ARRANGEMENT OF SECTIONS
1. Short title.
4. Subordination of courts.
5. Saving of procedure prescribed in other laws.
6. Pecuniary jurisdiction.
JURISDICTION OF COURTS AND RES JUDICATA
7. Jurisdiction of courts.
8. Stay of suit.
9. Res judicata.
10. Bar to further suit.
11. When foreign judgment not conclusive.
12. Presumption as to foreign judgment.
Place of Suing
13. Court in which suits may be instituted.
14. Suits to be instituted where subject matter situate.
15. Suits for immovable property situate within jurisdiction of different courts.
16. Place of institution of suit where local limits of jurisdiction of courts are uncertain.
17. Suits of compensation for wrongs to person or movables.
18. Other suits to be instituted where defendant resides or cause of action arises.
19. Objections to jurisdiction.
20. Power to transfer suits which may be instituted in more than one court.
21. General power of transfer and withdrawal.
Institution of Suits
22. Institution of suits.
Summons and Discovery
23. Summons to defendant.
24. Service of summons where defendant resides outside jurisdiction of court.
25. Power to order discovery and the like.
26. Summons to witness.
27. Penalty for default.
Judgment and Decree
28. Judgment and decree.
29. Interest on judgment debts.
31. Application to orders.
32. Definition of "court which passed a decree".
Courts by which Decrees may be Executed
33. Courts by which decrees may be executed.
34. Transfer of decree.
35. Result of execution proceedings to be certified.
36. Powers of court in executing transferred decree.
Questions to be Determined by Court Executing Decree
38. Question to be determined by the court executing decree.
Limit of Time for Execution
39. Execution barred in certain cases.
Transferees and Legal Representatives
41. Legal representative.
Procedure in Execution
42. Powers of court to enforce execution.
43. Enforcement of decree against legal representative.
Arrest and Detention
44. Arrest and detention.
45. Subsistence allowance.
46. Detention and release.
47. Release on grounds of illness.
48. Property liable to attachment and sale in execution of decree.
49. Seizure of property in dwelling house.
50. Property attached in execution of decrees of several courts.
51. Private alienation of property after attachment to be void.
52. Purchaser's title.
53. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff.
Distribution of Assets
54. Proceeds of execution sale to be rateably distributed among decree-holders.
Resistance to Execution
55. Resistance to execution.
56. Power of court to issue commissions.
57. Commission to another court.
58. Letter of request.
59. Commissions issued by foreign courts.
SUITS IN PARTICULAR CASES
Suits against Public Officers
60. Exemption from arrest and personal appearance of public officers.
Suits by Aliens and Foreign States
61. When aliens may sue.
62. When foreign State may sue.
63. Where interpleader suit may be instituted.
65. Power to state case for opinion of court.
Suits relating to Public Matters
66. Public nuisance.
67. Public charities.
68. Supplemental proceedings.
69. Compensation for obtaining arrest, attachment or injunction on insufficient grounds.
Appeals from Decrees
70. Appeal from original decree.
71. Appeal from final decree where no appeal from preliminary decree.
72. Decision where appeal heard by two or more judges.
73. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.
Appeals from Orders
74. Orders from which appeals lie.
75. Other orders.
General Provisions relating to Appeals
76. Powers of the High Court on appeal.
REFERENCE, REVIEW AND REVISION
77. Reference to High Court.
80. Application of rules in First and Second Schedules.
81. Powers of Chief Justice to make rules.
82. Matters for which rules may provide.
83. Courts to respect privacy of women enjoined by religion or custom.
84. Arrest other than in execution of decree.
85. Exemption from arrest under civil process.
86. Procedure where person to be arrested or property to be attached is outside jurisdiction.
87. Assessors in causes of salvage, etc.
88. Orders and notices to be in writing.
89. Application for restitution.
90. Enforcement of liability of surety.
91. Proceedings by or against representatives.
92. Consent or agreement by persons under disability.
93. Enlargement of time.
94. Transfer of business.
95. Saving of inherent powers or court.
96. Amendments of judgments, decrees or orders.
97. General power to amend.
REPEAL AND TRANSITIONAL PROVISIONS
THE CIVIL PROCEDURE RULES
ORDER I: PARTIES TO SUITS
(a) Joinder of Parties
(b) Third Party Procedure
ORDER II: FRAME OF SUIT
ORDER III: RECOGNISED AGENTS AND ADVOCATES
ORDER IV: INSTITUTION OF SUITS
ORDER V: ISSUE AND SERVICE OF SUMMONS
Issue of Summons
Service of Summons
ORDER VI: PLEADING GENERALLY
ORDER VII: PLAINT
Documents Relied on in Plaint
List of other documents.
