

Article 875 – Adjudication where there are no bidders - When an application is made for

awarding the property, the fact shall be made public by way of public notices and also notices in the newspaper in the same manner as for the auction and notice will be issued to the judgement debtor, to the creditors with the exception of the execution creditor and to the persons who have preferential right over the assets. Within the time of 10 days counting from publication of last notice any person may offer the highest price. If any communication is done after the publication of the last notice, the time limit starts from the date of the notice. If there is no offer within the time and within that period there is nobody to exercise the right of preference, the assets shall be awarded to the Decree holder (execution creditor) when he deposits what has to be deposited, in accordance with article 906. The Decree Holder (execution creditor) shall be notified to make the deposit within the period of 8 days. Article 876 – Award where there is bid - There being a more advantageous proposal, a date shall be fixed for the auction, by making necessary publications and issuing notices. The auction shall be opened on the basis of the highest bid, and the assets may be awarded to the

highest bidder, but those who have preferential right may exercise the same in the proceedings of the award. Where there are two offers of equal price which have not been exceeded at the auction the creditor who is on the first place in the list of marshalling shall be preferred, except where his credit is lesser than half of the price and other creditor exceeds such half. Where the creditors are in the same position or the proposals being of third parties, the assets shall be awarded in common to the proposers, except any one of them applies that licitation be held amongst them. Article 877 – Lapse of encumbrances and rights - The assets shall be awarded free from any burdens and rights, which are to lapse. Article 878 – Application for adjudication of incomes - The creditor who is marshalled at the first place may demand that, instead of awarding the ownership of the assets, he may be awarded their income only. On such request the judgement debtor shall be heard as well as other creditors whose claims have been acknowledged, and at that time of the award if none of them makes request to put the assets on auction; but if there is an auction for the second time no such application shall be entertained, so long as there is no bidder who is offering price of the assets equivalent to that for which they are put for the auction for the second time or to the creditor who is marshalled at the first place, or there is no deposit of the amount of such credit. Article 879 – Requisites necessary to award to creditor below the first - The award of the income may also be asked by the creditor who is not at the first place, provided that there is express consent of the previous creditors or the same creditors are paid of the amount of their credits. Article 880 – Award of incomes how made - When there is a request for awarding the income, the assets shall be leased in public auction or by closed envelopes and other formalities relating to judicial sale shall be observed, except where the debtor and the awardee agree that lease may be granted privately. After the costs of the execution are paid, the rents shall be collected from the awardee and the assets shall continue leased, until the awardee is reimbursed of the amount of his credit.

The awardee shall be in the position of lessor, but he shall not evict the lessee, nor shall he take any resolution in connection with the assets, without consent of the Judgment debtor and of other creditors. When it is not possible to arrive at an agreement, the matter shall be decided by the court.

§ Sole Paragraph: If a fresh lease is required, what provisions of this article shall be followed.

Article 881 – Register of Awards - The award of income may be registered as an encumbrance on the assets on the basis of order which sanctions it. SUB SECTION IV SALE DIVISION I KINDS OF SALE Article 882 – Kinds of sale - After the claims of the creditors are accepted up to time when the claims could be filed, there shall be sale of the assets attached, if the assets have not been disposed by way of award. Sale may be judicial or extra judicial.

Article 883 – Modes of judicial and extra judicial sale - The extra judicial sale may take

following forms: a) Sale in Stock exchange or commodity exchange; b) Direct sale to entities which by law have right to acquire specific assets; c) Sale by way of private negotiations; d) Sale through establishment of auctions; Judicial sale may be made by written tenders of offers made in closed envelopes or by licitation in public auction. DIVISION II EXTRA JUDICIAL SALE Article 884 – Sale through exchanges - The credit instrument shall be sold in exchanges where

