Preamble

SECTION I PROCEDURAL ACTS IN GENERAL SUB-SECTION I COMMON PROVISIONS Article 138 – Bar on unnecessary acts and mode thereof - It is not lawful to take futile steps in the proceedings. The form of these steps, when not expressly regulated in the law, shall be adapted to suit the purpose in view and shall be limited to whatever is indispensable to achieve such purpose. § Sole Paragraph: The staff of the court who infringes what is provided in this article shall incur disciplinary liability. Article 139 – Court language - In the judicial acts, always the Portuguese language shall be used. But when the foreigners are to be heard, they may express themselves in a different language if they do not know the Portuguese language, it being required to appoint for them an interpreter, when necessary, in order that they may depose on solemn affirmation The intervention of the interpreter shall be confined to what is strictly necessary. Article 140 – Translation of documents written in foreign languages - When the documents written in foreign language are produced without translation made by the notary, the judge may order, ex-officio or upon the application of the opposite party, that the witness produces a

translation authenticated by the diplomatic or consular official of the respective State, except where the court has an official translator. In the absence of the diplomatic or consular official of the respective State, the documents shall be translated by the expert appointed by the court. Article 141 – Means of expression and communication of deaf and dumb - Whenever a deaf, dumb or one deaf and dumb person is to be heard, the word shall be substituted by writing to the extent necessary and possible. In the last case, there shall be intervention of an interpreter, who on oath shall transmit, by signals, the questions or the replies or some and others. Article 142 – Law regulating procedural acts - The procedural acts are regulated by the law which is in force at the time when they are done. Article 143 – When judicial acts may not be performed - Judicial acts cannot be performed on Sundays, holidays or during the vacations. From the above, are excluded, service of summonses, service of notices, holding of auctions, and the acts which are meant to avoid irreparable loss. § Sole Paragraph: When the date fixed for sittings or judicial acts falls on holidays, the same shall be carried out on the first working day following the holiday. Estatuto Judiciario (Judicial Statute), Art 48. Article 144 – Time limits for judicial acts - The period of time for a judicial act is laid down by law or by order of the judge. Article 145 – Continuity of time - The period of time for judicial act is continuous. It starts running irrespective of any notice or any other formality and runs continuously even during vacations, Sundays and holidays, save for special provisions of this Code. Article 146 – Dilatory or peremptory time limit – Just cause - The period of time is dilatory or peremptory. The lapse of peremptory period of time extinguishes the right to do the respective act, except where the party was prevented from doing the same for just cause.

§ 1: If the peremptory period of limitation expires during vacation or Sunday or any holiday and it is not possible to perform the act by its nature, the time stands extended to the first working day that follows. § 2: The party who pleads just cause shall immediately produce the proof. The judge, after hearing the opposite side, shall allow the applicant to do the act beyond the period of limitation if the judge is satisfied that the party was prevented by just cause, and further is satisfied that the party approached the court as soon as the cause ceased. Only an unforeseen event, alien to the will of the party, which makes it impossible for the party to do the act by himself or through the lawyer, shall be considered as just cause. Note : Dilatory is the period which may be extended by the court considering the circumstances of the case. Article 147 – Time for Judicial acts cannot be extended - The time for judicial acts cannot be extended except in cases specified by law. Article 148 – Counting of period - For the purpose of counting the period for judgment, the day on which it commences, even if there are hours left, is not to be counted, but the day on which it ends, is to be considered. § 1: When the peremptory period of limitation is followed by dilatory period, both the periods are to be considered as one for the purpose of the present article. § 2: The period of a month is always thirty days. The period of a year ends on the same day and month of the following year. Article 149 – Where judicial acts are to be practiced - The judicial acts are to take place at the site in which they can be more efficacious; however, they may take place at other places for reasons of deference or for sufficient cause. When no reason is given for performance of the acts at other places, the acts are performed in the court. Article 599, 629 etc. of this Code.

SUB-SECTION II ACTS OF PARTIES Article 150 – Who can apply - Applications may be written and signed by the parties, except when law requires signature of the advocate or of the legal advisors. If the parties are not known to the court, the court may demand production of identity card or, if that is not available, the identification of the signature by notary.

