Chapter IV Part II

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CONTENT

CHAPTER IV Suit by or against and Persons carrying on

Business in names other than their own.

Suit relating to mortgages of immoveable property

Page

4. Orders 30,31,32 and 33. 2

4.1 Orders 30, Suit by or against Firms And persons carrying

on business in names other than their own 2

4.2 Orders 31, Suit by or against oragainst Trustee,

Executors and Administrators 7

4.3 Orders 32, Suit by or against Minor

and Persons of unsound mind 9

4.4 Orders 33, Pauper Suit 28

4.5 Orders 34, Suit relating to mortgages of

immoveable property 39

4.6 Orders 35, Interpleader 56

KEY TERMS 66

ASSIGNMENT QUESTIONS 67

SHORT QUESTIONS



2

4.0 ORDERS 30,31,32 and 33.

၊၊

4.1. Order 30, Suits by or against Firms and Persons carrying on

business in names other their own.

-

* ၊

Rule 1. Suing of partners in name of firm.-

(1) Any two or more persons claiming or being liable as partners

and carrying on business in the Union of Myanmar may sure or be used

in the name of the firm if any of which such persons were partners at the

time of the accruing of the cause of action, and any party to a suit may in

such case apply to the Court for a statement of the names and addresses

of the persons who were, at the time of the accruing of the cause of

action, partners in such firm, to be furnished and verified in such manner

as the Court may direct.1

- ။

* Firms1 . Order 30, rule 1 sub-rule (1) of the Code of Civil Procedure.



3

၌

။ ၎ ။

၌ ၏

။

။

Rule 3. Service-

Where persons are used as partners in the name of their firm, the

summons shall be served either-

- ။

-

(a.) upon any one or more of the partners, or

၊

(b) at the principle place at which the partnership business is carried



4

on within the Union of Myanmar upon any person having, at the time of

service, the control or management of the partnership business there, as

the Court may direct, and such service shall be deemed good service

upon the firm so used, where her all or any of the partners are within of

without the Union of Myanmar.

။

၍

။

Rule 4. Right of suit on death of partner.-

Notwithstanding anything contained in section 45 of the Contract

Act, where two or more persons may use or be used in the name of a firm

under the foregoing provisions and any of such persons dies, whether

before the institution or during the pendency of any suit, it shall be

necessary to join the legal representative of the deceased as a party to the

suit.

- ။ ၌



5

၎

၊

၏ ။

Noting in sub-rule (1) shall limit or otherwise affect any right which

the legal representative of the deceased may have.-

-to apply to be made a party to the suit, or

-to enforce any claim against the survivor or survivors.

Rule 5. Notice in what capacity serviced.-

Where a summons is issued to a firm and is served in the manner

provided by, rule 3, every person upon whom it is served shall be

informed, by notice in writing given at the time of such service, whether

he is served as a partner or as a person having the control or management

of the partnership business, or in both characters and, in default of such

notice, the person served shall be deemed to be served as partner.



6

- ။

။

။

Rule 7. No appearance except by partners.-

Where a summons is served in the manner provided by rule 3 upon

a person having the control or management of the partnership business,

no appearance by him shall be necessary unless he is a partner of the firm

used.

- ၇။

-

။

Rule 10. Suit against person carrying on business in name other than

his own.-

Any person carrying on business in a name or type as if it were a

firm name; and so far as the nature of the case will permit, all rules under

this Order shall apply.



7

- ။

။

၏ ။

4.2 Order 31

Suits by or against Trustees, Executors and Administrators.

၊ ၊ ၊

Rule 1. Representation of beneficiaries in suits concerning property

vested in trustees, etc.

In all suits concerning property vested in a trustee, executor

administrator, where the contention is between the persons beneficially

interested in such property as a third person, the trustee, executor or

administrator shall present the persons so interested, and it shall not

ordinarily be necessary to make them parties to the suit. But the Court

may if it thinks fit, order them or any of them to be made parties.



8

- ။ *၊ ** ၍

*** ၍

၊ ၊

။

။

၊

။

Rule 2. Joiner of trustee executors and administrators.-

Where there are several trustees, executors or administrators, they

shall be made parties to a suit against one or more of them:

- ။ ၍

၊

။

* Trustees**

Executors***

Administrators



9

Provide that the executors who have not proved their testator’s

will, and trustee executors and administrators outside the Union of

Myanmar need not be made parties.