the sales have quotation in the market. In the judicial divisions where there are exchanges for commodities, such commodities or other assets which are quoted there, shall be sold. Article 885 – Direct sale by force of law - If the assets are by law to be handed over to specific entities they shall be sold to them directly. Article 886 – Sale by private negotiation - The sale shall be done by private negotiation: 1. If all the interested parties are in agreement or there is agreement between judgement debtor and creditors who represent majority of the credits; 2. If the sale is ordered by the court or upon the application of any interested party when the assets by their insignificant value cannot bear expenses of public auction or when there is urgency. § Sole Paragraph: The interested parties to whom this article refers are the judgement debtor and the creditors. Article 887 – Sale by private negotiation: how done - When the assets are to be sold by private negotiation, a person shall be appointed, who shall be entrusted with the sale, price of which is fixed immediately at the minimum. The person so appointed shall act as an agent and the resolution passed by all the interested parties or by order of the court shall act as creation of an agency. If there is no minimum price fixed, the agent shall not make sale for the price inferior to that for which would go in auction and plus one fourth, except by special permission of the source which created the agency. § Sole Paragraph: If there is an appeal pending, ordinary or extra ordinary, against the judgment which is sought to be enforced by way of execution declaration of the same circumstance shall be made at the time of the sale. •See also Article 677 of this Code.

Article 888 – Sale in auction house - Movables shall be sold in an establishment of public

auction when there is one such in the judicial division where the assets are, or nearby where they may be transported without deterioration or excessive expense.

The sale shall be effected by the staff of the establishment and as per the rules in force. The manager of the establishment shall deposit the net amount in the establishment where the judicial deposits are made, at the order of the Court and the supporting documents shall be annexed to the file. The creditors, judgement debtor and any licitator may complain against the irregularities which are committed at the time of the auction. In order to decide the objection the judge may examine or direct the inspection of the books of the establishment, hear the respective personnel and examine the witnesses which are offered and then take any other procedural steps. The auction shall be annulled if it is found that irregularities committed vitiate it substantially and the owner of the establishment shall be directed to reimburse the money without prejudice to the losses and damages caused. The act shall be repeated in another establishment and if there is none, there shall be judicial sale or sale by private negotiation. DIVISION III JUDICIAL SALE Article 889 – When auction is to be proceeded with - When there are no cases foreseen in the preceding articles 884 to 888, the assets shall be sold in public auction, except where in accordance with article 886, it is decided to effect the sale by means of closed tenders. Article 890 – Public notice and Advertisements for Judicial sale - In order to give greater publicity the date and time shall be fixed for auction or opening of the tenders, with necessary anticipation by way of Public notices and advertisements. The public notices shall be affixed, with anticipation of 10 days, one on the door of the executing court and other at the door of the house of administrative authority of the village, where the assets are located. If it is a case of buildings, a Public notice shall be affixed on the door of the building. The Advertisements shall be published, with the same anticipation, in two issues of the most widely read newspapers of the locality where the assets are situated or in the nearest locality if in that there is none. In the Public notice and advertisement, mention shall be made of the name of the judgement debtor, the office of the court where the file is pending and the day, time and place of the auction

or opening of the closed tenders. If the assets are immovable, they shall be summarily identified and value for which the assets are going under auction shall be indicated. If the case is movables, only the type of movables shall be specified. § 1: Outside Lisboa, Porto and Funchal the auctions shall take place on Sunday, except where it is convenient to hold on any other day. § 2: If the judgment which is under execution is under appeal, special mention of this fact shall be made in the publications and notices. •See also article 887 sole paragraph of this Code. Article 891 – Duty to show assets - During the time of the public notices and advertisements, the Receiver is bound to show the assets to those who intend to examine them; but he may fix the time at which during the day inspection shall be given making them public by any means. Article 892 – Notice to preference holders - The persons to whom the law recognizes the right of pre-emption shall be notified of the day and time of the auction or of the day and time of the delivery of the assets to the proposer, in order to enable them to exercise the right at the time of the auction or of the award. § Sole Paragraph: The absence of notice has the same consequence as the absence of notice or prior communication in a private sale. If the person who exercised preference has been notified by way of publication he may file the suit for pre-emption on general terms provided that there are circumstances which lead to presume that the notice did not reach to him so as to exercise his right at the time of the auction or the award. •Civil Code article 1566(1), 1678,1694,l703,1708, 2195, 2039 paragraph 1. Article 893 – Opening of tenders - The tenders shall be opened by the Superintendent of the Court in the presence of the judge and those who are given offers and who had appeared, making a record where mention is made of the name of who had made the offers and how much price is offered and which are the assets. If the highest price is offered by more than one proposer, immediately licitation will be open between them in case they are present recording in the report the result. If the proposer does not want to have the licitation, it is understood that they propose to acquire the assets in co-

