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Supreme Court of India
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Civil Law
Bare Acts
The Code of Civil Procedure, 1908
Order I-XLVI
Section XLI- APPEALS FROM ORIGINAL DECREES (THE FIRST SCHEDULE)

Form of appeal. What to accompany memorandum

(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the *[judgment]:

**[Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court dispense with the filing of more than one copy of the judgment.]

(2) Contents of memorandum—The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

**[(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court mav allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.]

*Subs. by Act No. 46 of 1999 section 31 for certain words (w.e.f. 1-7-2002).

**Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 1,-

(1) in sub-rule (1), after the proviso, insert the following Explanation, namely:-

"Explanation.-The copy of the decree referred to in sub-rule (1) of rule 1 above shall include a deemed decree as provided in Order XX in clause (b) in sub-rule (2) of rule 6-A."

[Vide Notification. No. 345-VIId-134, dated 8th August, 1994 (w.e.f. 22-10-1994).]

(2) in sub-rule (2), insert the following proviso, namely;-

"Provided that the Court may, for sufficient reasons, accept a memorandum of appeal without a copy of the decree appealed from if the counsel for the appellant certifies that the copy has been applied for and has not yet been issued, subject to the copy being filed subsequently within the time granted by the Court." (w.e.f. 13-12-1969)

(3) Omit sub-rule (3),

[Vide Notification. No. 552/VIId-184 dated 30th October, 1993 published in Uttar Pradesh Gazette. Pt 2, pp. 1-2, dated 1st January, 1994.]

Andhra Pradesh.-In Order XLI, for rule 1, substitute the following rule, namely:-

"(1) Every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by such number of copies of judgment as may be required by the Rules or Notifications issued by the High Court and (unless the Appellate Court dispenses with the filing of the decree or judgment or both for the time being) the decree drawn pursuant to the said judgment," (w.e.f. 2-8-1988)

Bombay.-In Order XLI, for rule 1, substitute the following rule, namely:-

"1. Form of appeal, what to accompany memorandum.-(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from-and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded:

Provided that where two or more suits have been tried together and a common judgment has been delivered, therefore and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate court may dispense with the filing of more than one copy of the judgment.

*[Explanation.-The copy of the decree-referred to in sub-rule (1) of rule 1 above shall include a deemed decree as provided in Order XX in clause (b) in sub-rule (2) of rule 6A],

(2) Contents of memorandum.-The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit:

Provided that the Court may dispense with the deposit or security where it deems fit to do so for sufficient cause.

(4) The appellant shall file along with the memorandum of appeal as many copies thereof on plain paper as there are respondents for being served on the respondents along with the notice of appeal:

Provided that the Court in its discretion may permit the appellant to file the necessary number of copies of the memorandum of appeal after the appeal is admitted, within such time as the Court may grant in this behalf." (w.e.f. 1-10-1983) and *(w.e.f. 9-12-1987)

Delhi.-Same as in Punjab, (w.e.f. 31-10-1966)

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab, (w.e.f. 25-1-1971)

Karnataka.-(i) In Order XLI, in rule 1, in sub-rule (1), at the end, insert the proviso as in Madras, item (iii);

(ii) in sub-rule (2) at the end, insert the following, namely:-

"The memorandum shall also contain a statement of the amount or value of the subject-matter in dispute in the Court of first instance and in the appeal and a statement of the amount of Court-fee paid or payable on the appeal together with the provisions of law under which it is calculated".

[Vide Notification No. ROC 2296/59, dated 5th November, 1959.] ..

(iii) insert the following sub-rule, namely:-

(3) "When an appeal is presented after the period of limitation prescribed therefore it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period, and the Court shall not proceed to deal with the appeal in any way (otherwise than by dismissing it either under rule 11 of this Order or on the ground that it is not satisfied as to the sufficiency of the reason for the delay) until notice has been given to the respondent and his objections, if any, are heard."

