ORDER XLI PROCEDURE ON HEARING OF APPEAL - RULE 23, 24, 25, 26, 27, 28, 29 OF CODE OF CIVIL PROCEDURE 1908

What is Remand of case by Appellate Court? What is Remand in other Cases? Where evidence on record sufficient Appellate Court may determine case finally? Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from? Should Findings and evidence to be put on record? What are the Objections to finding? Should Order of remand to mention date of next hearing? Can Production of additional evidence in Appellate Court allowed? What is the Mode of taking additional evidence? What are the Points to be defined and recorded? Rule 23, 24, 25, 26, 27, 28 and 29 of Order XLI of Code of Civil Procedure 1908

Remand of case by Appellate Court, Remand in other Cases, Where evidence on record sufficient Appellate Court may determine case finally, Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from, Findings and evidence to be put on record. Objections to finding, Order of remand to mention date of next hearing, Production of additional in Appellate Court, Mode of taking additional evidence and Points to be defined and recorded are defined under Rule 23, 24, 25, 26, 27, 28 and 28 of Order XLI of Code of Civil Procedure 1908. Provisions under these Rules are:


 

Rule 23 Order XLI of Code of Civil Procedure 1908 "Remand of case by Appellate Court"

Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate court may, if it fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred. ,which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

Rule 23A Order XLI of Code of Civil Procedure 1908 "Remand in other Cases"

Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.

Rule 24 Order XLI of Code of Civil Procedure 1908 "Where evidence on record sufficient Appellate Court may determine case finally"

Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgement, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgement of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

Rule 25 Order XLI of Code of Civil Procedure 1908 "Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from"

Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;

and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.

Rule 26 Order XLI of Code of Civil Procedure 1908 "Findings and evidence to be put on record. Objections to finding"

(1) Such evidence and findings shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding.

(2) Determination of appeal- After the expiration of the period so, fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.

Rule 26A Order XLI of Code of Civil Procedure 1908 "Order of remand to mention date of next hearing"

Where the Appellate Court remands a case under rule 23 or rule 23A, or frames issues and refers them for trial under rule 25, it shall fix a date for the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the direction of that Court as to further proceedings in the suit.

Rule 27 Order XLI of Code of Civil Procedure 1908 "Production of additional in Appellate Court"

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise if due diligence, be produced by him at the time when the decree appealed against was or)

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

Rule 28 Order XLI of Code of Civil Procedure 1908 "Mode of taking additional evidence"

Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

Rule 29 Order XLI of Code of Civil Procedure 1908 "Points to be defined and recorded"

Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified.

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