ownership. § 1: The assets shall be identified with reference to the particulars of the respective attachment. § 2: The irregularities in relation to the opening of the offers or to the licitations shall be raised in the same act. § 3: It is not open to the proposer to withdraw the proposals once the offer is made. Article 894 – Deliberation on the proposals and adjudication - The proposal shall be considered within 8 days by the Judgement debtor and by the creditors who shall be invited for that purpose. If the interested parties are not in agreement, the vote of the creditors, who represent the majority of the credits, shall prevail. However, the Judgment debtor may oppose the acceptance of any proposal, provided he immediately offers any proposer who undertakes to pay higher price. After acceptance of any proposal, the proposer shall be given notice to appear in a day and time to deposit one tenth (1/10 th ) of the price and sign the act of transfer and delivery of the assets by following what is provided to the auction bidder. § 1: If the accepted proposal has been presented, in separate, by more than one proposer and there is no auction amongst them because all of them are not present, the licitation shall take place on the date of the transfer and delivery of the assets for which all shall be notified. If they do not bid in the licitation the assets shall be awarded to them in common. § 2: If the preferred proposer or proposers do not deposit one tenth (1/10 th ) of the price, they shall be liable for penalty provided in article 904 in the case of default of payment of 9/10 ths.

Article 895 – Place of auction - The auction of immoveables shall always be done in the

premises of the court where they are situated; the auction of the movables shall be done either in the court where the movables are found or at other place which is found more convenient by express agreement of the Judgment debtor and of the creditors or by the decision of the court. Article 896 – Fixing of value at which the assets are going on auction - The immovables are put to the auction as per the value arising from taxable income as per the record of “matriz”, (Land Tax Register) except where the Decree Holder and Judgement Debtor agree on a different value.

The movable assets, the credits and immovables not described in the matriz (Land Tax Register) shall be put up on auction as per the value fixed by agreement between Decree holder (Execution

creditor) and Judgement debtor or by Decree holder (execution creditor) alone, in the absence of

agreement. Article 897 – How auction is carried out - The auction shall be presided over by the judge who shall announce the opening of the auction. The movable assets, credit instruments may be put up in auction, individually, by lots or in bulk, as agreed between the parties or found convenient by the judge. The immovables shall be put on auction one by one, except where there are special reasons of proximity or dependence, so as to make the joint auction presumably more profitable. Once the bid is open in relation to each object or lot the bailiff shall exercise the function of crier announcing in loud voice the first bid which is above the value and the succeeding bids, taking note of respective bidders. The licitation is considered final when the bailiff announces three times the highest bid. Once the licitation is over the persons who are entitled to exercise the right under article 892 to declare whether they wish to exercise the right of pre-emption. When there is more than one person with equal rights, there shall be licitation amongst them and award shall be done in favour of the highest bidder. § Sole Paragraph: The auction may be adjourned ex-officio or on the application of any interested party, when there is reasonable suspicion of collusion between the participants in the public auction. Article 898 – Record of auction - The auction shall come to an end, as soon as the price of the assets in auction is sufficient-to cover the expenses of the execution and for securing the payment to the Decree Holder and to the other creditors whose rights have been acknowledged. Article 899 – Auction of whole or part of property - Unless there is agreement between the parties to the contrary, the immovables shall be put to the auction as land and buildings property, which ever may be the relation between its value or amount for which execution has been initiated. However, when the property is susceptible of division, then the judgement debtor may pray that

only the part which is sufficient to cover the payment due, be put for auction. In the event for the first time there is no bidder for such value, the entire property shall be auctioned. Article 900 – Contents of auction proceedings - Of all the auctions which have taken place on the same day or the same proceedings shall be recorded in only one record. Article 901 – Steps where there are no bids - If after one hour there is no bid above the value which has been put for auction, the same shall be closed and fresh date shall be fixed for the second auction for half of the value by recording the same fact in the report. § Sole Paragraph: Instead of putting the assets for the second auction, the interested parties may deliberate, in accordance with clause no. 1 of article 886 or by the court suo moto that assets be sold privately or by inviting closed tenders.