ORDER VIII: WRITTEN STATEMENT, SET-OFF AND COUNTERCLAIM
ORDER VIIIA: FIRST PRE-TRIAL SETTLEMENT AND SCHEDULING CONFERENCE
ORDER VIIIB: FINAL PRE-TRIAL SETTLEMENT AND SCHEDULING CONFERENCE
ORDER VIIIC: ARBITRATION, NEGOTIATIONS AND MEDIATION PROCEDURE
ORDER IX: APPEARANCE OF PARTIES AND CONSEQUENCES OF NON-APPEARANCE
Setting Aside Decrees Ex Parte
ORDER X: EXAMINATION OF PARTIES BY THE COURT
ORDER XI: DISCOVERY AND INSPECTION
ORDER XII: ADMISSIONS
ORDER XIII: PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS
ORDER XIV: SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON
ORDER XV: DISPOSAL OF THE SUIT AT FIRST HEARING
ORDER XVI: SUMMONING AND ATTENDANCE OF WITNESSES
ORDER XVII: ADJOURNMENTS
ORDER XVIII: HEARING OF SUIT AND EXAMINATION OF WITNESSES
ORDER XIX: AFFIDAVITS
ORDER XX: JUDGMENT AND DECREE
ORDER XXI: EXECUTION OF DECREES AND ORDERS
Payment under Decree
Courts Executing Decrees
Application for Execution
Notice before Execution
Process for Execution
Stay of Execution
Mode of Execution
Arrest and Detention in Prison
Attachment of Property
Investigation of Claims and Objections
Sale of Movable Property
Sale of Immovable Property
Resistance to Delivery of Possession to Decree-Holder or Purchaser
ORDER XXII: DEATH, MARRIAGE AND INSOLVENCY OF PARTIES
ORDER XXIII: WITHDRAWAL AND ADJUSTMENT OF SUITS
ORDER XXIV: PAYMENT INTO COURT
ORDER XXV: SECURITY FOR COSTS
ORDER XXVI: COMMISSIONS
Commissions to Examine Witnesses
Commissions for Local Investigations
Commissions to Examine Accounts
Commissions to Make Partitions
ORDER XXVII: SUITS BY OR AGAINST MILITARY PERSONNEL
ORDER XXVIII: SUITS BY OR AGAINST CORPORATIONS
ORDER XXIX: SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN
ORDER XXX: SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS
ORDER XXXI: SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND
ORDER XXXII: SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY
ORDER XXXIII: INTERPLEADER
ORDER XXXIV: SPECIAL CASE
ORDER XXXV: SUMMARY PROCEDURE
ORDER XXXVI: ARREST AND ATTACHMENT BEFORE JUDGMENT
Arrest before Judgment
Attachment before Judgment
ORDER XXXVII: TEMPORARY INJUNCTIONS, DECLARATORY ORDERS AND INTERLOCUTORY ORDERS
ORDER XXXVIII: APPOINTMENT OF RECEIVERS
ORDER XXXIX: APPEALS FROM ORIGINAL DECREES
Stay of Proceedings and of Execution
Procedure on Admission of Appeal
Procedure on Hearing
Judgment in Appeal
Decree in Appeal
ORDER XL: APPEALS FROM ORDERS
ORDER XLI: REFERENCE
ORDER XLII: REVIEW
ORDER XLIII: MISCELLANEOUS PROVISIONS
THE CIVIL PROCEDURE (ARBITRATION) RULES
ARBITRATION IN SUITS
ORDER OF REFERENCE ON AGREEMENTS TO REFER TO ARBITRATION
ARBITRATION WITHOUT THE INTERVENTION OF A COURT
THE CIVIL PROCEDURE CODE
An Act to provide for the procedure and related matters in civil proceedings.
