ORDER XLI PROCEDURE ON ADMISSION OF APPEAL - RULE 9, 10, 11, 12, 13, 14, 15 OF CODE OF CIVIL PROCEDURE 1908

What is Registry of memorandum of appeals? Do Appellate Court may require appellant to furnish security for costs? What is the Power to dismiss appeal without sending notice to Lower Courts? How to fix Day for hearing appeal? Should Appellate Court to give notice to Court whose decree applied from? How is Publication and service of notice of day for hearing appeal? What are the Contents of notice? Rule 9, 10, 11, 12, 13, 14 and 15 of Order XLI of Code of Civil Procedure 1908

Registry of memorandum of appears, Appellate Court may require appellant to furnish security for costs, Power to dismiss appeal without sending notice to Lower Courts, Day for hearing appeal, Appellate Court to give notice to Court whose decree applied from, Publication and service of notice of day for hearing appeal and Contents of notice are defined under Rule 9, 10, 11, 12, 13, 14 and 15 of Order XLI of Code of Civil Procedure 1908. Provisions under these Rules are:


 

Rule 9 Order XLI of Code of Civil Procedure 1908 "Registry of memorandum of appears"

(1) Where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose.

(2) Register of Appeals- Such book shall be called the Register of Appeals,

Rule 10 Order XLI of Code of Civil Procedure 1908 "Appellate Court may require appellant to furnish security for costs"

(1) The Appellate Court may in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both:

Where appellant resides out of India-

Provided that the Court shall demand such security in all casts in which the appellant is residing out of 9[India], and is not possessed of any sufficient immovable property within 9[India] other than the property (if any) to which the appeal relates.

(2) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.

Rule 11 Order XLI of Code of Civil Procedure 1908 "Power to dismiss appeal without sending notice to Lower Courts"

(1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

(2) If on the day fixed or 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

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub -rule (1), it shall deliver a Judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the Judgment.

Rule 11A Order XLI of Code of Civil Procedure 1908 "Time within which under rule 11 should be concluded"

Every appeal shall be heard under rule 11 as expeditiously as possible and Endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed.

Rule 12 Order XLI of Code of Civil Procedure 1908 "Day for hearing appeal"

(1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.

(2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent, and the time necessary for the service of the notice of appeal, so as to allow the respondent sufficient time to appear and answer the appeal on such day.

Rule 13 Order XLI of Code of Civil Procedure 1908 "Appellate Court to give notice to Court whose decree applied from"

(1) Where the appeal is not dismissed under rule 11, the Appellate Court shall send notice of the appeal to the Court from whose decree the appeal is preferred.

(2) Transmission of Papers to Appellate Court-Where the appeal is from the decree of a Court, the records of which are not deposited in the Appellate Court, the Court receiving such notice shall send with all practicable dispatch all material papers in the suit, or such papers as may be specially called for by the Appellate Court.

(3) Copies of exhibits in Court whose decree appealed from-Either party may apply in writing to the Court from whose decree the appeal is preferred, specifying any of the papers in such Court of which he requires copies to be made; and copies of such papers shall be made at the expense of, and given to, the applicant.

Rule 14 Order XLI of Code of Civil Procedure 1908 "Publication and service of notice of day for hearing appeal"

(1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.

(2) Appellate Court may itself cause notice to be served- Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.

(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.

(4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.

(5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it.

Rule 15 Order XLI of Code of Civil Procedure 1908 "Contents of notice"

The notice to the respondent shall declare that, if he does not appear in the Appellate Court on the day so fixed, the appeal will be heard ex parte.

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