Article 902 – Time gap between auctions and notice thereof - From the first auction to the

second auction there shall be a gap of minimum seven days. The notice of the second auction shall be given by only one public notice which shall be affixed, with the anticipation of three days at the places indicated in article 890 and by only one advertisement published with the same anticipation. § Sole Paragraph: There is no further notice to those who have right of preference. Article 903 – Where there is no bid in second auction - If the second auction is also abandoned, steps should be taken for the sale by closed tenders or by private negotiation, as the judge thinks fit. Article 904 – Payment of bid price – sanction for non-payment - The bidder shall deposit, at the conclusion of the auction, a one tenth (1/10 th ) part of the price and amount corresponding to the probable expenses of the licitation without which the assets shall not be awarded to him. The balance price shall be paid within 15 days on penalty of imprisonment of the bidder and the assets going again for auction to be auctioned for any amount and the last bidder of the first auction being liable for the difference of the price and to pay costs arising from the omission. Of the second auction notice will be given by public notice and advertisement with anticipation of 7 days.

The imprisonment shall not last for more than one year and shall cease as soon as the amount which was liability of the auction holder is recovered Once the office quantifies such liability, the bidder shall be prosecuted in the same execution at the instance of any interested party and the proceeding again the bidder shall be carried out by way of appendage for that the certified copy of the service of summon shall be the basis for further prosecution. § 1: The defaulting bidder shall not be allowed to bid in the second auction; but the auction shall stand if the auction bidder deposits the price till the time of opening of the second auction. § 2: If the bidder is the State or any other local authority the imprisonment shall not take place but the civil liability shall be made effective by appropriate means. If it is any other collective body, the imprisonment shall be against person responsible for offering the bid in the auction. Article 905 – Certificate of auction - Once the price is deposited and transfer tax is paid, if due, the bidder may pray that he may be issued a document of the auction in which the assets shall be identified and it will be certified that payment of the price as well as transfer tax has been paid and date of the transfer, which will coincide with the date of auction in which the assets have been awarded. § Sole Paragraph: The bidder shall have right to have out of execution proceedings half of the transfer duty, if before the auction he has not made a declaration to the contrary. DIVISION IV COMMON PROVISIONS Article 906 – Exemption of deposit by creditors - The creditor, who acquires assets through execution, shall be liable to deposit only the part of the price necessary to pay the creditors who are placed above him and which is in excess of the amount he is entitled to receive.

Article 907 – Transfer of assets shall be free from encumbrances - The assets shall be

transmitted free from any encumbrances which have not been registered prior to any seizure, attachment or mortgage, except those which have been created and produce effect in relation to third party apart from registration.

Immediately after the payment of price and property transfer tax (sisa), direction shall be issued to cancel all the registrations of the rights to the property which stand lapsed, as well as the registration of any seizures, attachment, mortgages, pledges, consignment or allotment of the income or other rights of guarantee which stand transferred as a product of auction, inclusive right of the respective creditors. Article 908 - Rescission of sale or compensation - When, after the sale is effected the existence of some burden on the property is found which was not taken into consideration and which cannot be said to have lapsed, or that there was an error over the object which has been transmitted or over characteristic of the same object on account of discrepancy in the announcement, the purchaser may ask in the proceedings of execution either rescission of the sale or damages for the prejudice caused to him. The question shall be decided after hearing the Decree holder, Judgement debtor and interested creditors and other evidence produced except where the particulars are insufficient because in such case the purchaser shall be directed to institute competent suit against creditor or creditors to whom price of sale had been allotted or otherwise sale had been allotted or otherwise should go. § 1: Once the prayer which is referred to in this article has been made before withdrawing of sale proceeds, the same shall not be handed over without security being furnished. The purchaser having been remitted to file competent suit, the security given shall be lifted if the suit has not been filed within 30 days or suit is kept in abeyance by negligence of the plaintiff for the period of 3 months. § 2: The suit referred to in this article shall be dependence of the proceeding for execution. •See also Article 443 of this Code.