Article 151 – Definition of pleadings - Pleadings are the briefs in which the parties state,

whether by numbered paragraphs or not, the grounds of their case or defence and seek reliefs corresponding to the same. § Sole Paragraph: Pleading by numbered paragraphs is mandatory when the law expressly so provides. Article 152 – Need for duplicate copies - The pleadings shall be presented in the court office in duplicate without which they will not be received. When the pleading relates to more than one person, as many copies are to be supplied, as there are defendants living separate, except where all are represented by one advocate. § Sole Paragraph: Besides, where the copies which are to be handed over to the opposite party, the parties shall supply one more copy, without being on stamp paper, for the record of the court, and to be used in the event of reconstruction of the file in case it is misplaced. Article 153 – Purpose of arguments - In the arguments, oral or written, the parties are to support their stand in the case. Article 154 – General rule as to judicial time limit - In the absence of special provision, a period of five days is prescribed for the parties to move the court for any act to be done or step to be taken, plead nullities, apply for incidental proceedings, and take, in short, any procedural step; and also a period of five days is prescribed for the opposite party to give the answer to any such application. This is a very important provision when no time is fixed for the parties to exercise any procedural rights or to reply to anything raised by the other side, recourse to this article is taken; the time is of 5 days.

Article 155 - Misdemeanour by advocates or law officers - The advocates and legal practitioners who, in writing or orally, show disrespect to the prevailing norms, to the laws or the court, shall be warned courteously by the Presiding Officer, who besides this may direct that any offensive expressions be expunged and prevent the right of being heard, without prejudice to the criminal prosecution. Where the advocate does not obey the decision which prevents the right of being heard, the president is empowered to expel him from the court hall or any other place where the judicial act is taking place. When right of audience is withdrawn and in the case of expulsion, notice is given to the Bar Council specifying the excess committed so that the Bar Council takes its disciplinary action. Where there is any disregard on the part of the law officers of the Public Ministry, notice will be addressed to the Superior Judicial Council for it to take appropriate steps. When the excess is committed by the parties or by other persons, the Presiding officer may apply same sanctions as imposed on the advocates, and even impose fine depending upon seriousness of the offence. § 1: The expressions and utterances necessary for the defence of the case are not to be considered offensive. § 2: In the proceedings pending before the higher courts, the expunction or imposition of fine may be imposed only by way of order of the collective court. § 3: An appeal lies from the decision of the court of first instance or second instance which directs expunction or imposition of fine, and it shall always operate as stay of the impugned order. Also from the decision to withdraw the right of audience or direct expulsion, appeal from order lies and the effect will be suspended till the decision of the appellate court. § 4: If the excess is committed in the arguments submitted before the lower court, it is for the superior court to exercise the disciplinary power, except in case of appeal from order, in which this power is to be exercised by the court appealed from. The withdrawal or abandonment of the appeal does not prevent the excesses of the language committed in the arguments from being dealt with, and power is with the court before whom the file is pending at the time of withdrawal or abandonment.

§ 5: When fine is imposed, notice will be given to Public Ministry for the purpose of execution.

SUB-SECTION III JUDICIAL ACTS

Article 156 – Duty to decide and carry out decisions of higher courts - Judgment - The

judges have the duty to administer justice, passing order or judgment on the matters pending before them and complying, in accordance with the law, with the decisions of the superior courts. § Sole Paragraph: The act by which the judge decides the principal cause or any incidental proceeding filed which, according to law, has the characteristic of a cause is called a judgment. The judgments of the collective courts have a special designation of division bench judgment (“acórdãos”)*. Article 157 – Formal requisites of judgment and order - The orders, judgments and bench judgments (‘acórdãos’) shall be written by the respective judges and shall contain date, nature, and the name, in full or in brief, of the judge who has delivered them. § 1: Instead of writing the entire order or judgment in the file, the judge may deliver the same to the office to be reproduced in the record, a typed copy containing the original facts of the case and the grounds, and in this case, the judge shall take care that the revision is made carefully, noting below, the corrections, erasures, and initial all the pages. The decision and signature shall always be in the handwriting of the judge. § 2: The orders and judgments pronounced orally, in the course of the trial, should be recorded in the minutes and will be reproduced therein. The signature of the judge on the records of the minutes of the hearing guarantees the authenticity of the judgment. § 3: The judgments and bench judgments (‘acórdãos’) are to be registered in a special book. Article 158 – Duty to pass speaking orders - The decision passed on any controverted point or on any doubt raised in the proceeding shall always be supported by reasons whether in granting the prayer or refusing the same. Justification cannot be mere agreement with the points raised in the application or in the reply.