Kerala.-Same as in Madras items (ii), (iii) and (v) with the following modifications:-

(i) in item (ii), insert the following marginal note:-

"Copy of Judgment to be printed for appeal";

(ii) in item (iii), insert the following marginal note:-

"Power to admit appeal subject to production of copy of decree or order under special or local Act."

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XLI, in rule 1,-

(i) in sub-rule (1), before, the word "copy", insert the word "certified", (w.e.f,

25-12-1963) (ii) to sub-rule (1), insert the following words, namely:-

"The copy of the judgment shall be printed copy in every case in which the High Court has prescribed that the judgment shall be printed when a copy is applied for, for the purpose of appeal."

[Vide GO No. 933, Home (Judl), dated 3rd May, 1917.]

(iii) in sub-rule {!), insert the following proviso, namely:-

"Provided that, in appeals from decrees or order under any special or local Act to which the provisions or Parts II and III of the Limitation Act IX of 1908, do not apply and in which certified copies of such decrees or orders have not been granted within the time prescribed for preferring an appeal, the Appellate Court may admit the memorandum of appeal subject to the production of the copy of the decree or order appealed from within such time as may be fixed by the Court."

[Vide Dis. No, 2135 of 1918.]

(iv) in sub-rule (1), insert the following further proviso and Explanation, namely:-

"Provided further that when the decree appealed from is a final decree in partition suit with schedules attached thereto, the Appellate Court may dispense with the production of the copy of the decree, if the appellant filed a certified copy of the judgment appealed against and produces also a certificate from the Lower Court as to the value of the subject-matter of the proposed appeal."

[Vide P Dis. No. 97 of 1963, dated 20th March, 1963.]

"Explanation.-The words 'Appellate Court' in sub-rule (1) be deemed to include the Registrar of the High Court, where the appeal is preferred to the High Court." (w.e.f. 25-12-1963) (v) in sub-rule (2), at the end, insert the following words, namely:-

"The memorandum shall also contain a statement of the valuation of The appeal for the purposes of the Court-fees Act."

[Vide Dis. No. 2057 of 1917.]

Orissa.-Same as in Patna.

Patna,-(i) In Order XLI, in rule 1, in sub-rule (1), insert the following proviso, namely:-

"Provided that when the decree appealed from is a final decree in a partition suit and embodies the allotment papers, the Appellate Court may accept a copy of the decree containing only a portion of the allotment papers, provided further that the Appellate Court may, subsequently, on the application of the respondent require a copy of the remaining or any further portion of the allotment papers to be filed by the appellant."

(ii) insert the following as second proviso, namely:-

"Provided further that, in appeals from decrees or orders under any special or local Act to which the provisions of Parts II and III of the Limitation Act, 1908, do not apply and in which certified copies of such decrees or orders have not been granted within the time prescribed for preferring an appeal, the Appellate Court may admit the memorandum of appeal subject to the production of the copy of the decree or order appealed from within such time as may be fixed by the Court" (w.e.f. 5-4-1961).

Punjab.-In Order XLI, in rule (1), in sub-rule (1), after the proviso, insert the following further proviso, namely:-

"Provided further that the Court may permit the appeal to be filed with true copies duly authenticated by an advocate as correct."

Rajasthan.-In Order XLI, in rule 1, insert the following proviso, namely:-

"Provided that when me decree appealed from is a final decree in a partition suit, the Appellate Court may dispense with the production of the copy of the decree if the appellant filed a certified copy of the judgment appealed against."
Grounds which may be taken in appeal

The appellant shall not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court in deciding the appeal,' shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule:

Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.
Rejection or amendment of memorandum

(1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.

(2) Where the Court rejects any memorandum, it shall record the reasons for such rejection.

(3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 3, for sub-rule (1), substitute the following sub-rule, namely:-

"(1) Where the memorandum of appeal is not drawn up in the manner in hereinbefore prescribed, or accompanied by the copies mentioned in rule 1(1),.it may be rejected, or where the memorandum of appeal is not drawn up in the manner prescribed, it may be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amendment then and there."

