Order XLI CPC Rules 16-22: Procedure on Hearing of Appeal

Rule 16, Order XLI CPC: 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 CPC: Dismissal of appeal for appellant's 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 CPC: Dismissal where notice is not served due to appellant's failure to deposit costs

Where, on the day fixed or any adjourned day, it is found that notice to the respondent has not been served because the appellant failed to deposit within the time fixed the sum required to defray the cost of serving the notice, or because the appellant failed to deposit within a subsequent period the sum required for any further attempt at service, the Court may dismiss the appeal.

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

Rule 19, Order XLI CPC: 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 re-admission of the appeal; and where it is proved that he was prevented by 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 CPC: Power to adjourn hearing and direct interested persons 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 and direct that such person be made a respondent.

(2) No respondent shall be added under this rule after 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 CPC: Rehearing on application of respondent against whom ex parte judgment was pronounced

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 CPC: Respondent may support decree and take cross-objection

(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 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 Appellate 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 the 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 filing, 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.