• At several places we have translated this as “collective judgment”. Article 159 – General time limit for orders - In the absence of any special provision all orders which are not merely of administrative nature are to be pronounced within 5 days. Such period does not run during the holidays of Christmas, Carnival and Easter. The orders of administrative nature shall be passed immediately. Article 160 – Time limit for say - The say of the Public Ministry shall be given within a period of 3 days, unless otherwise provided by the law or by the judge. SUB-SECTION IV ACTS OF THE REGISTRY Article 161 – Who should write records and minutes - The notings and minutes of proceedings in which the judge or the Law officers of the Public Ministry take part shall be written or typed by the head of the registry or under his direction.

obligation to write the minutes and notings is cast. Article 162 – Formal requirements of records and proceedings - The notings and minutes and certified copies issued by the court shall never contain open spaces, which are not crossed, nor interlineations, erasures or corrections which are not noted at the end as errata notes. No abbreviations shall be used and the dates and numbers connected with the rights or liabilities shall always be in figures and words.

Article 163 – Comprehensiveness of records - Every minute and noting should disclose by

mere reading the text, without there being need to refer to any other portion of the file.

Article 164 – Signature on records and proceedings - The minutes and notings are valid

provided they are signed by the judge and the concerned staff of the court. If in the act there is no intervention of the judge, the signature of the concerned staff of the court is sufficient, except where the record is of the expression of the will of any of the parties or they incur some liability

themselves, because in such cases it is necessary that there should be signature of the party or its representative. § Sole Paragraph: Where it is mandatory for the party to sign and he is unable to do so or does not wish to do so or does not know how to sign, the minutes or notings shall be signed by two witnesses who identify the party. Article 165 – Initials on the pages of the file - The head of the office is bound to initial all the pages of the file in which his signature does not figure; and the judges shall initial, the pages of the files wherever they have intervened, except when they have already affixed their signature. § Sole Paragraph: The parties and their agents shall have right to initial any pages of the file. Article 166 – General time limit for office to process matters - The registry shall obtain orders of the judge in chamber on proceedings obtain on the file the say of the Public Ministry made it

available for inspection, have warrants issued from normal acts, within a period of two days,

except in the case of urgency. Article 167 – Inspection in the office of pending of closed files - Pending files or those kept in records may be examined in the registry, by the parties, or by any advocate or legal advisor. But the files of annulment of marriage, divorce, separation of persons and assets and challenging legitimacy of paternity, may be examined only by the parties and their representatives; and the proceedings of interdiction by prodigality before the publication of the judgment, of the seizure, sealing and listing and similar, before the conclusion of the respective acts, may be permitted to be examined only by the applicants and their agents. Article 168 – Right of advocates to inspect files at their residence - The advocates appointed by the parties may apply that they may be entrusted with files for examining them at their residence.

§ 1: In the application, the advocate shall make solemn affirmation that he undertakes to return

the file within the time assigned to him by the judge and in failing to give such undertaking the application is liable to be rejected.

§ 2: The judge, after hearing the registry orally or in writing, may grant the request when there is

no inconvenience to the office, fixing the period for examination which shall not be extended.