[Vide Notification No. 2058/35{a), dated 17th June, 1916.]
*Application for condonation of delay

(1) When an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice hereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.

(3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.]

*Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.

Where there are more plaintiff or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.
Stay of proceedings and of execution

Stay by Appellate Court

(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

*[Explanation—An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.]

(2) Stay by Court which passed the decree—Where an application is made for Stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied—

(a) that substantial loss may result to the party applying for stay of execution unless the order is made;

(b) that the application has been made without unreasonable delay; and

(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

(4)**[Subject to the provisions of sub-rule (3)], the Court may make an ex pane order for stay of execution pending the hearing of the application.

***[(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.]

*Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

**Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

***Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 5, for sub-rule (5), substitute the following sub-rule, namely:-

"(5) Notwithstanding anything contained in the foregoing sub-rules where the appeal is against a decree for payment of money, the Appellate Court shall not make an order staying the execution of the decree, unless the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Appellate Court may think fit."

[Vide Notification. No. 552/VII-d-134 dated 3rd October 1993, published in Uttar Pradesh Gazette Pt. II, pp. 1-2, dated 1st January, 1994.]

Andhra Pradesh.-Same as in Madras.

Calcutta.-In Order XLI, in rule 5, in sub-rule (2), for the words "but the Appellate Court may for sufficient cause order stay of execution of such decree", substitute the words "but the Appellate Court may subject to sub-rule (3) of rule 6 of this Order, for sufficient cause order stay of execution of such decree".

[Vide Notification No. 6874-G, dated 5th October, 1948.]

Karnataka.-In Order XLI, in rule 5, in sub-rule (1), at the end, insert the following words, namely:-

"and may, when the appeal is against a preliminary decree, stay the making of a final decree in pursuance of the said preliminary decree or the execution of any such final decree if already made or when made or stay all or any of the further proceedings to be taken pursuant to such preliminary decree.

Nothing herein contained shall affect or limit the inherent power of the Court to stay other proceedings either before it or any Court subordinate to it in appropriate cases."

[Vide Notification No. ROC 2296/59, dated 5th November, 1959.]

Kerala.-(a) Same as in Madras.

(b) in sub-rule (3), insert the following proviso, namely:-

"Provided that in the case of decree charging immovable properties the Appellate Court may in its discretion dispense with such security in whole or in part."

[Vide Notification No. Bl-312/58, dated 9th June, 1959.]

Madras.-In Order XLI, in rule 5,-

(a) in sub-rule {!}, after the words "but the Appellate Court may for sufficient cause order stay of execution of such decree", insert the words "on such terms and conditions as the court may deem fit".

(b) in sub-rule (1), at the end, delete full stop and insert the following words, namely:- "and may, when the appeal is against a preliminary decree stay the making of a final decree in pursuance of the preliminary decree or the execution of any such final decree, if already made."

[Vide P Dis. No. 164 of 1932.]
Security in case of order for execution of decree appealed from

(1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security.

(2) Where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall, on the application of the judgment-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of.

HIGH COURT AMENDMENT

Calcutta.-In Order XLI, in rule 6, after sub-rule (2), insert the following sub-rule, namely:-

"(3) Where no such application has been presented to the Court which made the order as application for stay of the sale shall not be entertained by the appellate Court." (w.e.f. 5-10-1948)
[No security to be required from the Government or a public officer in certain cases. Rep. by the A.O. 1937.]
Exercise of powers in appeal from order made in execution of decree

The powers conferred by rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree.
Procedure on admission of appeal

*Registry of memorandum of appeal

(1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.

(2) Such book shall be called the register of appeal.]

*Subs. by Act No. 46 of 1999.section 31 (w.e.f. 1-7-2002).
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 cases in which the appellant is residing out of India, and is not possessed of any sufficient immovable property within 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.

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 10, in sub-rule (1), in the proviso, for the word "India" occurring for the second time substitute the words "the State".