[1st January, 1967]
[G.N. No. 410 of 1966]
49 of 1966
11 of 1976
375 of 1966
363 of 1968
376 of 1968
79 of 1970
228 of 1971
23 of 1984
509 of 1991
422 of 1994
140 of 1999
PRELIMINARY PROVISIONS (ss 1-6)
This Act may be cited as the Civil Procedure Code.
Subject to the express provisions of any written law, the provisions of this Code shall apply to all proceedings in the High Court of the United Republic, courts of resident magistrates and district courts.
In this Code, unless the context requires otherwise–
"advocate" has the meaning ascribed to it in the Advocates Act *;
"court", except in the expression "foreign court", means the High Court of the United Republic, a court of a resident magistrate or a district court presided over by a civil magistrate and references to a district court are references to a district court presided over by a civil magistrate;
"decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary of final and it shall be deemed to include the rejection of a plaint and the determination of any question within section 38 or section 89, but shall not include–
(a) an adjudication from which an appeal lies as an appeal from an order; or
(b) any order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;
"decree-holder" means any person in whose favour a decree has been passed or an order capable of execution has been made;
"foreign court" means a court situated beyond the limits of Tanzania which has no authority in Tanzania;
"foreign judgment" means the judgment of a foreign court;
"High Court" means the High Court of the United Republic;
"judgment" means the statement given by a judge or a magistrate of the grounds for a decree or order;
"judgment debtor" means any person against whom a decree has been passed or an order capable of execution has been made;
"legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sue or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued;
"mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might, with ordinary diligence, have received therefrom together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;
"movable property" includes growing crops;
"order" means the formal expression of any decision of a civil court which is not a decree;
"rules" means the rules contained in the First and Second Schedules or made under sections 29, 45 or 82;
"share in a corporation" shall be deemed to include stock, debenture stock, debentures, or bonds; and
"signed", save in the case of a judgment or decree, includes stamped.
For the purposes of this Code, every court of a resident magistrate and every district court is subordinate to the High Court, and every district court is subordinate to the court of the resident magistrate within the area of whose jurisdiction it is situate.
In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special form of procedure prescribed by or under any other law for the time being in force.
Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.
JURISDICTION OF COURTS AND RES JUDICATA (ss 7-30)
(1) Subject to this Act the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
(2) No suit shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and a court may make binding declarations of right whether or not any consequential relief is or could be claimed.
No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in Tanzania having jurisdiction to grant the relief claimed.
Explanation: The pendency of a suit in a foreign court does not preclude the courts in Tanzania from trying a suit founded on the same cause of action.
No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.
Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II: For the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court.
Explanation III: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV: Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V: Any relief claimed in the plaint which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation VI: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any court to which this Code applies.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except–
(a) where it has not been pronounced by a court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of Tanzania in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in Tanzania.
The court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.
Place of Suing (ss 13-21)
Every suit shall be instituted in the court of the lowest grade competent to try it and, for the purposes of this section, a court of a resident magistrate and a district court shall be deemed to be courts of the same grade.
Subject to the pecuniary or other limitations prescribed by any law, suits–
(a) for the recovery of immovable property with or without rent or profits;
(b) for the partition of immovable property;
(c) for foreclosure, sale or redemption in the case of a mortgage of or a charge upon immovable property;
(d) for the determination of any other right to, or interest in, immovable property;
(e) for compensation for a wrong to immovable property; or
(f) for the recovery of movable property actually under distraint or attachment,
shall be instituted in the court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business or personally works for gain.
Explanation: In this section "property" means property situated in Tanzania.
Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate if, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such court.
(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more courts any immovable property is situate, any one of those courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction:
Provided that the suit is one with respect to which the court is competent as regards the nature and value of the suit to exercise jurisdiction.
(2) Where a statement has not been recorded under subsection (1), and an objection is taken before an appellate or revisional court that a decree or order in a suit relating to such property was made by a court not having jurisdiction where the property is situate, the appellate or revisional court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the court having jurisdiction with respect thereto and there has been a consequent failure of justice.
Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts.
Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction–
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain;
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or part, arises.
Explanation I: Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect any cause of action arising at the place where he has such temporary residence.
Explanation II: A corporation shall be deemed to carry on business at its sole or principal office in Tanzania, or, in respect of any cause of action arising at any place where it is has also a subordinate office, at such place.