Article 169 – Register of handing over files to advocates - The delivery of the file to the

advocate shall always be registered in special book indicating the particulars of the proceeding, date and time of the delivery and time granted for examination. The notings shall be signed by the advocate or his employee duly authorized in writing. When the proceeding is returned, the noting shall be done by doing the cancellation at the margin. Article 170 – Penalty for failure to return file within time - The advocate who breaches his undertaking, shall not thereafter be entitled to get the benefit referred to in article 168 and without any notice incur penalty for suspension for 1 month and a fine, if he does not deliver it within 5 days, and if 10 days elapse, double the penalty will be leviable. If, at the end of 2 months he does not return the file, the matter will be reported to Public Ministry which will initiate criminal proceedings and seize the file. Article 171 – Special provision for inspecting file at home instead of in the Court office - Whatever is provided in the preceding articles is applicable to the cases in which by provision of law, time limit is fixed for the advocates of the parties, to examine the file in the office; in such cases the application shall always be granted with the exception provided in the preceding article. § 1: There being different periods fixed for each of the parties, the respective advocate may enjoy this facility granted in this article within time fixed for his client. If, when the period fixed is cumulative to all, the judge would divide it between the parties so that a defendant or the respondent is the last one to avail of the same. § 2: In the event the advocate does not return the file within 5 days subsequent to the period fixed, besides incurring the penalty prescribed in the preceding article, he shall also lose the right to submit written arguments. Article 648, 699, 716 of this Code. Article 172 – Examination of file by Public Ministry and Advocates appointed by Court - The representatives of Public Ministry and the advocates appointed by the Court are also entitled to examine at their residence the pending proceeding in which they intervene, independent of the solemn affirmation referred to in Paragraph 1 of article 168. The request shall be rejected if the delivery of the file causes serious embarrassment to the progress of the case.

§ Sole Paragraph: When the file is not returned within the time, the provisions of preceding articles shall apply to the appointed advocates. Article 173 – Inspection at home of closed proceedings - With reference to closed proceedings, the advocates who could apply for inspection of the current files in the office may also apply for delivery as per article 168. § Sole Paragraph: The registry shall not refuse to the law officers of the Public Ministry the inspection or delivery of any closed proceedings. The delivery shall be made by simple requisition in writing independent of the order of the court. Article 174 – Duty to issue certificates - The office shall, without need of any order from the court, issue certified copies, abstract or full text, of all the judicial acts and notings, when demanded by the respective parties or any advocates and legal advisers. § Sole Paragraph: In the cases referred to in the last part of the article 167, when they are at the confidential stage, certified copies may be issued only to the applicants or their agents. In relation to files which may be shown only to the parties or their representatives, no certified copies shall be issued without prior order in respect of the need on the written application giving reasons for the necessity to obtain such certified copies; the order shall fix the contents of the certified copies so that the parties are not deprived to enforce their right and at the same time the confidential character of the said file is protected. See Art 138 and 139 of Judicial Statutes.

Article 175 – Time limit for issue of certified copies - The certified copies shall be issued

within a period of 5 days. When the office, refuses to grant it or delays the issuance of the certified copies, the party shall move the court for direction to be issued. If the court after hearing the concerned clerk, holds that the refusal is justified, it shall reject the application; where the court finds that the delay is justified, shall fix time within which the certified copy shall be issued; if the court finds the behaviour of the officer is irregular, the court shall admonish the officer or impose on him more grave punishment depending upon the circumstances of the case and direct him to issue the copy within time fixed.

§ Sole Paragraph: In case of urgency the interested party may apply that the copy may be issued within less than 5 days. Art 139 of Judicial Statute. SUB-SECTION V NOTIFICATION OF JUDICIAL PROCEEDINGS Article 176 – Issuance of writ of summons, letter, official letter or telegram to requisition judicial acts - The communication of the judicial acts may be directed or solicited by way of issuance of writ of summons, letter of request, official letter or telegram. The writ is issued when the act has to be done within the territorial limits of the jurisdiction of the court who orders it. The use of the letter of request is employed when the act is to be performed outside the jurisdictional limits of the court. The letter is precatory when the request has been made to a Portuguese court or consul and it is letter rogatory when the act is solicited to a foreign authority. If the execution of the act is of urgent nature it may be ordered or solicited by way of telegram. The summons, notices and affixation of public notices may be solicited even to the foreign authorities by way of official letters. Also by a simple official letter or telegram it is permissible to suspend the compliance of any letter of request already issued even though the compliance of the same was already commenced. § Sole Paragraph: Whatever is said about the letter of request applies equally to the official letters and to telegrams. Article 177 – To whom the letters should be addressed – Duty to comply - The letters shall be addressed to the court of the Judicial Division in whose jurisdiction the act is to be performed; but if it is found that the act is to be performed at any other place, the letter should be complied with by the court of the judicial division at that place. The courts of judicial division may direct compliance of letters, office letters, and telegrams for service of summons, notices and service by way publication of summons through justices of peace. § 1: It is permissible to solicit the summons, notices and service by way of publication of summons directly from the local subordinate court. It is also permissible to ask directly from the