[Vide Notification No. 43/vii-d-29, dated 1st June, 1957.]
Power to dismiss appeal without sending notice to Lower Court

*[(1) The Appellate Court 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.]

(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.]

* Subs. by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

** Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

1[11 A. *Time within which hearing 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.]

*Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).
Day for hearing appeal

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

*[(2) Such day shall be fixed with reference to the current business of the Court.]

*Subs. by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).
*Omitted.

*Omitted by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).
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.]

*Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 14, in sub-rule (1), for the words "or on his pleader in Appellate Court", substitute the following words, namely:-

"or on his pleader competent to service the notice on his behalf".

[Vide Notification No. 714-IVH-36A, dated 21st March, 1981.]

Andhra Pradesh.-In Order XLI, rule 14, in sub-rule (1), insert the following proviso, namely:-

"Provided that the Appellate Court may dispense with service of nonce on respondents who have remained absent, against whom the suit has proceeded ex parte in the Court from whose decree the appeal is preferred or who have been declared absent by the said Court."

Calcutta.-In Order XLI, in rule 14, after sub-rule. (2), insert the following sub-rule, namely:-

"(3) It shall be in the discretion of the Appellate Court to make an order, at any stage of the appeal whether on its own motion, or ex parte, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the Court whose decree is complained of or at any proceeding subsequent to the decree of that Court or on the legal representatives of any such respondent: Provided that-

(a) The Court may require notice of the appeal to be published in any newspaper or newspapers as it may direct.

(b) No such order shall percolate any such respondent or legal representative from appearing to contest the appeal."

Delhi.-Same as in Punjab.

Guahati.-Same as in Calcutta.

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Kerala.-In Order XLI, after rule 14, insert the following rule, namely:-

"14A. Substitution of letter for notice.-(i) The Court may, notwithstanding anything hereinbefore contained, substitute for notice a letter signed by the Judge or such officer as he may appoint in this behalf, where the respondent is the Presiding Officer of a House of Parliament or of a State Legislature or the Chairman of a Committee thereof or, in the opinion of the Court of a rank entitling him to such mark of consideration."

Karnataka.-Same as in Andhra Pradesh.

Madras.-In Order XLI, in rule 14, in sub-rule (1), insert the following proviso, namely:-

"Provided that the Appellate Court may dispense with service of notice on respondent who have remained absent, against whom the suit has proceeded ex parte in the Court from whose decree the appeal is preferred or who have been declared absent by the said Court."

[Vide Notification No. 221 of 1976, published in Tamil Nadu Gazette, Pt. III, Sec. 2, dated 17th November, 1976.]

Orissa.-In Order XLI, in rule 14, after sub-rule (2), insert the following sub-rule, namely:-

"(2A) Where the passing of an ex parte interlocutory order has, in the opinion of the Court, the effect of causing delay in any proceeding pending in a subordinate Court, notice shall issue simultaneously both to the respondent and to his pleader in the said proceeding in the subordinate Court, fixing a short date for return of the service. If the pleader has been served with the notice but the notice to the respondent is returned unnerved and no appearance is made on his behalf the Appellate Court may in its discretion declare the service on the pleader to be sufficient service on the respondent and shall intimate the same to the respondent by registered post at the cost of the appellant." (w.e.f. 14-5-4984)

Punjab.-In Order XIL, in rule 14,-

(i) in sub-rule (2), insert the following proviso, namely:-

"Provided that the notice shall be served on the Advocate of the party who appeared in the subordinate Court where the matter is still pending."

[Vide Notification. No. G.S.R. 39 C.A. 5/1908/S. 12257 (w.e.f. 11-4-1975).]

(ii) after sub-rule (2), insert the following sub-rule, namely:-

"(3) it shall be in the discretion of the Appellate Court to make an order, at any stage of the appeal whether on the application of any party or on its own motion, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the Court whose decree is complained of , or at any proceedings subsequent to the decree of that Court, or on the legal representatives of any such respondent: Provided that-

(a) that Court may require notice of the appeal to be published in any newspapers or in such other manner as it may direct;

(b) no such order shall preclude any such respondent or legal representative from appearing to contest the appeal."