၏

။

Rule 3. Husband of married executive not to join.-

၏

Unless the Court directs otherwise, the husband of a married

trustee, administrative or executives shall not as such be a party to a suit

by or against her.

- ။

၊ ၏

။

4.3 Order 32

Suits by or against Minors and Persons of Unsound Mind.

၊ ၊

Rule 1. Minor to sue by next friend.-



10

Every suit by a minor shall be instituted in his name by a person

who in such suit be called the next friend of the minor.

- ။ * ၏

x ။

Rule 2. Where suits instituted without next friend, plaint to be taken

off the file.-

Where a suit is instituted by or on behalf of a minor without a next

friend, the defendant may apply to have the plaint taken off the file, with

costs to be paid by the pleader or other person by whom it was presented.

- ။ ၊

၊

၊ ၍ **

။

* Minorsx Next friend

** Taken off the file



11

Notice of such application shall be given to such person, and the

Court, after hearing his objections if any, may make such order in the

matter as it thinks fit.

။

။

In Maung San Bwin vs. Maung Nyi and one,2 it has been held that

where a suit is filed by a minor without a next friend, it is the duty of the

Court to take notice of the disregard of the provisions of Rule 1 of Order

32 of the Civil Procedure Code and to refuse to proceed further with the

suit so illegally commenced.

။ 3

။

။

Rule 3. Guardian for the suit to be appointed by Court for minor

defendant.-

2.3 Ran. 239

3 Maung San Bwin Vs. Maung Nyi by his mother and Guardian ad-Litems Ma Pu and J, 3 Ran 239.



12

(1) Where any of the defendants is a minor, the Court, on being

satisfied of the fact of his minority, shall appoint a proper guardian for

the suit for such minor.

- ။

။

(2) For this purpose there shall be filed by the plaintiff with the

plaint a list of all persons whom the plaintiff considers to be capable of

acting as guardian of the minor for the suit. Such list shall be in the form

of an application duty verified and requesting that one of such persons

may be appointed guardian of the minor for the suit, and shall state for

each of such persons whether he is a guardian appointed of declared by

competent authority, or a natural guardian, or the custodian of the minor,

or a stranger, and shall give the address of each of such persons.

၏

၏



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။ ၍

၏ ။

(3) An order for the appointment of a guarding for the suit may

also be obtained upon application in the name and on behalf

of the minor.

၊ ။

(4) An application under sub-rule(2) or sub-rule(3) shall be

supported by an affidavit verifying the fact that the proposed

guarding has no interest in the matter is controversy in the suit

adverse to that of the minor and that he is a fit person also

appointed.

။



14

၊

။

(5)

No order shall be made on any application under this rule

except upon notice to any guardian of the minor appointed or

declared by an authority competent in that behalf or, where

there is no such guardian, upon notice to the father or other

natural guardian of the minor or, where there is no father or

natural guardian, to the person in whose care the minor is, and

after hearing any objection which may be urged on behalf of

any person so served with notice under this sub-rule.

၊ ၏ ၊

၊

၍

။

Rule 4. Who may act as next friend or be appointed guardian for the

suit.-

၏



15

(1) Any person who is of sound mind and has attained majority

may act as next friend of minor or as his guardian for the suit:

- ။ *

** ၊ **

* ။

Provided that the interest of such person is not adverse to that of the

minor and that he is not, in the case of a next friend, a defendant, or in the

case of a guardian for the suit, plaintiff.

၏ ၏

။

၊ ။

(2) Where a minor has a guardian appointed or declared by

competent authority, no person other than such guardian shall

act as next friend of the minor, or be appointed his guardian

for the suit, unless the Court considers, for reasons t be

recorded, that it is for the minor’s welfare that another personbe permitted, to act or be appointed, as the case may be.

* of sound mind**

Next friend***

Guardian



16

။ ၏

၏

။

(3) In the event of there being no such guardian, the natural

guardian of the minor, or it there is no natural guardian, the

person in whose care the minor is should, subject to the

proviso to sub-rule (1), ordinarily be appointed his guardian

for the suit.

(

၏

၎၏

။

(4) No person shall without his consent be appointed guardian for

the suit.