local court to comply with any other request provided that it is done through local subordinate judge or arises from proceedings in the jurisdiction of the local subordinate court. § 2: The letter for summons, notice, examination or deposition of the working judge, his wife or any ascendant or descendent by consanguinity shall be addressed to the court mentioned in articles 88 and 89. To the same court shall be addressed the letters for any other steps when they emerge from the proceedings where any of the said persons are parties. For the purpose of compliance with the letter of request the court shall have the same powers as given by Paragraph 2 of the article 88. Article 178 – Content of letter - The letter shall be drafted with all simplicity and shall contain only what is strictly necessary for carrying out the steps. Article 179 – Enclosing of autographs or other plan with letter - If in the records there is any autograph, or any plan, drawing or chart which is required to be examined by the parties, experts or witnesses in the relevant act, such papers shall be sent or one photo copy of the same. If the originals are sent, the letter of request shall be issued and returned officially. In such case before the issuing of the letter, any party may get the original photocopied, but without the file having to be given to him for this purpose. Article 180 – Time limits - In the letters of request for summons, the extended time limit shall be indicated which shall not be extended. In the letter of request for personal appearance the date on which the party shall appear in the court shall be indicated. Keeping in mind the distance and the facility of communication the extended period shall be fixed within the following limits:

1. (a)Between 3 to 8 days when the proceedings are taking place in Continental Portugal and the service is also to be effected in the continent;
2. (b)Between 3 to 10 days when the court is in the adjacent island and the service is to be done in the same island;
3. (c)Between 8 to 30 days when one of the localities is in the continent and the other is in one of the islands or when the both localities are in different islands or when the summons is to be served in foreign countries within Europe or in the colonies of Guiné, Cabo Verde and S. Tome;
4. (d)Between 30 to 60 days when service of summons is to be effected in Angola;
5. (e)Between 3 to 4 months when the service is to be effected in any other colony or in a foreign country. The same rules shall be followed for the fixation of the day for the appearance in person. Article 181 – Time limit for compliance with the letters - In the letter of request for taking any other step in the proceeding time shall be fixed within which the request should be fulfilled. Such time starts from delivery or dispatch of the letter and the dates on which the judicial acts cannot be done, shall not be taken into account. Considering the distance, the means of communications and nature of step to be taken to the court, shall fix time within the following limits:
6. (a)Between 10 to 40 days when the issuing court and the receiving court have their offices in the continental Portugal or in the same island;
7. (b)Between 30 to 90 days, when one of them has its office in the continent and other in any other islands or when the offices are in different islands or when step is to be taken in a foreign country of Europe;
8. (c)Between 60 days to 4 months when the step is to be taken in any of the colonies of the West Africa;
9. (d)Between 60 days to 6 months, when step to be taken in any other colony or other foreign country; § 1: Where it is seen from the certified copy that before the end of the period fixed, the letter cannot be complied with within the stipulated time, the time will be further extended. The time limit will not come in the way of the letter being received late if there is no decision on the factual merits of case. § 2: If within the time fixed it was found that the letter of request was lost, the duplicate copy of the same shall be sent for the compliance. Article 182 – Dispatch and delivery of letters - The letter of request issued from the proceedings under orphans’ jurisdiction shall be sent by the Office of the court. Those of the other proceedings shall also be issued by the Office of the court when they relate to leading evidence; in other cases shall be delivered to the party applying for it, except when the law demands that they may be issued officially or the interested party so applies. The letter of request, whichever may be the purpose, shall be sent by the office of the court directly to the authority or to the foreign court unless there is a convention to the contrary. The papers will be sent through diplomatic agency or consular agency, as provided by the law of that country; where the country does not receive official communication, the letter of request shall be handed over to the interested party. § Sole Paragraph: The opposite party shall be given notice of the dispatch or delivery of the letter for leading evidence. Article 183 – Effect of letter of request on progress of proceedings - The issuing of a letter does not come in the way of further steps in the matter, which are not absolutely dependent on the steps which have been asked to be taken by way of letter of request; however, the arguments and judgement shall not take place unless the letter of commission is provided or the time fixed for the compliance is over. Article 184 – Valid reasons to refuse compliance with letter of request - The court to which the letter of request was addressed, may decline to comply with the same in the following cases:

1. (1)If there is doubt as to the authenticity of the letter of request.
2. (2)If the court lacks competence on merits or hierarchy in relation to the subject of the letter of request.
3. (3)If the request has been made for the act which is absolutely prohibited by law. Article 185 – Legitimate reasons for refusal to comply with letters rogatory – Compliance with letters rogatory shall be refused in the cases mentioned in the previous article and also in the following cases:
4. (1)Where the letter has not been legalized;
5. (2)Where the act is contrary to the Portuguese public order;
6. (3)If the execution of the letter threatens sovereignty and security of the State;
7. (4)If the act amounts to execution of the decision of the foreign court which is subject to revision and confirmation and the same has not been revised and confirmed. Article 186 – Procedure for compliance with letters rogatory - The letters rogatory issued by foreign countries shall be received by any route save treaty or convention to the contrary. Upon the receipt of the letter rogatory, the Public Ministry shall be heard and thereafter it will be decided whether the same is to be implemented. The Public Ministry may appeal from the order directing the compliance and such appeal from order shall operate as stay of the impugned order. Article 187 – Powers of recipient Court - It is the duty of the court recipient of the letter request or letter rogatory to give effect to the letter in accordance with the law. In the event in the letter rogatory there is request which does not offend Portuguese law, the court will comply with the same. Article 188 – Return of letter of request after compliance - After the letter of request has been complied with, without retaining its copy, it shall be returned or delivered and the office shall indicate by noting the proceeding the distance between the remitting court and the recipient court when there is a requirement of such formality. The cost shall be submitted to the remitting court at the proper time. Upon the return of the letter, the same will be kept in the records of the case and the opposite party shall notify by post except in the case of issuance of summons or notice or by publication. The periods of time depending on compliance with the letter are counted from the date next to the receipt of the letter of request. Article 189 – Signature on the writs - The writ shall be signed by the head of the registry by order of the court. Article 190 – Cases in which writ may not be issued - No writ shall be issued:
8. (1)When act is drawn in ordinary paper.
9. (2)When the act has not been done by the bailiff.

Article 191 – Contents of writ - The writ shall contain besides the order of the court the

indication which is absolutely necessary for the purpose of the implementation.

Article 192 – Performance of acts delegated to the subordinate judge or justice of peace - The acts delegated to the subordinate judge or justice of peace shall be executed by the writ of the Senior judge of the respective judicial division. The delegate judge shall pass his order on the writ and shall return to the court of the judicial division after compliance. SUB-SECTION VI NULLITY OF ACTS

Article 193 – Defective Petition – The entire proceedings are null and void when the initial

petition is defective. The petition shall be considered defective:

1. (a)When it is not possible to know what the relief is;
2. (b)When it is not possible to know what the cause of action is;
3. (c)When the relief is in contradiction with cause of action;
4. (d)When inconsistent reliefs have been sought together. § 1: .Where the respondent raises the plea that the petition is defective on the grounds mentioned in clauses (a) and (b) and files his statement of defence, the objection raised is not to be held to be tenable when after hearing the petitioner it is found that the respondent interpreted the plaint correctly. § 2: In the case of clause d) nullity shall subsist even though one of the reliefs may become ineffective by reason of lack of jurisdiction of the court or error in the form of the proceedings. Article 194 – Cases in which the entire proceedings subsequent to petition are annulled - The entire procedure after the initial petition is null and void retaining only the plaint;