(iii) after sub-rule (3), insert the following sub-rules, namely:-

"(4) Where the respondent or any respondents has migrated to Pakistan and he cannot be served in the ordinary way, if the appeal has arisen out of a suit to obtain relief respecting, or compensation for wrong to immovable property, the notice shall be served on the Custodian of Evacuee Property, Punjab or Delhi, as the case may be. In all other cases, the notice shall be served on such Custodian and a copy of the notice shall be sent, by registered post, to the Secretary-General to the Pakistan Government.

(5) The provisions of sub-rule (4) shall mutatis mutandis apply to appellants, who have migrated to Pakistan and who cannot be served in the ordinary way." (iv) after sub-rule (5) insert the following sub-rule, namely:-

"(6) Every notice of appeal to a respondent other than a respondent stated to be pro forma shall be accompanied by a copy of the memorandum of appeal or, if so permitted, by a concise statement."

Kerala.-In Order XIL, after rule 14, insert the following rule, namely:-

"14A. Substitution of letter for notice.-(1) The Court may, notwithstanding anything herein before contained, substitute for notice a letter signed by the Judge or such officer as he may appoint in this behalf, where the respondent is the Presiding Officer of a House of Parliament or of a State Legislature or the Chairman of a Committee thereof or, in the opinion of the Court, of a rank entitling him to such mark of consideration.

(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated in a notice and subject to the provisions of sub-rule (3), shall be treated in all respect as a notice.

(3) A letter so substituted may be sent to the respondent by post or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; and where the respondent has an agent empowered to accept service, the letter may be delivered or sent to such agent." (w.e.f. 16-7-1963).

Orissa.-Same as in Patna.

Patna.-In Order XLI, after rule 14, insert the following rule, namely:-

"14A. The Appellate Court may, in its discretion, dispense with the service of notice herein before required on a respondent, or on the legal representatives of a deceased respondent, in a case where such respondent did not appear, either at any stage of the proceedings in the Court whose decree is appealed from or in any proceedings subsequent to die decree of that Court and no relief is claimed against such opposite party or respondent or his legal representative either in the original case or appeal."
*Contents of Notice.

*Rep. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) sec. 31 (w.e.f. 1-7-2002).]

HIGH COURT AMENDMENTS

Bombay.-In Order XLI, after rule 15, insert the following rule, namely:-

"15A. Dismissal for want of prosecution.-Where after the admission of an appeal the rules or the special directions of the Court require the appellant to take any steps in the prosecution of the appeal before a fixed date, and where after due notice intimating the steps to be taken the appellant fails to take such steps within the time prescribed by the rules or allowed by the Court, the Court may direct the appeal to be dismissed for want of prosecution or may pass such other order as it thinks fit."

Madhya Pradesh.-In Order XLI, after rule 15, insert the following rule, namely:-

"15A- Failure to take necessary steps after admission of an appeal in the High Court.- Where on the admission of an appeal in the High Court, the Rules of the High Court require the appellant to take any steps in the prosecution of the appeal before a fixed date, and where, after due service of a notice intimating the steps to be taken and the date before which they mush be taken, the appellant fails to take such steps within the prescribed time, the Court may direct the appeal to be dismissed for want of prosecution or may pass such other order, as it thinks fit." (w.e.f. 16-9-1960).
Procedure on hearing

Right to begin

(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall he 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.

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 16, in sub-rule (1), for the words "On the day fixed, or on any other day to which the hearing may be adjourned", substitute the words "When the appeal is called on for hearing".

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]
Dismissal of appeal for appellants default

(1) Where on the day fixed, or on any other day 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.

*[Explanatipn—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 exparte,

* Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 17, in sub-rule (1), omit the words "on the day fixed, or on any other day to which the hearing may be adjourned" .

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]
*Dismissal of appeal where notice served in consequence of appellant's failure to deposit cost.