No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
Where a suit may be instituted in any one of two or more district courts within the area of the jurisdiction of a court of a resident magistrate, and is instituted in one of such courts, not being the court of the resident magistrate–
(a) if before any evidence has been taken all the parties to the suit consent to the suit being transferred to the court of such resident magistrate, the court in which the suit has been instituted shall record the fact of such consent and shall transmit the record to such resident magistrate who shall in due course try the suit;
(b) on the application to such resident magistrate of a party to the suit and after notice to the parties and after consideration of objections (if any) of any party such resident magistrate may, at any stage before any evidence has been taken in the suit, transfer the suit for trial by himself; or
(c) of his own motion, such resident magistrate may, at any stage before evidence has been taken in the suit, transfer the suit for trial by himself:
Provided that the exercise of the powers conferred by paragraph (b) or (c) hereof shall be subject to such limitations or conditions, if any, as the Chief Justice shall impose by rules of court and provided further that this section shall not affect the powers of the High Court under section 21.
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage–
(a) transfer any suit or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(b) withdraw any suit or other proceeding pending in any court subordinate to it, and–
(i) try or dispose of the same;
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under subsection (1), the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn.
(3) The powers of transfer and withdrawal of suits conferred by this section and section 20 shall be in addition to and not in substitution for the powers contained in Part V of the Magistrates' Courts Act *.
Institution of Suits (s 22)
Every suit shall be instituted by the presentation of a plaint or in such other manner as any be prescribed.
Summons and Discovery (ss 23-27)
Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed.
(1) A summons may be sent for service to another court in Tanzania within the local limits of whose jurisdiction the defendant may be believed to be residing.
(2) The court to which such summons is sent shall, upon receipt thereof, proceed as if it has been issued by such court and shall then return the summons to the court of issue together with the record (if any) of its proceedings with regard thereto.
Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on application of any party–
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
(b) issue summonses to person whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; or
(c) order any fact to be proved by affidavit.
The provisions of sections 23 and 24 shall apply to summonses to give evidence or to produce documents or other material objects.
The court may compel the attendance of any person to whom a summons has been issued under section 25 and for that purpose may–
(a) issue a warrant for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him not exceeding one thousand shillings; or
(d) order him to furnish security for his appearance and in default commit him as a civil prisoner.
Judgment and Decree (s 28)
The court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.
Interest (s 29)
The Chief Justice may makes rules prescribing the rate of interest which shall be carried by judgment debts and, without prejudice to the power of the court to order interest to be paid upon to date of judgment at such rates as it may deem reasonable, every judgment debt shall carry interest at the rate prescribed from the date of the delivery of the judgment until the same shall be satisfied.
Costs (s 30)
(1) Subject to such conditions and limitations as may be prescribed and to the provisions of any law from the time being in force, the costs of, and incidental to, all suits shall be in the discretion of the court and the court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.
(2) Where the court directs that any costs shall not follow the event, the court shall state its reasons in writing.
(3) The court may give interest on costs at any rate not exceeding seven percent per annum and such interest shall be added to the costs and shall be recoverable as such.
EXECUTION (ss 31-55)
General (ss 31-32)
The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.
The expression "court which passed a decree" or words to that effect shall, in relation to the execution of decrees, unless there is any thing repugnant in the subject or context, be deemed to include–
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance; and
(b) where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.
Courts by which Decrees may be Executed (ss 33-37)
A decree may be executed either by the court which passed it or by the court to which it is sent for execution.
(1) The court which passed a decree may, on the application of the decree-holder, send it for execution to another court–
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business or personally works for gain, within the local limits of the jurisdiction of such other court;
(b) if such person has no property within the local limits of the jurisdiction of the court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other court;
(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the court which passed it; or
(d) if the court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other court.
(2) The court which passed a decree may of its own motion send it for execution to any subordinate court of competent jurisdiction.
The court to which a decree is sent for execution shall certify to the court which passed it the fact of such execution or, where the former court fails to execute the same, the circumstances attending such failure.
The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself; and all persons disobeying or obstructing the execution of the decree shall be punishable by such court in the same manner as if it had passed the decree and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.
(1) Upon the application of the decree-holder the court which passed the decree may, whenever it thinks fit, issue a precept to any other court which would be competent to execute such decree to attach any property belonging to the judgment debtor and specified in the precept.