1. (1)When the respondent has not been summoned;
2. (2)When the Public Ministry has not been summoned right at the commencement of the proceedings, in cases where it is the principal party;
3. (3)Where there is an error in the form of procedure and nothing can be saved except the petition in terms of article 199. Article 195 – When the service is taken as not effected - There is lack of service of notice;
4. (1)When the act has been completely omitted;
5. (2)When there is error in the identity of the party notified;
6. (3)When the notice by publication has been wrongly used;
7. (4)When service has been effected omitting essential formalities. § Sole Paragraph: Following are essential formalities: a)In the service effected on the person of the respondent the delivery of the duplicate and signature of the summoned person or the intervention of 2 witnesses when the summoned person does not sign; b)In the case of third part of article 235, the affixation of the note at the place and with the requisites which the text requires and issuance of the registered letter in terms of Paragraph 2 of article 243; c)In the service made on a person other than the respondent: such person must be designated by the law; it should be a clear case where the law permits the substitution; the delivery of the duplicate; the signature of the same person in the certificate or intervention of 2 witnesses and remission of registered letters in terms of Paragraph 2 of article 243; d)In summons through post in terms of article 244, signature on the acknowledgement due card and delivery of the duplicate; e)In service by publication of the summons, the affixation of such notice on the door of the house of the village official or on the door of the respective court and if the law also demands publication of advertisements, the publication of such notice in the newspaper of the locality in which it ought to have been published. Article 196 – Curing of nullity for lack of service - In the event the defendant or the Public Ministry intervenes in the proceedings, without raising immediately the point of lack of service on himself, the nullity is treated as cured. Article 197 – Consequences of lack of service where there are served respondents- There being many respondents the lack of service on one of them has following consequences: (a)In case of joinder of necessary parties, whatever has been processed after the service shall be annulled; (b)In the case of joinder of proper parties, nothing is to be annulled, but if the proceedings are not yet at the stage of fixing the date for the trial, the petitioners may pray that the respondent be summoned. In such case the trial shall not proceed, unless the respondent who is not served is allowed to take in the proceeds the steps of which he was deprived for lack of service in time. Art 28, (a) 2 nd part of (c). Article 198 – Nullity of service - The service is null and void when essential formalities are observed but other formalities prescribed by law are omitted. The time to raise the plea of such a nullity starts from the date of service. However, the plea will be entertained only if the omission may prejudice the defence of the summoned party. § Sole Paragraph: If the irregularity consists in indication for the purpose of the defence of a period longer than that granted by the court, the defence should be admitted within the time limit indicated, unless the Plaintiff had taken steps for the Defendant to be served again as per the law.

Article 199 – Consequences of error in the form of proceedings - Error in the form of

proceeding shall only cause nullity of the acts which cannot be made use of and the acts that are strictly necessary so that the proceedings are more or less in accordance with the form prescribed by law, shall be carried out. However, the acts done shall not be used if there is decrease in the guarantees available to the respondent. § Sole Paragraph: The initial petition shall always be used even though it does not agree with the legal form. Article 200 – Absence of file inspection by Public Ministry - Absence of file inspection by the Public Ministry when the law demands its intervention as accessory party, is deemed as cured provided that the party who required assistance on the part of the Public Ministry, exercised its rights in the proceedings with the assistance of its legal advisor. If the case is of proceeding ex-parte, as against the party which ought to have been represented by the Public Ministry, the proceedings shall be annulled from the time when Public Ministry should have been permitted to inspect or examine the file.