။



17

In the case of J.K. Behara vs. Mrinal Kanti Dutta,4 it has been held

that it is not necessary for a person to act as the next friend of a minor

plaintiff, to obtain any written power or authority from anybody so as to

qualify him to act in that capacity . There is a difference between a

guardian ad litem and a next firend. The guardian ad litem is appointed

by an order of the Court and a next friend automatically constitutes

himself by taking step in the suit. The Court has special inherent power to

protect the interest of minors

5

၍ ၊

။

Rule 6. Receipt by next friend or guardian for the suit of property

under decree for minor.-

4 1949 B. L . R (H. C) 417.5 T.K Behara Vs. Mrimal Kauti Datta. 1949. B.L.R.417. H.C.



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(1) A next friend or guardian for the suit shall not, without the

leave of the Court, received any money or other moveable

property on behalf of a minor either-

- ၆။ ၊

၏ ၍ ၊

(a) by way of compromise before decree or order, or

၍ ၊

(b ) under a decree or order in favour of the minor.

။

Rule 7. Agreement or compromise by next friend or guardian for the

suit,-

(1) No next friend or guardian for the suit shall, without the leave

of the Court, expressly recorded in the proceedings, enter into

any agreement or compromise on behalf of a minor with



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reference to the suit in which he acts as next friend or

guardian.

- ၇။ ၊ ၊ ၏

၊ ။

(2) Any such agreement or compromise entered into without the

leave of the Court so recorded shall be voidable against all

parties other than the minor.

၊

။

Rule 8. Retirement of next friend.-

(1) Unless otherwise ordered by the Court, a next friend shall not

retire without first procuring a fit person to be put in his place

and giving security for the costs already incurred.



20

- ၈။

၍

။

(2) The application for the appointment of a new friend shall be

supported by an affidavit showing the fitness of the person

proposed, and also that he has no interest adverse to that of

the minor.

၊

။

Rule 9. Removal of next friend.-

- ၉။

(1) Where the interest of the next friend of a minor is adverse to

that of the minor or where he is connected with a defendant

whose interest is adverse to that of the minor as to make it

unlikely that the minor’s interest will be property protected

by him, or where he does not do his duty or, during the



21

tendency of the suit , ceases to reside within the Union of

Myanmar , or for any other sufficient cause, application may

be made on behalf of the minor or by a defendant for his

removal; and the Court, if satisfied of the sufficiency of the

cause as signed, may order the next friend to be removed

accordingly, and make such other order as to costs it thinks

fit.

၏

၏

၊

။

။

(2) Where the next friend is not a guardian appointed or declared

by an authority competent in this behalf, and application is



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made by a guardian so appointed or declared, who desires to

be himself appointed in the place of the next friend, the Court

shall remove the next friend unless it considers, for reasons to

be recorded by it that the guardian ought not to be appointed

the next friend of the minor, and shall thereupon appoint the

applicant to be next friend in his place upon such terms as to

the costs already incurred in the suit as it thinks fit.

၍

၍ ၏

၍

၍

၍ ။

Rule 10. Stay of proceedings on removal etc of next friend.-

(1) On the retirement, removal or death of the next friend of

minor, further proceedings shall be stayed until the

appointment of a next friend in his place.



23

- ။ ၏

၊ ၊

။

(2) Where the pleader of such minor omits, within a reasonable

time, to take steps to get a new next friend appointed, any

person interested in the minor or in the matter in issue may

apply to the Court for the the appointment of one, and the

Court may appoint such person as it thinks fit-

၏

၊ ၊

။

။

Rule 11. Retirement, removal or death of guardian for the Suit.-

၊

(1) Where the guardian for the suit desires to retire, or does not

do his duty or where other sufficient ground is made to

appear, the Court may permit such guardian to retire or may



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remove him, and may make such order as to costs, as it think

fit.

- ။ ၏

။

။

။

(2) Where the guardian for the suit retires, dies or is removed by

the Court during the tendency of the suit, the Court shall

appoint a new guardian in his place.

။

Rule 12. Course to be followed by minor plaintiff or applicant

attaining majority.-



25

(1)A minor plaintiff or a minor not a party to a suit on whose behalf an

application is pending shall, on attaining majority, elect whether he will

proceed with the suit or application,

- ။ ၍

၊

။

(2)Where he elects to proceed with the suit or application, he shall

apply for an order discharging the next friend and for leave to proceed in

his own name.

၊

၍

။

Rule 13. Where minor co-plaintiff on attaining majority desires to

repudiate suit-

(1)Where a minor co-plaintiff on a attaining majority desires to repudiate

the suit, shall apply to have his name struck out as co-plaintiff; and the



26

Court, if it finds that he is not a necessary party, shall dismiss him from

the suit on such terms as to costs or otherwise as it thinks fit.