Article 909 – Cases in which sale shall be of no effect - Besides the case foreseen in the

previous article; the sale shall be without effect only: a) If the judgment which has been executed is annulled or revoked by way of appeal, except if, the revocation being partial, the subsistence of the sale is compatible with such revocation; b) If the entire execution is annulled on account of lack or nullity in the service of the Judgement debtor by summons, that he has been ex-parte, with exception provided in the second part of sole paragraph of article 921;

c) If the assets have been redeemed: art.912 d) If some preferential owner has not been notified and he succeeds in the suit for pre-emption instituted subsequently; article 892, sole paragraph; e) If the thing sold did not belong to the Judgement debtor and was recovered by the owner; f) If there has been collusion amongst the bidders; g) If the highest price has been offered by more than one proposers and no licitation has been held amongst them, nor the property was awarded to all in common. § Sole Paragraph: In the case foreseen in clause a) the restitution of the assets had to be asked within the period of 30 days from the time the decision of appeal becomes final, and the purchaser should be reimbursed firstly with the price and the expenses of the purchase. If the restitution was not asked within the time indicated above, the appellant shall only have the right to receive the price. The right to apply for rescission of sale in the cases of clauses (f) and (g) also should be exercised within 30 days from the date of the sale. Article 910 – Rights of purchaser in case of eviction - When there is eviction, the purchaser has right only to seek the restitution of the price from the persons to whom the same was given except where execution debtor or the creditors had acted in bad faith or assumed expressly the liability of the eviction, because in such cases the purchaser may demand from them the respective compensation in accordance with provisions declared in the Civil Code Articles 1047 and 1048. § Sole Paragraph: If at the time of the auction or before the sale is effected, the owner had protested to seek revindication, necessary record of the protest shall be made; and the purchaser, being evicted, may only claim restitution of the price, save where the creditors or the Judgement debtor have assumed liability towards payment towards compensation.

Article 911 – Precautions in case of protest for revindication - Upon the owner raising the protest referred to in sole paragraph of the previous article, the movable assets shall not be handed over to the purchaser, without the precautions established in number 2 and 3 of article 1423 and proceeds from the sale shall not be paid without security being furnished. But if the protester does not file a suit within 30 days or if the suit is not being prosecuted for 3 months due to negligence of the protester, it is permissible to apply for extinction of the

guarantees meant to secure the restitution of the assets and payment of money. In either case the purchaser, in case the suit succeeds, has a right to retain the thing purchased until he is refunded the price, and the owner may have it from those responsible if he had to repay to obtain the delivery of the thing which is revindicated. § Sole Paragraph: What is provided in this article applies equally, to the extent applicable to the case of the suit being filed without previous protest before the delivery of the movables or of the withdrawal of the proceeds of the sale. SECTION V REMISSION Article 912 – Who has the right of remission - The right to redeem all or part of the assets adjudicated or sold, for the price for which award or sale has been made, is recognized to the spouse who is not separated judicially in persons and assets and to the descendants or ascendants of the judgement debtor by consanguinity. The price shall be deposited at the time of the redemption. Article 913 – Time limit to exercise right of redemption - The right of redemption shall be exercised: a) In the case of award without auction, regulated in article 875, within 3 days from the time fixed in the second part of the same article; b) In the case foreseen in article 876 and in the case of sale by public auction, immediately after the decision which directs delivery of the assets to the awardee, auction holder or pre-emptor, and before signing the respective record; c) In the case of sale in exchange till the time of delivery of the assets; d) In the case regulated in article 887, till the time of delivery of assets or of signature on the title deed or within 10 days from the date in which the redemptor had knowledge of the sale; e) In the case of sale by sealed tenders, till the signature in the record of the transmission and delivery of the assets.

Article 914 – Prevalence of right of remission over right of preference - The right of redemption prevails over the right of pre-emption. However, if there are several pre-emptors and there is a licitation amongst them, the redemption shall have to be done as per the price corresponding to the highest bid. Article 915 – Order in which right of remission devolves - The right of redemption belongs in first place to the spouse, in the second place to the descendants and in the third place to the ascendants of the judgement debtor. When for the purpose of redemption there are several descendants or several ascendants, preference is to those of the nearest degree than those of remote degree. § Sole Paragraph: If the applicant for the redemption is unable to prove of the marriage or the relationship, reasonable time shall be given for the production of the respective documents. SECTION VI EXTINCTION AND ANNULMENT OF THE EXECUTION Article 916 – Right to stop execution by voluntary payment - At any stage of the proceedings the judgement debtor or any other person may put an end to the execution, upon payment of costs and the debt. Whoever wants to make use of such right should apply that the file be sent to the accounts section in order to ascertain the liability of the judgement debtor and thereafter deposit the amount so calculated. Upon the presentation of the application, the execution shall be suspended if the applicant produces the documents to prove the deposit of the amount for which execution proceedings were instituted. Article 917 – Dismissal of execution - If the application was made before any of the creditor filing his claim, the liquidation will be done only of the Decree Holder and quantum of costs; and after hearing the creditor over total quantum, the execution shall be dismissed, as soon as the respective amount is deposited. If there is claim of the creditors, the liquidation and the payment shall include amongst amount claimed those which were admitted by the execution debtor or recognized by the Court.

