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ORDER XIII.-*INTERIM ATTACHMENT OF PROPERTY.
1. If the Defendant in any Suit for an amount or value of ten In what pounds or upwards, with the intent to obstruct or delay the Cases. execution of any decree that may be passed against him, is about to dispose of his property, or any part thereof, or to remove any such property from the Province in which the Suit is brought, or from the jurisdiction of the Court, the Plaintiff may apply to the Court, either at the time of the institution of the suit, or at any time thereafter until final judgment, to call upon the defendant to furnish sufficient security to fulfil any decree that may be made against him in the Suit, and on his failing to give such security, to direct that any property, moveable or immoveable, belonging to the Defendant shall be attached until the further order of the Court.
2. The application shall contain a specification of the property Application required to be attached, and the estimated value thereof, so far as for Attachthe Plaintiff can reasonably ascertain the same; and the Plaintiff shall, at the time of making the application, declare that to the best of his information and belief the Defendant is about to dispose of or remove his property with such intent as aforesaid.
3. If the Court, after making such investigation as it may Form of consider necessary, shall be satisfied that the Defendant is about to Order. dispose of or remove his property with intent to obstruct or delay the execution of the decree, it shall be lawful for the Court to order the Defendant, within a time to be fixed by the Court, either to furnish security in such sum as may be specified in the Order, to produce and place at the disposal of the Court when required the said property, or the value of the same, or such portion thereof as may be sufficient to fulfil the decree, or to appear and show cause why he should not furnish security. The Court may also, in the warrant, direct the attachment until further order of the whole, or any portion, of the property specified in the application.
show Cause or
4. If the Defendant fail to show such cause, or to furnish the Where Defenrequired security within the time fixed by the Court, the Court dant fails to may direct that the property specified in the application, if not give Security. already attached, or such portion thereof as shall be sufficient to fulfil the decree, shall be attached until further order. If the Defendant show such cause, or furnish the required security, and the property specified in the application, or any portion of it, shall have been attached, the Court shall order the attachment to be withdrawn.
5. The attachment shall not affect the rights of persons not Rights of parties to the Suit, and in the event of any claim being preferred Third Parties to the property attached before judgment, such claim shall be affected. investigated in the manner hereinafter prescribed for the investiga
tion of claims to property attached in execution of a decree.
6. In all cases of attachment before judgment, the Court shall Removal of at any time remove the same, on the Defendant furnishing security Attachment,
See Order XVI.
SCHEDULE II. as above required, together with security for the costs of the
7. The application may be made to any Divisional Court or District Commissioner of the Province or District where the ceedings may Defendant, or in case of urgency where the property proposed to be attached may be, and such Court or Commissioner may make such order as shall seem just. In case an Order for the attachment of property shall be issued by a different Court than that in which the Suit is depending, such Court shall, on the request of either of the parties, transmit the application and evidence therein to the Court in which the Suit is so depending, retaining the property in the meantime under attachment, or taking sufficient security for its value, and the Court in which the Suit is depending shall thereupon examine into and proceed in the application in accordance with the foregoing provisions, in such manner as shall seem just.
ORDER XIV.-*INJUNCTIONS, &c.
1. In any suit in which it shall be shown to the satisfaction of the Court that any property which is in dispute in the Suit is in danger of being wasted, damaged, or alienated by any party to the Suit, it shall be lawful for the Court to issue an injunction to such party, commanding him to refrain from doing the particular act complained of, or to give such other order for the purpose of staying and preventing him from wasting, damaging or alienating the property, as to the Court may seem meet, and in all cases in which it may appear to the Court to be necessary for the preservation, or the better management or custody of any property which is in dispute in a Suit, it shall be lawful for the Court to appoint a Appointment Receiver or Manager of such property, and if need be to remove of Receiver. the person in whose possession or custody the property may be,
from the possession or custody thereof, and to commit the same to the custody of such Receiver or Manager, and to grant to such Receiver or Manager all such powers for the management or the preservation and improvement of the property, and the collection. of the rents and profits thereof, and the application and disposal of such rents and profits as to the Court may seem proper.
2. It shall be lawful for the Court, on the application of any Sale of perish- party to a Suit, to make any order for the sale by any person named in such Order, and in such manner and on such terms as to the Court may seem desirable, of any goods, wares, or merchandize, the right to which is in dispute in the Suit, which may be of a perishable nature, or likely to injure from keeping, or which for any other just and sufficient reason it may be desirable to have sold
inspection of Property in dispute.
3. It shall be lawful for the Court upon the application of any party to a Suit, and upon such terms as may seem just, to make any order for the detention, preservation or inspection of any property being the subject of such Suit, and for all or any of the
* See Order XVI.
purposes aforesaid to authorise any person or persons to enter upon SCHEDULE II. or into any land or building in the possession of any party to such Ords. 14-16. Suit; and for all or any of the purposes aforesaid, to authorise any samples to be taken, or any observations to be made or experiment to be tried which may seem necessary or expedient for the purpose of obtaining full information or evidence.
4. In any Suit for restraining the Defendant from the committal Orders to of any breach of contract or other injury, and whether the same be restrain accompanied by any claim for damages or not, it shall be lawful Contract, or for the Plaintiff at any time after the commencement of the Suit, Torts. and whether before or after judgment, to apply to the Court for an Injunction to restrain the Defendant from the repetition or the continuance of the breach of contract or wrongful act complained of, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right, and such Injunction may be granted by the Court on such terms as to the duration of the Injunction, keeping an account, giving security or otherwise, as to the Court shall seem reasonable and just; provided always, that 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.
5. The Court may in every case, before granting an Injunction Notice of or Order as aforesaid, direct such reasonable notice of the applica- Application. tion for the same to be given to the opposite party as it shall see
ORDER XV.-*DETENTION OF SHIPS.