Article 201 – General rule as to nullity of procedural acts - Besides the cases foreseen in the previous articles, the commission of an act which the law does not sanction and omission of an act or any formality which the law prescribes, gives rise to nullity only where the law expressly so declares or where the irregularity committed has bearing in the investigation or in the decision of the case. When one act is to be annulled, all the subsequent acts which absolutely depend on it shall also be annulled. Article 710, sole paragraph. Article 202 – Nullities of which Court may take cognizance on its own -The court may take cognizance suo moto of the nullities mentioned in articles 193, 194, 199 and 200 unless they are deemed as cured. Of the others the court can take cognizance upon the complaint from the interested parties save in the special cases where the law permits suo moto cognizance. Article 203 – Who is precluded from pleading nullity - A party is debarred from raising the point of nullity where that party caused the same, or waived such right expressly or impliedly. Article 204 – Time upto which nullity may be argued - The nullities of article 193 and 199 may be raised till the filling of the defence statement or in the defence statement itself. The nullities of Paragraph 1 and 2 of article 194 and 200 may be raised at any stage of the proceedings, as long as they cannot be considered as cured.

Article 205 – General rule as to objection - In respect of other nullities, where the party is

present personally or through an agent, the irregularity may be pointed out at the time of commission of the irregularity but before the completion of the act; where the party is not present, the time limit to point out nullity is when, after the commission of the irregularity, the party was given notice of the proceedings or the party intervened in any act done in the same proceedings. When the irregularity is pointed out or noticed during the commission of the irregularity, presided over by the judge, the judge shall take necessary steps, so that the law is complied with. § Sole Paragraph: Where the proceeding has been sent in appeal before the end of the period fixed

in this article, nullity may be raised before the higher Court and the period shall be counted from the date of the assignment. See also Article 154 of this Code. Article 206 - At what point the Court can take cognizance of the main nullities - Cognizance of the nullities referred to in the articles 193, 194, 199 and 200 shall be taken in the curative order if their cognizance was not taken earlier; after passing the curative order, their cognizance can be taken upon an objection raised by the interested party whenever it is admissible. If there is no curative order, the cognizance can be taken of the same nullities till the final judgment. Article 207 – General rule as to Judgment - About other nullities cognizance can be taken as soon as objection is raised. In the High Courts or in the Supreme Court, when objection is raised the judge preparing the judgment shall take the proceeding to the bench to be decided by a Bench judgment. Article 208 – Null acts cannot be reopened - The act which is null shall not be reopened if the period within which should have been done had lapsed. But if the reopening is beneficial to the party who has no responsibility in the commission of nullity such case stands excluded. SECTION II SOME SPECIAL ACTS SUB-SECTION I ALLOTMENT OF CASES DIVISION I GENERAL PROVISIONS Article 209 – Purpose of allotment - If in a court there is more than one section, it is by way of distribution that the section or bench of the court to which the proceeding will be allotted and who amongst the judges shall prepare the judgment, is designated.

§ Sole Paragraph: The distribution of the proceedings through the officials of the secretariat of the superior Courts or of the section in the courts of first instance shall be done by the head, as per internal regulation. Articles 209-227 - Allotment and distribution of cases:- These are dealt with in Civil Manual, by the Civil Courts and High Court Appellate side rules. Article 210 – Rules as to failure, irregularity or error in distribution - A mistake or irregularity in the distribution will not give rise to annulment of any judicial proceeding. The court of its own motion may or at the instance of the any interested party may supply the deficiency or correct the irregularity or any error till the final decision. DIVISION II PROVISIONS RELATING TO THE FIRST INSTANCE Article 211 – Papers subject to distribution in the Court of first instance – The following papers are liable to be distributed in the Court of first instance: 1.The papers which relate to the commencement of the cause, except where the same is a dependence of another already distributed; 2.Papers coming from another court with the exception of letter of request, warrants, official letter, telegrams, for simple summons, notice or affixation of the publication. § Sole Paragraph: The cases which by law or by order of the court are to be considered dependent on others shall be appended to those on which they are dependent; but an inventory shall not proceed further after the declaration of the head of the family, without being registered in the respective section. Article 212 – Acts which do not depend on distribution – The following documents are not dependent on distribution: sundry notices, the urgent collections, the judicial possessions, the preventive acts and preparatory acts and other urgent steps taken before the commencement of the cause or before the service of summons on the defendant. But if the act admits opposition, the file shall be distributed as soon as the objection is filed except when the main cause has been distributed of which such act is the preparation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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