* Omitted by The Code of civil procedure (Amendment) Act, 1999 (Act No. 46 of 1999), section 31 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENT

Bombay.-In Order XLI, after rule 18, insert the following rule, namely:-

"18A. Dismissal for want of prosecution.-Where after the admission of an appeal the rules or the special directions of the Court require the appellant to take any steps in the prosecution of the appeal before a fixed date, and where after due notice intimating the steps to be taken the appellant fails to take such steps within the time prescribed by the rule or allowed by the Court, the Court may direct the appeal to be dismissed for want of prosecution or may pass such other order as it thinks fit." (w.e.f. 1-10-1983)
Re-admission of appeal dismissed for default

Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 *[***], 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.

*Words "or rule 18" omitted by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XLI, for rule 19, substitute the following rule, namely:-

"19. Re-admission of appeal dismissed for default.-Where an appeal is dismissed under rule 11, sub-rule (2), or rule ISA 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 any sufficient cause from appearing when the appeal was called on for hearing or in taking the necessary steps in the prosecution of the appeal 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." (w.e.f. 1-10-1983)

Delhi.-Same as in Madras.

Gujarat.-Same as in Madras.

Himachal Pradesh.-Same as in Madras. MA

Karnataka.-Same as in Madras.

Kerala.-Same as in Madras.

Madras.-In Order XLI,-

(a) renumber rule 19, as sub-rule (1) thereof, and

(b) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-

"(2) The provisions of section 5, Limitation Act, 1908, shall apply to applications under sub-rule (1)."

Madhya Pradesh.-After the words and figures "sub-rule (2)", insert the words and figures "or rule ISA", (w.e.f. 16-9-1960)

Punjab-Same as that of Madras.
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 20 re-numbered as sub-ruled) thereof by Act No. 104 of 1976 (w.e.f. 1-2-1977).

**Ins. by Act No. 104 of 976 (w.e.f. 1-2-977).
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 Appellant 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.

HIGH COURT AMENDMENTS

Andhra Pradesh.-Same as in Madhya

Pradesh. Gujarat.-Same as in Madhya Pradesh. (w.e.f. 17-8-1961)

Karnataka.-Same as in Madhya Pradesh. (w.e.f. 5-11-1959)

Kerala.-Same as in Madhya Pradesh. {w.e.f. 9-4-1959)

Madhya Pradesh.-In Order XLI,-

(a) re-number rule 21 as sub-rule (1) thereof; and

(b) after sub-rule (1), as so renumbered, insert the following sub-rule, namely:-

"(2) The provision of section 5 of the Indian Limitation Act, IX of 1908 (now section 5 of Limitation Act, 1963) shall apply to applications under sub-rule (1)." (w.e.f. 16-9-1960)

Madras.-Same as in Madhya Pradesh.
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 *[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 the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

**[(3) Omitted]

(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 appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule.

*Subs. by Act No. 104 of 1976 for certain words (w.e.f. 1-2-1977).

**Omitted by Act No. 46 of 1999, section 31 (w.e.f. 1-7-2002).

HIGH COURT AMENDMENT

Allahabad.-In Order XLI, in rule 22, in sub-rule (1), after the word "hearing" and before the word "the" insert the words "or appearance".

[Vide Notification No. 348/VII-d.168, dated 8th August, 1999 (w.e.f. 22-10-1994}.]
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 thinks 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.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 23,-

(a) after the words "and the decree is reversed in appeal", insert the words "or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it".

(b) omit the words "the Appellate Court" occurring thereafter and omit also the words "if it thinks fit", occurring after the word "may", (w.e.f. 1-6-1957)

Andhra Pradesh.-Same as in Madras.