(2) The court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:
Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the court which passed the decree or unless, before the determination of such attachment, the decree has been transferred to the court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.
Questions to be determined by Court Executing Decree (s 38)
(1) All questions arising between the parties to the suit in which the decree was passed, or their representative, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.
(2) The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding any may, if necessary, order payment of any additional court fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court.
Limit of Time for Execution (s 39)
(1) Where an application to execute a decree, not being a decree granting an injunction, has been made no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from–
(a) the date of the decree sought to be executed; or
(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.
(2) Nothing in this section shall be deemed–
(a) to preclude the court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years where the judgment debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or
(b) to limit or otherwise affect the operation of article 183 of the First Schedule to the Indian Limitation Act, as applied to Tanzania.
Transferee and Legal Representatives (ss 40-41)
Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment debtor might have enforced against the original decree-holder.
(1) Where a judgment debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and for the purpose of ascertaining such liability, the court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.
Procedure in Execution (ss 42-43)
Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder,order execution of the decree–
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property;
(c) by arrest and detention in prison;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require.
(1) Where a decree is passed against a party as the legal representative of a deceased person and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.
(2) Where no such property remains in the possession of the judgment debtor and he fails to satisfy the court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment debtor to the extent of the property in respect of which he has failed so to satisfy the court in the same manner as if the decree had been against him personally.
Arrest and Detention (ss 44-47)
(1) A judgment debtor may be arrested in execution of a decree at any hour and on any day and shall, as soon as practicable, be brought before the court, and the court may order his detention:
Provided that, for the purposes of making an arrest under this section–
(a) no dwelling-house shall be entered after sunset and before sunrise;
(b) no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment debtor and he refuses or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment debtor is to be found; or
(c) if the room is in the actual occupancy of a woman who is not the judgment debtor and who, according to her religion or local custom, does not appear in public, the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest:
And provided further that where the decree in execution of which a judgment debtor is arrested is a decree for the payment of money, and the judgment debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.
(2) Where a judgment debtor is arrested in execution of a decree for the payment of money and brought before the court, the court shall inform him that he may apply to be declared an insolvent, and that he will be discharged if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force.
(3) Where a judgment debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the court, that he will within one month so apply and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the court shall release him from arrest and, if he fails so to apply and to appear, the court may either direct the security to be realised or commit him as a civil prisoner in execution of the decree.
The Chief Justice may make rules prescribing scales of monthly allowances payable for the subsistence of judgment-debtors.
(1) Every person detained as a civil prisoner in execution of a decree shall be so detained–
(a) where the decree is for the payment of a sum of money exceeding one hundred shillings, for a period of six months; and
(b) in any other case, for a period of six weeks:
Provided that he shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be–
(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the prison;
(ii) on the decree against him being otherwise fully satisfied;
(iii) on the request of the person on whose application he has been so detained; or
(iv) on the omission by the person on whose application he has been so detained to pay subsistence allowance:
Provided further that he shall not be released from such detention under clause (ii) or clause (iii) without the order of the court.
(2) A judgment debtor released from detention under this section shall not, merely by reason of his release, be discharged from his debt.
(3) Where a judgment debtor has been released from detention under this section before the expiration of the period of six months or six weeks, as the case may be, for which he was ordered to be detained, and the decree against him has not been fully satisfied he shall, if he was released on the request of the person on whose application he was detained but not otherwise, be liable to be re-arrested under the decree in execution of which he was detained.
(4) A judgment debtor who has been re-arrested under the provisions of subsection (3) of this section shall be detained as a civil prisoner for the remainder of the period of six months or six weeks, as the case may be, for which he would have been detained under the provisions of subsection (1) of this section if he had not been released from such detention under the proviso to that subsection:
Provided that he shall be released from such detention before the expiration of the remainder of the said period of six months or six weeks, as the case may be, in any of the circumstances specified in the first proviso to subsection (1) of this section.
(1) At any time after a warrant for the arrest of a judgment debtor has been issued, the court may cancel it on the ground of his serious illness.
(2) Where a judgment debtor has been arrested, the court may release him if in its opinion he is not in a fit state of health to be detained as a civil prisoner.
