Order 37, rule 4 of Civil Procedure Rules : Summons by a mortgagee, mortgagor and others
Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out as of course an originating summons, returnable before the judge in chambers, for such relief of the nature or kind following as may be by the summons specified, and as the circumstances of the case may require; that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee.
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- Order 37, rule 5 - Caveats
An application under section 116 of the Government Lands (Cap. 280) Act or section 57 of the Registration of Titles Act (Cap. 281) shall be made by originating summons unless there is pending a suit...
- Order 37, rule 6 - Extension of limitation period
(1) An application under section 27 of the Limitation of Actions Act made before filing a suit shall be made ex parte by originating summons supported by affidavit.
(2) Any such application made...
- Order 37, rule 7 - Adverse possession
(1) An application under section 38 of the Limitation of Actions Act shall be made by originating summons.
(2) The summons shall be supported by an affidavit to which a certified extract of the...
- Order 37, rule 8 - Application under the Registered Land Act
An application under the Registered Land Act (Cap. 300) other than under sections 120, 128, 133, 138, 143 and 150 thereof shall be made by originating summons unless there is pending a suit involving...
- Order 37, rule 9 - Application under Chattels Transfer Act
An application under section 9 of the Chattels Transfer Act (Cap. 28) shall be made by originating summons ex parte supported by an affidavit setting out the grounds relied upon.
- Order 37, rule 10 - Summons by a member of a partnership
When the existence of a partnership, or the right to a partnership, or the fact of the dissolution thereof, is not in dispute, any partner in a firm or his representatives may take out an originating...
- Order 37, rule 11 - Summons by persons interested in deeds or wills
Any person claiming to be interested under a deed, will, or other written instrument, may apply in chambers by originating summons for the determination of any question of construction arising under...
- Order 37, rule 12 - Variation of trusts
An application for an order under the Trustee Act shall be made by originating summons returnable before the judge sitting in chambers; and the settler and any other person who provided property for...
- Order 37, rule 13 - Discretion upon summons for construction of document
The judge shall not be bound to determine any such question of construction if, in his opinion, it ought not to be determined on originating summons.
- Order 37, rule 14 - Forms
An originating summons shall be in Form No. 26 or No. 27 of Appendix A with such variations as circumstances may require, and shall be prepared by the applicant or his advocate and shall be filed in...
- Order 37, rule 15 - Summons to be filed and registered
The originating summons when filed shall be filed and entered in the register of suits, but after the serial number the letters “O.S.” shall be placed to distinguish it from plaints filed in ordinary...
- Order 37, rule 16 - Directions
The registrar shall, within thirty days of filing of the Originating Summons and with notice to the parties list it for directions before a judge in chambers.
- Order 37, rule 17 - Procedure
The day and hour of attendance under an originating summons to which an appearance is required to be entered shall after appearance be fixed for hearing in chambers of the judge to whom such summons...
- Order 37, rule 18 - Evidence and directions upon hearing of summons
At the time of directions, if the parties do not agree to the correctness and sufficiency of the facts set forth in the summons and affidavit, the judge may order the summons to be supported by such...
- Order 37, rule 19 - Powers of court upon hearing of summons
(1) Where, on an originating summons under this Order, it appears to the court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause had been begun by...
- Order 37, rule 20 - Court may make orders as to costs incurred by any party
If an originating summons is adjourned into court, the judge may, if he deems the question to be determined is of sufficient importance, order that the costs be taxed on the scale applicable to suits....
- Order 38, rule 1 - Staying several suits against the same defendant
Where two or more persons have instituted suits against the same defendant and such persons under rule 1 of Order I could have been joined as co-plaintiffs in one suit, upon the application of any of...
- Order 38, rule 2 - Staying similar suits upon application by defendant
Where a plaintiff has instituted two or more suits, and under rule 3 of Order 1 the several dependants could properly have been joined as co-defendants in one suit, the court, if satisfied upon the...
- Order 39, rule 1 - Where defendant may be called upon to furnish security for appearance
Where at any stage of a suit, other than a suit of the nature referred to in paragraphs (a) to (d) of section 12 of the Act, the court is satisfied by affidavit or otherwise—
(a) that the defendant...