- ။ ၍

။

၊

၍ ၍

။

(2) Notice of the application shall be served on the next friend, on any

co-plaintiff and on the defendant.

။

(3)The costs of all parties of such application, and of all or any

proceedings theretofore had in the suit, shall be paid by such persons

as the Court directs.

။

(4)Where the applicant is a necessary party to the suit, the Court may

direct him to be made a defendant.



27

။

Rule 14. Unreasonable or improper suit.-

(1) A minor on attaining majority may, if a sole plaintiff, apply that

a suit instituted in his name by his next friend be dismissed

on the ground that it was unreasonable or improper.

- ။

*

**

။

(2) Notice of the application shall be served on all the parties

concerned; and the Court, upon being satisfied of such

unreasonableness or impropriety, may grant the application and

order the next friend to pay the case of all parties in respect of

* Unreasonable

** Improper



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the application and of anything done in the suit, or make such

other order as it think fit.

၍

။

4.4 Order 33

Pauper Suits.

Rule 1. Pauper exempted from court-fee.-

Subject to the provisions of the Order, any suit may be instituted

with out payment of the court-fee prescribed by law for the plaint if the

plaintiff is a pauper, that is to say, if his property is not of the value of

Kyats 100, excluding from the computation the subject matter of the suit

and propertied from attachment under section 60.



29

- ။

။

၍

။

Explanation.

(i.) In a mortgage suit the subject-matter shall be estimated at the

amount due on the mortgage;

၏

။

(ii.) any part of the subject-matter of the suit which the opposite

party relinquishes and places at the immediate disposal of the

plaintiff shall be included in the computation of he plaintiffs

property; and

၏

။



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(iii.) where the plaintiff sues in a representative capacity such as

trustee, executor or administrator, or liquidator, the question

of pauperism shall be determined with relation to the property

of the estate which is so represented.

၊ ၊

၎

၍

။

။

။

Rule 2. Application for leave to sue as a pauper.-

(1) A plaintiff may obtain leave to sue as a pauper by presenting

his plaint with a petition sighed and verified in the manner

prescribed for the signing and verification of plaints starting



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။ ၌

၊

။ ။

( i) that the plaintiff is a pauper and that all the property of the plaintiff

consists of the items set out and valued in the schedule to the petition,

( ) ၍

။

(ii) that the plaintiff has not within two months next before the

presentation of the petition disposed of any property fraudulently or in

order to enable him to plead pauperism, and

၊

(iii) that the plaintiff has not entered into any agreement with any person

whereby such person has or will have an interest in the proceeds of the

suit.

)

။



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(2) The plaint and petition shall be presented by the plaintiff in

person unless he is exempted from appearing in Court, in

which event the petition may be presented by an authorized

agent who can answer all questions relating to the application.

။ ၍

။

Rule 3. Preliminary investigation.-

- ။ ။

Subject to the jurisdiction of the Court to allow amendments to be

made, the Court shall reject the petition in any of the following case:-

၍

။

(a.) where the plaint is not in the prescribed;

(b.) where the plaint does not disclose a cause of action within the

jurisdiction of the Court;



33

၏

(c.) where the claim appears to be barred by any law;

(d.) where the applicant has within two months next before

presentation of the petition disposed of any property

fraudulently or in order to be entitled to plead pauperism;

ဃ ၏

၍ ၊

(e.) where the applicant has entered into any agreement with any

person whereby such person has or will have an interest in the

proceeds of the suit.

Rule 4. Hearing of petition.-



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(1) If the petition is not rejected under rule 3 of the Court shall fix

a day of which at least ten days notice shall be given to the

opposite party and the Government pleader for the

examination and cross-examination of the plaintiff or his

agent, where the plaintiff is allowed to appear by and agent

and the witnesses if any produced by either party in proof or

disproof of the statements made in the petition.

- ။ -

၎၏

၏ ၍

၊

၍ ။

(2) Where the plaintiff appears by an agent the Court may, if it

thinks fit, order that the plaintiff be examined on commission.

။



35

(3) The Court shall make a memorandum of the substance of the

evidence taken at the hearing, and shall make an order

allowing or rejecting the petition.

၏

။

(4) Subject to any amendment which the Court may allow, the

petition shall be rejected under this rule if the Court is not

satisfied of the truth of any of the statements made in the

petition; provided that the Court may admit the plaint on

payment of the court-fee due thereon.