(3) Where a judgment debtor has been committed as a civil prisoner, he may be released–
(a) by the officer in charge of the prison in which he is confined, on the ground of the existence of any infectious or contagious disease; or
(b) by the committing court, or any court to which that court is subordinate, on the ground of his suffering from any serious illness.
(4) A judgment debtor released under this section may be re-arrested but the period of his detention as a civil prisoner shall not in the aggregate exceed that prescribed by section 46.
Attachment (ss 48-51)
(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, banknotes, cheque, bills of exchange, promissory notes, Government securities, bonds or other securities for money debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment debtor or by another person in trust for him or on his behalf:
Provided that the following shall not be liable to such attachment or sale, namely–
(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;
(b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the court, be necessary to enable him to earn his livelihood as such;
(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him;
(d) any land used for agricultural purposes by a village, an Ujamaa Village, a co-operative society, or an individual whose livelihood is wholly dependent upon the use of such land;
(e) any residential house or building, or part of a house or building occupied by the judgment debtor, his wife and dependant children for residential purposes;
(f) books of account;
(g) a mere right to sue for damages;
(h) the salary of an employee to the extent of–
(i) the whole of the salary where it does not exceed one hundred and fifty shillings monthly;
(ii) one hundred and fifty shillings monthly where the salary exceeds one hundred and fifty shillings and does not exceed two hundred and fifty shillings and does not exceed two hundred and twenty-five shillings monthly; or
(iii) two-thirds of the salary in any other case;
(i) the expense allowances of any employees;
(j) an expectancy of succession by survivorship or other merely contingent or possible right or interest;
(k) a right to future maintenance; or
(l) any other property declared by any written law not be liable to attachment.
Explanation: The particulars mentioned in classes (f) and (g) are exempt from attachment whether before or after they are actually payable.
(2) Subject to the provisions of any written law, nothing in this section shall be deemed to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land.
(3) For the purposes of this section–
"expense allowance" means any sum paid to an employee by an employer which is a bona fide payment to meet an expense incurred or to be incurred by the employee wholly and exclusively in or for the purposes of the performance of the duties of his office or employment or in discharging functions authorised by the employer; and
"salary" includes any sum of money granted to an employee by an employer other than an expense allowance.
(1) No person executing any process under this Code directing or authorising seizure of movable property shall enter any dwelling-house after sunset and before sunrise.
(2) No outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment debtor and he refuses or in any way prevents access thereto, but when the person executing any such process had duly gained access to any dwelling-house he may break open the door of any room in which he has reason to believe any such property to be.
(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to her religion or local custom, does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose of seizing the property, using at the same time every precaution consistent with these provisions, to prevent its clandestine removal.
(1) Where property not in the custody of any court is under attachment in execution of decrees of more courts than one, the court which shall receive or realise such property and shall determine any claim thereto and any objection to the attachment thereof shall be the court of the highest grade, or, where there is no difference in grade between such courts, the court under whose decree the property was first attached.
(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a court executing one of such decrees.
Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.
Explanation: For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets.
Sale (ss 52-53)
Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.
(1) No suit shall be maintained against any person claiming title under a purchase certified by the court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or behalf of someone through whom the plaintiff claims.
(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third persons against the real owner.
Distribution of Assets (s 54)
(1) Where assets are held by a court and more persons than one have, before the receipt of such assets, made application to the court for the execution of decrees for the payment of money passed against the same judgment debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons:
(a) where any property is sold subject to a mortgage or charge, the mortgagee or incumbrancer shall not be entitled to share in any surplus arising from such sale;
(b) where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the court may with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold;
(c) where any immovable property is sold in execution of a decree ordering its sale for the discharge of an incumbrance thereon, the proceeds of sale shall be applied–
(i) in defraying the expenses of the sale;
(ii) in discharging the amount due under the decree;
(iii) in discharging the interest and principal moneys due on subsequent incumbrance (if any); and,
(iv) rateably among the holders of decrees for the payment of money against the judgment debtor who have, prior to the sale of the property, applied to the court which passed the decree ordering such sale for execution of such decrees and have not obtained satisfaction thereof.
(2) Where all or any of the assets liable to be rateably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.
(3) Nothing in this section affects any right of the Government.
Resistance to Execution (s 55)
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