Karnataka.-In Order XLI, for rule 23, substitute the following rule, namely:-

"23. 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, or where the Appellate Court in reversing or .setting aside the decree under appeal considers it necessary in the interests of Justice to remand the case, the Appellate Court may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded and whether any further evidence shall or shall not be taken after remand, and shall send a copy of its judgment or order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of 'civil suits, and proceed to determine the suit; the evidence, if any, recorded during the original trial shall subject to all just exceptions, be evidence during the trial after remand." (w.e.f. 5-11-1959)

Kerala.-Same as in Madras, (w.e.f. 9-6-1959)

Madras.-In Order XLI, in rule 23,-

(a) after the words "the decree is reversed in appeal", insert the words "or where the Appellate Court, in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case"; and

(b) omit the words "if it thinks fit," occurring after the words "the Appellate Court may".

Rajasthan.-In Order XLI, for rule 23, substitute the following rule, namely:-

"23. Remand of case by Appellate Court.-Where the Court from whose decree an appeal is preferred has disposed of the suit on a preliminary point and the decree is reversed in appeal, or where the Appellate Court while reversing or setting aside the decree under appeal, considers it necessary in the interests of justice to remand the case, it may 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, with direction 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." (w.e.f. 11-3-1965)

1[23A. *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.]

*Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).
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 judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which Appellate Court proceeds.
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 with 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.]

*Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).
Finding 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.

1[26A. *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 directions of that Court as to further proceedings in the suit.]

*Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).
Production of additional evidence 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 of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, 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.

*Ins. by Act No. 104 of 1976 (w.e.f 1-2-1977).
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.
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.
Judgment in appeal

Judgment when and where pronounced

*[(1)] The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.

**[(2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole j udgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment in pronounced.]

*Rule 30 re-numbered as sub-rule (1) of that rule by Act No. 104 of 1976 (w.e.f. 1-2-1977).

**Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).
Contents, date and signature of judgment

The judgment of the Appellate Court shall be in writing and shall state—

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and -

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled,

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 31, at the end, substitute a colon for the full stop and insert the following proviso, namely:-

"Provided that where the Presiding Judge pronounces his judgment by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement."

[Vide Notification No. 8799, dated 13th January, 1939]

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XLI, in rule 31, at the end, substitute a colon for the full stop and insert the following proviso, namely:-

"Provided that where the judgment is pronounced by dictation to a shorthand writer in open Court the transcript of the judgment so pronounced shall, after making such corrections therein as may be necessary, be signed by the Judge or the Judges concerned and shall bear the date of its pronouncement." (w.e.f. 1-10-1983}

Gujarat.-Same as in Allahabad.

Karnataka.-In Order XLI, in rule 31, insert the following proviso, namely:-

"Provided that where the Presiding Judge is specially empowered by the High Court to pronounce his judgments by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall after such revision as may be deemed necessary be signed by the Judge."

[Vide Notification No. ROC 2296/59, dated 5th November, 1959].

Kerala.-In Order XLI,-

(a) renumber rule 31 as sub-rule (1) thereof, and

(b) after sub-rule (1) as so remembered, insert the following sub-rules, namely:-

"(2) In cases where a judgment is not written by the Judge in his own hand, but dictated and taken down verbatim by another person, each page of the judgment shall be initialled by him.

(3) Where the judgment is pronounced by dictation to a shorthand writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge."

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

Madras.-In Order XLI, for rule 31, substitute the following rule, namely:-

"31. The judgment of the Appellate Court shall be in writing and shall state (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall bear the date on which it is pronounced and shall be signed by the Judge or the Judges concurring therein:

Provided that, where the presiding Judge is specially empowered by the High Court, to pronounce his judgment by dictation to a shorthand-writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge."

Orissa.-Same as in Allahabad, (w.e.f. 21-9-1960}

Patna.-Same as in Allahabad inserting after the words "signed by the Judge" the words "or by Judges concurring therein". Rajasthan.-In Order XLI,-

(a) renumber rule 31 as sub-rule (1) thereof; and ,:

(b) after sub-rule (1) as so renumbered, insert the following sub-rules, namely:-

"{2} Where the judgment is pronounced by dictation to a shorthand-writer in open Court, the transcript of the judgment so pronounced shall, after such revision as may be deemed necessary, be signed by the Judge and shall bear the date of its pronouncement.