၍

။

(5) It the petition rejected the plaintiff shall be precluded from

filling any further petition to sue as a pauper in respect of the

same cause of action: provided that if the petition is rejected



36

for default of appearance or due prosecution it may be revived

on good cause being shown.

၍

၊

။

Rule 5. Pauperism pending suit.-

If, in any suit, an order is made for the payment of an additional

court-fee in respect of the plaint, the plaintiff may apply, by petition, for

leave to continue the suit as a pauper, and the previsions of this Order

shall apply to such petition.

- ။

။ ။

Rule 6. Dispaupering.



37

In a pauper suit the Court may, at any time, on the application of

any party or of the Government pleader on seven day’s notice to the

plaintiff order that the suit be stayed until the court-fee prescribed for the

plaint is paid, on proof that the circumstances existing at the time when

leave was given to the plaintiff to sue as a pauper were such that the leave

ought not to have been given, or that the plaintiff has cased to be a

pauper, or has made an arrangement with any person whereby the latter

has or will have an interest in the proceedings of the suit, or where a new

plaintiff who is not a pauper is substituted or added as a party.

- ၆။ ၌

၊ ၏

၊

၏

( ၇

။



38

ဃ ။

Rule 7. Recovery of court-fees after decree.-

(1) At the conclusion of a pauper suit the Court shall order the

court-fee prescribed for the plaint to be paid to the Collector

by party to the suit or by the parties in ant proportion as may

seem to the Court to be just, and shall cause a copy of the

order to be forwarded to the Collector.

- ၇။ ၊

၊

။

။

ORDERS 34 and 35.



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4.5 Order 34 Suits relating to Mortgages of Immoveable Property.

Rule 1. Parties to suits.-

Subject to the provisions of this Code, in every suit on a mortgage

for foreclosure, sale of redemption.-

- ။

၊ ၊

၌

(a) all persons having an interest in the mortgage security or in the

right of redemption shall be joined as parties: provided that a prior

mortgagee need not be joined as a party to a suit relating to a subsequent

mortgage except on application made by him in that behalf;

၊

။

၎၏

။

- ။

။



40

။ ၍

။ ၏ ။

(b) the plaint shall include a statement of all persons who to the

knowledge of the plaintiff, are interested in the mortgage-security or in

the right of redemption; and

။

(c) the Court may direct that party claiming any preset remedy in respect

of the mortgaged property shall prove his claim, and have such remedy as

may be included in the decree in the suit.

၍

၍

၌

၍ ။

Rule 2. Suit for foreclosure.-

In a suit by a mortgages for foreclosure of a mortgage by

conditional sale or an anomalous mortgage whose terms provide for this



41

remedy, if the plaintiff succeeds the Court shall ascertain the amount due

by the mortgagor to the plaintiff

- ။ 6

၌ ၊ ၌၊

၍

(a) for the redemption of the mortgaged property,

(b) for the costs of the suit (if any) payable by the mortgagor to the

plaintiff, and

(c) for such costs, charges and expenses, if any, and interest thereon as

may be legally recoverable by the plaintiff from the mortgagor in respect

of the mortgage, deducting there from the costs, charges and expenses, if

any, legally recoverable by the mortgagor from the plaintiff in respect of

the mortgage and the costs of the suit (if any) payable by the plaintiff to

the mortgagor;

6 Suit for foreclosure



42

7 ။

8

၆ ။

and the Court shall pass a preliminary decree declaring the amount so

found due and further declaring that the plaintiff shall, subject to the

provisos hereunder stated, be entitled to apply for and obtain a final

decree declaring that the mortgagor and all other parties to the suit who

have a right to redeem the plaintiff’s mortgage, and all persons claiming

through or under them or any of them, shall be debarred from all such

right or redemption, and that the mortgagor shall be freed from all

liabilities in respect of the mortgage of on account of the suit, and giving

such directions as may be necessary to put the plaintiff in possession of

the property:

၊

၍ ။

7 Preliminary decree

8 Final decree



43

၏

၊ ၎ ၊

၊ ၍၊

၊ ၏

။

And, if the Court is of opinion that additional costs over and above

costs on the uncontested scale or any other additional costs have been

incurred through the conduct of any defendant or defendants other than

the mortgagor, the Court may in the preliminary decree make such order

as to the personal payment of such additional costs by such other

defendant or defendants as it shall deem fit:

