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.
ORDER XLI APPEALS FROM ORIGINAL DEGREES
Form of appeal, What to accompany memorandum? What are the
Grounds which may be taken in appeal? What is Rejection or
amendment of memorandums? How to file Application for
condonation of delay? What is the meaning of One of several
plaintiffs or defendants may obtain reversal of whole decree
where it proceeds on ground common to all? Rule
1, 2, 3 and 4 of Order XLI of Code of Civil Procedure 1908
What is Stay by Appellate Court? What is Security in
case of order for execution of decree appealed from?
What is Exercise of powers in appeal from order made
in execution of decree? Rule
5, 6, 7 and 8 of Order XLI 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
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
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
Judgment when and where pronounced? What are
Contents, date and signature of Judgment? What
Judgment may direct? What is the Power of Court of
Appeal? Is dissent to be recorded? Rule 30, 31, 32,
33 and 34 of Order XLI of Code of Civil Procedure 1908
What are Date and contents of decree? How many
Copies of Judgment and decree to be furnished to
parties? Should Certified copy of decree to be sent
to Court whose decree appealed from? Rule 35, 36 and
37 of Order XLI of Code of Civil Procedure 1908
ORDER XLII APPEALS FROM
APPELLATE DECREES
What is Procedure? What is the Power of Court to direct that
the appeal be heard on the question formulated by it? What
is Application of rule 14 of Order XLI? Rule 1, 2 and 3 of Order XLII of Code of Civil Procedure 1908
ORDER XLIII
APPEALS FROM ORDERS
Appeal from orders and Procedure Rule 1 and 2 of Order XLIII of Code of Civil Procedure 1908
ORDER XLIV APPEALS BY INDIGENT PERSONS
Who may appeal as an indigent person? Grant of time for
payment of court-fee, Inquiry as to whether applicant is an
indigent person? Rule 1, 2 and 3 of Order XLIV of Code of Civil Procedure 1908
ORDER XLV APPEALS TO THE SUPREME COURT
"Decree" defined, What is Application to Court whose decree
complained of? What is Certificate as to value or fitness?
What is the Effect of refusal of certificate? Are Security
and deposit required on grant of certificate? What is
Admission of appeal and procedure thereon? Rule 1, 2, 3, 4,
5, 6, 7 and 8 of Order XLV of Code of Civil Procedure 1908
What is Revocation of acceptance of security? What is the
Power to dispense with notices in case of deceased parties?
What is the Power to order further security or payment? What
is the Effect of failure to comply with order? Refund of
balance deposit, Powers of Court pending appeal, Increase of
security found inadequate, What is the Procedure to enforce
orders of the Supreme Court? How to file Appeal from order
relating to execution? Rule 9, 9A, 10, 11, 12, 13, 14, 15 and
16 of Order XLV of Code of Civil Procedure 1908
ORDER XLVI REFERENCE
What is Reference of question to High Court? Court may pass
decree contingent upon decision of High Court, Should
Judgment of High Court to be transmitted and case disposed
of accordingly? What is Costs of reference to High Court?
What is Reference to high Court under proviso to section
113? What is the Power to alter, etc., decree, of Court
making reference? What is the Power to refer to High Court
questions as to jurisdiction in small causes? What is the
Power to District Court to submit for revision proceeding
had under mistake as to jurisdiction in small causes? Rule
1, 2, 3, 4, 5, 6 and 7 of Order XLVI of Code of Civil Procedure 1908
ORDER XLVII REVIEW
What is Application for review of judgment? To whom
applications for review may be made? What is the Form of
applications for review? When Application where rejected?
How to file Application for review in Court consisting of
two or more judges? Application where rejected? When Order
of rejection not appealable? Objections to order granting
application, Registry of application granted, and order for
re-hearing, Bar of certain application? Rule 1, 2, 3, 4, 5,
6, 7, 8 and 9 of Order XLVII of Code of Civil Procedure 1908
ORDER XLVIII MISCELLANEOUS
Is Process to be served at expense of party issuing? Orders
and notices how served? Use of form in appendices? Rule 1, 2
and 3 of Order XLVIII of Code of Civil Procedure 1908
ORDER XLIX CHARTERED HIGH COURTS
Who may serve processes of High Court? What is Saying in
respect of Chartered High Courts? Application of rules? Rule
1, 2 and 3 of Order XLIX of Code of Civil Procedure 1908