The notice of the liquidation shall be given to the creditor and to the other creditors interested to complain against any error. § 1: The voluntary payment referred to in this article does not wipe out the auctions or awards already made. § 2: If the payment is done by third party, the latter shall stand subrogated in the rights of the execution creditor showing that he acquired this right in accordance with articles 778 and following of the Civil Code. •See also Article 868 of this Code. Article 918 – Deposit of the debt - If any of the creditors refuse to receive the amount which belongs to him, despite the notice issued to him for the purpose, the said amount shall be deposited at his cost in the establishment where the judicial deposits are made and by order it will be declared that the judgement debtor stands exonerated from the date of the deposit. Article 919 – Other modes of extinction - The execution shall also be declared extinct, after hearing the interested creditors and payment of costs, as soon as by coercive payment the obligation stands satisfied or as soon as the judgement debtor produces in the file the document substantiating the payment, discharge, renunciation on the part of the creditors or any other extinctive document. Article 920 – Renewal of execution when cause of action is continuing - The extinction of the execution when the instrument of debt has continues cause of action, does not prevent that execution be renewed in the same proceedings for the payment of the installments accrued subsequently. •See also article 276 of this Code. Article 921 – Annulment of execution for failure of, or invalid service - If the execution has gone ex-parte against judgement debtor and the latter was not summoned, despite being necessary to be summoned, or there being ground to declare the nullity of the service of summons, the judgement debtor may pray at any time, in the same execution proceeding, that the same be annulled. Once all the steps of execution are suspended, cognizance will be taken of the objection; if the

same is found tenable, the entire proceedings shall be annulled. § Sole Paragraph: The objection may be made even after the execution is declared concluded. However, if after effecting the sale there has been a lapse of time necessary for positive prescription, the judgement debtor is not entitled to seek delivery of the assets, and the only right left to him is to demand from the Decree Holder, in case of fraud or bad faith on his part, the compensation for damages, if the same also is not prescribed. •See also articles 195 and 198 of this Code. SECTION VII APPEALS

Article 922 - Appeal from final judgment - Appeal lies from final judgment which decides

liquidation, objections of execution debtor and which verifies and marshals the credits, when any of them takes cognizance of merits of the case. The appeal does not have the effect of staying the operation of the final judgment when filed against the final judgement passed by the court of Judicial Division, except where the appeal from final judgment passed is from objections of the judgement debtor and the objector has furnished security to stop further prosecution of the execution. § Sole Paragraph: If the liquidation has been done exclusively by way of arbitrament, from the order homologating the report of the experts appeal from order lies. •See also Articles 691, 692 and 809 of this Code. Article 923 – Appeals from Orders - As to the appeals from order following shall be observed: a) In cases of liquidation and claims of the creditors, the appeals from order filed against such orders passed in the course of these two proceedings shall be forwarded at the end with appeal from judgment which decides liquidation or objection on appeal from order, referred to in sole paragraph of previous article; b) In appeals from orders passed in the objections of judgement debtor, provisions of article 734 onwards shall apply; c) The appeal filed from order which allows the challenge to the enforceability of the instrument of debt and the appeal from order passed from the order bringing heirs on record, in accordance with article 56 are forwarded immediately;

d) All other appeals from order shall be forwarded in two distinct stages: those arising from orders passed until conclusion of attachment shall be forwarded together when this stage is concluded; those filed against orders after marshalling the creditors, shall be forwarded jointly when the award, auction, remission of the assets are concluded. § Sole Paragraph: When there is a liquidation or objections from the judgement debtor, along with final judgment shall be forwarded not only the appeals from order referred to in clause a), as well as the appeals from orders filed against previous orders are not among those mentioned in clause (c).