၏

၊

။

Provided that-



44

(a.) the mortgagor or any other party to the suit who has a right to

redeem the plaintiff’s mortgage may apply f or and obtain a

final decree for redemption on payment into Court of the

amount so declared to be due on or before a date to be fixed by

the preliminary decree (not being more than six months after

the date of such decree) or such later date as the Court may

substitute therefore on good cause shown and upon terms to be

fixed by the Court, and on compliance with all orders of the

Court and on payment of such further sums as the Court may

determine to be payable under rule 7; and

၏

၆ ၌ ၊

၍

၌ ၊ ၊

၏

၍၇

။



45

(b.) in the case of an anomalous mortgage, the Court may, at the

instance of any party to the suit, pass a decree for sale as under

rule 3 in lieu of a decree for foreclosure.

၏

။ ၊

၆ ၍

။

Rule 3. Suit for sale.-

In a suit by a mortgagee for sale for sale of the mortgaged property,

if the plaintiff succeeds the Court shall ascertain the amount due by the

mortgagor to the plaintiff (a) for principal and interest on the mortgage,

(b) for the costs of the suit if any payable by the mortgagor to the

plaintiff, and (c)for such costs, charges, and expenses, if any, and interest

thereon, as may be legally recoverable by the mortgagor from the

plaintiff in respect of the mortgage and the costs of the suit if any payable

by the plaintiff to the mortgagor;

၊



46

၊ ၍

၍

။

and the Court shall pass a preliminary decree declaring the amount

so found due, and further declaring that the plaintiff shall, subject to the

proviso hereunder stated, be entitled to apply for the obtain a final decree

for sale of the mortgaged property or a sufficient part thereof.

၊

၊ ၏

၍

။

(2) In pursuance of a final decree for sale the property shall be

sold as the Court may direct, and the proceeds of the sale

(after deduction there from of the expenses of the sale) shall,

subject to any orders made by the Court as to setting off the a



47

mount due against the purchase money, be paid into Court

and applied in payment of the amount found due as aforesaid

together with such further sum as the Court may determine to

be payable under rule 7.

၌

၏

။

( ၇

။

Provided that, at any time before the confirmation of the sale, the

mortgagor or any other party to the suit who has a right to redeem the

plaintiff’s mortgage may apply for an obtain a final order for redemption,

on payment into Court of the amount found due as aforesaid together

with such further sums as the Court may determine to be payable under

rule 7, and a compensatory amount equal to five percent, of the purchase-

money (if any) paid into Court by the purchaser, which said

compensatory amount shall be paid to the purchaser together with the

said purchase-money on his application.





49

(1) In a suit for redemption of a mortgage, if the plaintiff

succeeds, the Court shall ascertain the amount due by the

plaintiff to the defendant (a) for principal and interest (if any)

due on the mortgage, (b) for the costs of the suit (if any)

payable by the plaintiff to the defendant, and (c) for such

costs, charges and expenses, if any and interest thereon, as

may be legally recoverable by the defendant from the plaintiff

in respect of the mortgage, deducting there from the costs,

charges and expense, if any, legal recoverable by the plaintiff

from the defendant in respect of the mortgage and the costs of

the suit (if any) payable by the defendant to the plaintiff.

- ။

၊

၊

၍

။ ၍

။ ၆



50

။

။

(2) If it appears that nothing is due to the defendant of the

mortgage or that he has been overpaid, the Court shall pass a

final decree for redemption directing further that the

defendant shall pay to the plaintiff the amount (if any)

overpaid with such interest thereon as the Court may deem

reasonable.

၍

၍

။

(3) If the account is in favour of the defendant the Court shall

pass a preliminary decree declaring the amount found due by

the plaintiff to the defendant, and further declaring that, on

payment into Court of the said amount on or before a date to

be fixed by the said decree (not being more than six months

after the date of such decree) or such later date as the Court

may substitute therefore on good cause shown and upon terms



51

to be fixed by the Court may substitute therefore on good

cause shown and upon terms to be fixed by the Court, and on

compliance with all orders of the Court and on payment of

such further sums as the Court may determine to be payable

under rule 7, the plaintiff shall be entitled to apply for and

obtain a final decree directing the defendant to deliver to the

plaintiff, or to such person as the plaintiff appoints in this

behalf, the mortgaged property in the possession of the

defendant and all documents in the possession or power of the

defendant relating to the said property; and to execute and

have registered (as required by the plaintiff and at the cost of

the plaintiff) either (a) an acknowledgment in writing that all

rights created by the mortgage have been extinguished, or ( b

) a retransfer to the plaintiff or to such third person as he may

direct of the property freed from the mortgage and from all

encumbrances created by the defendant or by any person

deriving title from him or, where the defendant claims by

derived title, by those under whom he claims, or ( c )a transfer

of the mortgage to such third person as the plaintiff may

direct.



