ORDER XLI PROCEDURE ON HEARING OF APPEAL - RULE 16, 17, 18, 19, 20, 21, 22 OF CODE OF CIVIL PROCEDURE 1908

What is Right to begin? What is the meaning of Dismissal of appeal for appellants’ default? When  Dismissal of and where notice not served in consequence of appellant’s failure to deposit costs? How to do Re-admission of appeal dismissed for default? What is the Power to adjourn hearing and direct persons appearing interested to be made respondents? How to do Re-hearing on application of respondent against whom ex parte decree made? Can Upon hearing respondent may object to decree as if he had preferred a separate appeal? Rule 16, 17, 18, 19, 20, 21 and 22 of Order XLI of Code of Civil Procedure 1908

Right to begin, Dismissal of appeal for appellants’ default, Dismissal of and where notice not served in consequence of appellant’s failure to deposit costs, Re-admission of appeal dismissed for default, Power to adjourn hearing and direct persons appearing interested to be made respondents, Re-hearing on application of respondent against whom ex parte decree made and Upon hearing respondent may object to decree as if he had preferred a separate appeal are defined under Rule 16, 17, 18, 19, 20, 22 and 22 of Order XLI of Code of Civil Procedure 1908. Provisions under these Rules are:


 

Rule 16 Order XLI of Code of Civil Procedure 1908 "Right to begin"

(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.

(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal and in such case the appellant shall be entitled to reply.

Rule 17 Order XLI of Code of Civil Procedure 1908 "Dismissal of appeal for appellants’ default"

(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

Explanation-Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.

(2) Hearing appeal ex parte - Where the appellant appears and the respondent does not appear the appeal shall be heard ex parte.

Rule 18 Order XLI of Code of Civil Procedure 1908 "Dismissal of and where notice not served in consequence of appellant’s failure to deposit costs"

On the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the Period fixed, the sum required to defray the cost of serving the notice or, if the notice is returned and it is found that the notice to the respondent has not been issued in consequence of the failure of the appellant to deposit, within any subsequent period fixed, the sum required to defray of the cost of any further attempt to serve the notice, the Court may make an order that the appeal be dismissed:

Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing.

Rule 19 Order XLI of Code of Civil Procedure 1908 "Re-admission of appeal dismissed for default"

Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 or rule 18, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

Rule 20 Order XLI of Code of Civil Procedure 1908 "Power to adjourn hearing and direct persons appearing interested to be made respondents"

(1) Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.

(2) No respondent shall be added under this rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit.

Rule 21 Order XLI of Code of Civil Procedure 1908 "Re-hearing on application of respondent against whom ex parte decree made"

Where an appeal is heard ex parte and Judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.

Rule 22 Order XLI of Code of Civil Procedure 1908 "Upon hearing respondent may object to decree as if he had preferred a separate appeal"

(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 21[but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

Explanation.- A respondent aggrieved by a finding of the Court in the Judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit the decree, is, wholly or in part, in favour of that respondent.

(2) Form of objection and provisions applicable thereto- Such cross-objection shall be in the form of a memorandum, and !he provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

(3) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.

(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.

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