- Order 39, rule 2 - Security
(1) Where the defendant fails to show such cause the court shall order him either to deposit in court money or other property sufficient to answer the claim against him, or to furnish security for his...
- Order 39, rule 3 - Procedure on application by surety to be discharged
(1) A surety for the appearance of a defendant may at any time apply to the court in which he became a surety to be discharged from his obligation.
(2) On such application being made the court shall...
- Order 39, rule 4 - Procedure where defendant fails to furnish security or find fresh security
Where the defendant fails to comply with any order under rule 2 or rule 3, the court may commit him to prison until the decision of the suit, or, where a decree is passed against the defendant, until...
- Order 39, rule 5 - Where defendant may be called upon to furnish security for production of property
(1) Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him—...
- Order 39, rule 6 - Attachment where cause not shown or security not furnished
(1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the court, the court may order that the property...
- Order 39, rule 7 - Mode of making attachment
Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.
- Order 39, rule 8 - Investigation or claim to property attached before judgment
Where any claim is preferred to property attached before judgment, such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in...
- Order 39, rule 9 - Removal of attachment when security furnished or suit dismissed
Where an order is made for attachment before judgment, the court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of...
- Order 39, rule 10 - Attachment before judgment not to affect rights of strangers nor bar decree holder from applying for sale
Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying...
- Order 39, rule 11 - Property attached before judgment not to be re-attached in execution of decree
Where property is under attachment by virtue of this Order, and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary, upon an application for execution of such decree,...
- Order 40, rule 1 - Cases in which temporary injunction may be granted
Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold...
- Order 40, rule 2 - Injunction to restrain breach of contract or other injury
(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after...
- Order 40, rule 3 - Consequence of breach
(1) In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also...
- Order 40, rule 4 - Notice of application
(1) Where the court is satisfied for reasons to be recorded that the object of granting the injunction would be defeated by the delay, it may hear the application ex parte.
(2) An ex parte...
- Order 40, rule 5 - Ruling of the court
In all applications for injunction, the court shall, after inter-partes hearing deliver its ruling either at once or within thirty days of the conclusion of the hearing with notice to the parties or...
- Order 40, rule 6 - Lapse of injunction
Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any...
- Order 40, rule 7 - Order for injunction may be discharged, varied, or set aside
Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.
- Order 40, rule 8 - Injunction against corporation binding on its officers
An injunction directed to a corporation is binding not only on the corporation itself but also on all members and officers of the corporation whose personal action it seeks to restrain.
- Order 40, rule 9 - Power to order interim sale
The court may, on the application of any party to a suit, order the sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property, being the...
- Order 40, rule 10 - Detention, preservation, inspection of property
(1) The court may, on the application of any party to a suit, and on such terms as it thinks fit—
(a) make an order for the detention, preservation, or inspection of any property which is the...
- Order 40, rule 11 - Deposit of money and other deliverables
Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it...
- Order 41, rule 1 - Appointment of receivers
(1) Where it appears to the court to be just and convenient, the court may by order—
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the...
- Order 41, rule 2 - Remuneration
The court may, by general or special order, fix the amount to be paid as remuneration for the services of the receiver.
- Order 41, rule 3 - Duties
Every receiver so appointed shall—
(a) furnish such security (if any) as the court thinks fit, duly to account for what he shall receive in respect of the property;
(b) submit his accounts at such...
- Order 41, rule 4 - Enforcement of receiver’s duties
Where a receiver—
(a) fails to submit his accounts at such periods and in such form as the court directs; or
(b) fails to pay the amount due from him as the court directs; or (c) occasions loss...
- Order 41, rule 5 - Removal
The court may either on its own motion or on application by any interested party, remove a receiver appointed pursuant to this order on such terms as it thinks fit.
- Order 42, rule 1 - Form of appeal
(1) Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.
(2) The memorandum of appeal shall set forth concisely and under distinct...
- Order 42, rule 2 - Filing of decree or order
Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such...
- Order 42, rule 3 - Amendment of memorandum of appeal
(1) The appellant may amend his memorandum of appeal without leave at any time before the court gives directions under rule 13.
(2) After the time limited by subrule (1) the court may, on...
- Order 42, rule 4 - Grounds which may be taken in appeal
The appellant shall not, except with leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the High Court in deciding the appeal...
- Order 42, rule 5 - One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all
Where there is more than one plaintiffs or defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the...