52

၍

။ ၆

၌ ၊

၍ ၌ ၊

၍၇

၍ ။

၏ ၏ ၊

၎၏

၊

၊ ၊

၊

၊

၊

၎



53

၊

၏ ၏

၍

။

Rule 6. Interest.

- ၆။

In any decree passed in a suit for foreclosure or redemption. where

interest is legally recoverable, the Court may order payment of interest to

the mortgage as follows namely.

၊ ၊

၌

။

(A)interest up to the date on or before which payment of the amount

declared due is under the preliminary decree to be made by the mortgagor

or other person redeeming the mortgage.-

၍

၊



54

(1)on the principle amount declared due on the mortgage at the rate

payable on the principle, or where no such rate is fixed, at such rate as the

Court deems reasonable;

(2) on the amount of the costs of the suit awarded to the mortgagee. at

such rate as the Court deems reasonable from the date of the preliminary

decree; and

၍

(3)on the amount adjudged due to the mortgagee for costs, charges and

expenses properly uncured in respect of the mortgage-security up to the

date of the preliminary decree, at the rate agreed between the parties of

failing such rate, at the same rate as is payable on the principle or, failing

both such rates, at nine percent per annum; and

၍

၊



55

(B) subsequent interest up to the date of realization or actual payment at

such rate as the Court deems reasonable-

(i.) on the aggregate of the principle sums specified in clause

(a) and of the interest thereon, as calculated in accordance

with that clause; and

၊

(ii.) on the amount adjudged due to the mortgagee in respect of

such further costs, charges and expenses as may be payable

under rule.

၇ ၊၊

၍

၊ ၊ ။



56

၍

Rule 7. Adjustment of account.-

- ၇။

In finally adjusting the amount to be paid to a mortgage the Court

shall determine the sum is any payable in respect of costs, charges, and

expenses properly incurred by the mortgagee in respect of the mortgaged

property and interest from the date of the last adjustment.

- ၇။

၍

၍ ။

4.6 Order 35, Interpleader Suits.



57

This Order has to be read with Section 88.

- ၈၈ ၍ ။

Section 88. Where interpleader suit may be instituted.-

Where two or more persons claim adversely to one another the

same debt, sum of money or other property, moveable or immoveable,

from another person who claims no interest therein other than for charges

or costs, and who is ready to pay or deliver it to the rightful claimant,

such other person may institute a suit of interpleader against all the

claimants for the purpose of obtaining a decision as to the person to

whom the payment or delivery shall be made and of obtaining indemnity

for himself;

- ၈၈။ ၊

၊ ။

၍



58

။

provided that where ant suit is pending in which the rights of all

parties can properly be decided no such suit of interpleader shall be

instituted.

။

Rule 1. Plaint in interpleader suits.-

၏

In every suit of interpleader the plaint shall, in addition to other

statements necessary for plaints, state-

- ၊ - ။

။

(a.) that the plaintiff claims no interest in the subject matter in

dispute other than for changes or costs;



59

(b.) the claims made by the defendants severally; and

(c.) that there is no collusion between the plaintiff and any of the

defendants.

။

Rule 2. Payment of thing claimed into Court.-

Where the thing claimed is capable of being paid into Court of

placed in the custody of the Court, the plaintiff may be required so to pay

or place it before he can be entitled to any order in the suit.

- ။

။

Rule 3. Procedure where defendant is suing plaintiff.-



60

Where any of the defendants in an interpleader suit is actually suing

the plaintiff in respect of the subject-matter of such suit, the Court in

which the suit against the plaintiff is pending shall, on being informed by

the Court in which the interpleader suit has been instituted, stay the

proceedings as against him; and his cost in the suit so stayed may be

provided for in such suit; but if, and in so far as, they are not provided for

in that suit, they may be added to his costs incurred in the interpleader

suit.