1. When the extreme urgency or other peculiar circumstances In what Cases. of the case appear to the Court so to require, it shall be lawful for the Court, on the application of any Plaintiff, by warrant under the Seal of the Court, to stop the clearance or to order the arrest and detention by the Sheriff of any Ship about to leave the jurisdiction (other than a Ship enjoying immunity from civil process), and such clearance shall be stopped, or the Ship arrested and detained accordingly provided always, that no such warrant shall be issued at the instance of any Plaintiff unless the application shall be supported by an affidavit of the facts.
2. The Court may at any time release a Ship detained under this Release of Order such terms as it shall deem reasonable.
ORDER XVI.-REPARATION FOR NEEDLESS ARRESTS, &c.
1. The Court upon making any order to hold to bail, or of sale, Court may injunction, or attachment, or any warrant to stop the clearance of, require Security or or to arrest any Ship as aforesaid, may impose such terms and conditions as the Court shall deem just, and in particular it may terms on require the person applying for any such order to enter into such making
See Order XVI.
SCHEDULE II. security as the Court considers requisite for his being answerable Ords. 16-17. in any damages that may accrue through such order or warrant. 2. In any case in which such order or warrant, as aforesaid, shall have been made
Cases in which Com
pensation may be awarded.
No Action of
Damages where Compensation awarded.
If it shall afterwards appear to the Court that the arrest of any Defendant, or any order of attachment, sale or injunction, or any warrant to stop the clearance of, or to arrest any Ship, was applied for on insufficient grounds; or
If the Suit in which any such application was made is dismissed, or judgment is given against the Plaintiff by default or otherwise, and it shall appear to the Court that there was no probable ground for instituting such Suit;
the Court may, on the application of the Defendant made at any time before the expiration of six months from the termination of the Suit, award against the Plaintiff such amount, not exceeding the sum of two hundred pounds, as it may deem a reasonable compensation to the Defendant for any loss, injury, or expense which he may have sustained by reason of such arrest, attachment, order of sale, injunction, or warrant, as aforesaid: provided that the Court shall not award a larger amount of compensation under this Rule than it is competent to such Court to decree in an action for damages.
3. The provisions of the preceding Rules shall not take away any right of action or other right which would otherwise have existed But no action shall be commenced or continued in respect of the same grounds on which the Court may have made an award of compensation.
Sheriff may apply for relief although Parties have not commenced Proceedings. Where Pro
perty claimed under Lien or
III. Incidental Matters.
ORDER XVII.-RELIEF FROM ADVERSE CLAIMS.
1. Where in any Suit the Defendant claims no interest in the money claimed, or other subject-matter thereof, but the right thereto is claimed by or supposed to belong to a third party, and the Defendant is ready to bring into Court, or to pay or dispose of, the subject-matter of the Suit as the Court shall order, it shall be lawful for the Court, on the application of the Defendant, and on being satisfied that there is no collusion between him and such third party, to order such third party to appear before the Court to state the nature of his claim, and to maintain or relinquish the same, and if he maintain it the Court may order him to be made a Defendant in the Suit, in lieu of or in addition to, the original Defendant.
The Sheriff may obtain relief under this Section, if the adverse claimants have given him notice of their claims, though none of them may have commenced proceedings.
2. Where action is brought to recover, or a Defendant in his defence seeks by way of counter-claim to recover, specific property other than land, and the party from whom such recovery is sought does not dispute the title of the party seeking to recover the same,
but claims to retain the property by virtue of a lien, or otherwise, SCHEDULE II. as security for any sum of money, the Court may order that the Ords. 17-18. party claiming to recover the property be at liberty to pay into Court, to abide the event of the action, the amount of money in respect of which the lien or security is claimed, and such further sum (if any) for interest and costs as the Court may direct, and that upon such payment into Court being made, the property claimed be given up to the party claiming it.
EQUITABLE RELIEF: COUNTER-CLAIM.
1. Every Suit implies an offer to do equity in the matter Equitable thereof, and admits of any equitable defence.
2. The Plaintiff may obtain any such equitable relief as the Relief not facts stated and proved entitle him to, though not specifically specifically asked.
asked may be
3. A Defendant in an action may set off, or set up, by way of Countercounter-claim against the claims of the Plaintiff, any right or claim. claim, whether such set-off or counter-claim sound in damages or not, and such set-off or counter-claim shall have the same effect as a statement of claim in a cross action so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the Court may, if in the opinion of the Court such set-off or counter-claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the Defendant to avail himself thereof.
4. (a) No Defendant shall be allowed to set up any such Notice of counter-claim or set-off unless he shall have lodged with the CounterRegistrar, four clear days before the return-day, a notice in Set-off. original, with as many duplicates as there are Plaintiffs in the action, containing his name and address and a concise statement of the nature of such counter-claim or set-off, and shall have paid the same Court and service fees as would be payable if he were claiming by writ of summons: provided that the Court may in its discretion, and upon such terms as may seem just, dispense with such notice.
(b) On receipt of notice of counter-claim or set-off and on payment of the fees, the Registrar shall cause a duplicate of such notice to be served on the Plaintiff, or each of them.
(c) The provisions of Order V. as to particulars of claim shall apply to counter-claim and set-off.
Balance is ia
5. Where in any action a set-off or counter-claim is established Judgment for as a defence against the plaintiff's claim, the Court may, if the Defendant if balance be in favour of the defendant give judgment for the his favour. defendant for such balance or may otherwise adjudge to the defendant such relief as he may be entitled to on the merits of the case. 6. The Court, if it sees fit, may order that a defence of partial Payment into set-off shall be accompanied by payment into Court of the amount Court where partial set-off.