- ။

၍ ၌

။

။

၌

။

Rule 4. Procedure at first hearing.-

(1) At the first hearing the Court may-

- ။



61

(a.) declare that the plaintiff is discharged from all liability to

the defendants in respect of the thing claimed, award him

his costs and dismiss him from the suit, or

၍

၍

။

(b.) if it thinks that justice or convenience so require, retain all

parties until the final disposal of the suit.

၊

။

(2) Where the Court finds that the admissions of the

parties or other evidence enable it to do so, it may

adjudicate the title to the thing claimed.



62

၊

၊

။

(3) Where the admissions of the parties do not enable

the Court so to adjudicate, it may direct-

-

(a) that an issue or issues between the parties be framed

and tried and

၍

(b)that any claimant be made a plaintiff in lieu of or in

addition to the original plaintiff,and shall proceed to try

the suit in the ordinary manner.



63

။

။

In the case of G.Hari Karmarkar vs, J. A. Robin and two,

9

it was

held that in an interpleader suit, plaintiff must have no interest in the

subject-matter of the suit other than for his charges and costs.

10 ။

Rule 5. Agents and tenants may not institute interpleader suits.-

Nothing in this Order shall be deemed to enable agents to sue their

principals, or tenants to sue their landlords, for the purpose of compelling

them to interplead with any persons other than persons making claim

through such principals or landlords.

- ။ * ၊

၍ ၊

9

.4 Ran, 465.10

G. Hari Karmakar Vs. J. A. Raben 4 Ran 465.* Principal



64

။

Illustrations

(a.) A deposits a box of jewels with B as his agent. C alleges that

the jewels were wrongfully obtained from him by A, and claims

them from B, B cannot institute an interpleader suit against A

and C.

’ ’ ၌

’

’’ ။

’ ’ ’ ။

(b.) A deposits a box of jewels with B as his agent. He than writes

to C for the purpose of making the jewels a security for a debt

due from himself to C. A after wards alleges that C’s debt is

satisfied, and C alleges the contrary. Both claim the jewels from

B. B may institute an interpleader suit against A and C

’ ’ ၌

။ ’

၎ ’’

။ ’’’ ’’



65

’’ ၍’’

။

’ ။’ ’ ’ ။

Rule 6. Charge for plaintiff’s costs.-

Where the suit is property instituted the Court may provide for the

costs of the original plaintiff by giving him a charge on the thing claimed

or in some other effectual way.

- ၆။

၍

၊

။



66

KEY TERMS

Minor Furnish

Survivor ၊

Capacity

Joinder of trustee

Testator’s ၏

next friend

Guardian

Compromise

Removal

co-plaintiff

pauper suits

petition

court-fees

subrogation

interpleader

adversely



67

Assignment Questions

(1)

While a suit is being filed jointly against the two partners, Maung

Ba and Maung Hla, Ma Hla died. Could his heirs be brought into

the suit as defendants? Comment.

(2) Daw Chan Tha is an administrator for the children of U Ba and

Daw Mi’ deceased. When a suit is filed against Daw Chan Tha in

her capacity as an administrator, should her husband, U Lu Aye, be

joined as a defendant in the suit?

(3) A suit was filed by lawyer U Lu Pway for a minor, Maung Nge,

without a next friend against U Ba. What should U Ba do to defend

the case?

(4) What is the distinction between the appointment of next friend of a

minor in a suit for such minor and appointment of guardian adlitem

for the defendant?

(5) Explain the term pauper as defined in the Civil Procedure Code.

(6) Describe the nature of suits brought in connection with mortgage of

immoveable property.

(7) U Mwe mortgaged his house to U Mya for Ks. 30000/- (Kyats

thirty thousand only). Then U Mwe mortgaged the same property to



68

U Hla for Ks. 10000/- (Kyats ten thousand only) . U Mwe did not

pay interest to both mortgagees. U Hla filed a suit against U Mwe

for sale of the mortgaged property. Should U Mya, the frist

mortgagee, be brought into the suit as a party? Answer showing

your reasons.

(8) Explain the meaning of interpleader suit

(9) What material facts should be stated in a plaint for interpleader

suit?

(10) Maung Shwe Yoe, a driver of a motor car, found a jewelled watch

in his car. Passengers Hla Hla and Khin Khin each claimed the

jeweled watch stating that the watch belonged to her. Maung Shwe

Yoe wants to return the jeweled watch to the rightful owner. What

should he do to protect himself from liability when he does not

know who is the real owner of the watch jewelled?



69

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Chapter IV Part II

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