(3) In cases where a judgment is not written by the Judge in his own hand, but dictated and taken down verbatim by another person, each page of the judgment shall be initialled by him." (w.e.f. 11-3-1965)
What judgment may direct

The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly.
Power of Court of Appeal

The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstandng that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection *[and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:

*[Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order.]

Illustration

A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals, and A and Y are respondents. The Appellate Court decides in favour of X. If has power to pass a decree against Y.

* Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

** Ins. by Act No. 9 of 1922, s. 4, which under s. 1(2) thereof, may be brought into force in any State by the State Government, on an specified date. The Act has been brought into force in Bombay, Bengal U.P., Punjab, Bihar, C.P. Assam, Orissa and Tamil Nadu.
Dissent to be recorded

Where the appeal is heard by more Judges than one, any Judge dissenting from the judgment of the court shall state in writing the decision or order which he thinks should be passed on the appeal, and he may state his reasons for the same.
Decree in appeal

Date and contents of decree

(1) The decree of the Appellate Court shall bear date the day of which the judgment was pronounced.

(2) The decree shall contain the number of the appeal, the names and descriptions of the appellant and respondent, and a clear specification of the relief granted or other adjudication made.

(3) The decree shall also state the amount of costs incurred in the appeal, and by whom, or out of what property, and in what proportions such costs and the costs in the suit are to be paid.

(4) The decree shall be signed and dated by the Judge or Judges who passed it:

Judge dissenting from judgment need not sign decre—Provided that where there are more Judges than one and there is a difference of opinion among them, it shall not be necessary for any Judge dissenting from the judgment of the Court to sign the decree.

HIGH- COURT AMENDMENTS

Andhra Pradesh.-Same as in Madras.

Bombay.-In Order XLI, in rule 35, in sub-rule (2), after the word "respondent/', insert the words "their registered addresses", (w.e.f. 1-10-1983}

Delhi.-Same as in Punjab.

Haryana.-Same as in Punjab.

Himachal Pradesh.-Same as in Punjab.

Kerala.-In Order XLI, in rule 35,-

(a) in sub-rule (2), at the end, omit the full stop and insert the words "in appeal as also in the decree appealed from."

(b) in sub-rule (4), insert the following proviso, namely:-

"Provided that the provisions of the sub-rule shall not apply to decrees passed by the High Court."

[Vide Notification No. Bl-3312/58, dated 9th June, 1959.]

Madras.-In Order XLI, in rule 35, in sub-rule (2), after the word "respondent," insert the words "their addresses for service,",

[Vide ROC No. 3299 B-I, dated 29th January, 1930.]

Punjab.-In Order XLI, in rule 35, insert the following further proviso, namely:-

"Provided also in the case of the High Court that the Registrar, or such other officer as may be in charge of the Judicial Department from time to time, shall sign the decree on behalf of the Judge or Judges who passed it; but that such Registrar, or such officer, shall not sign such decree on behalf of a dissenting Judge."

[Vide Notification No. 20-R-XI-Y-I, dated 29th January, 1937.]
Copies of judgment and decree to be furnished to parties

Certified copies of the judgment and decree in appeal shall be furnished to the parties on application to the Appellate Court and at their expense.
Certified copy of decree to be sent to Court whose decree appealed from

A copy of the judgment and of the decree, certified by the Appellate Court or such officer as it appoints in this behalf, shall be sent to the Court which passed the decree appealed from and shall be filed with the original proceedings in the suit, and an entry of the judgment of the Appellate Court shall be made in the register of civil suits.

HIGH COURT AMENDMENTS

Allahabad.-In Order XLI, in rule 37,-

(a) omit the words "and shall be filed with the original proceedings in the suit";

(b) insert the following para, namely:-

"Where the Appellate Court is the High Court the copies aforesaid shall be filed with the original proceedings in the Court."

(c) after rule 37, insert the following rule, namely:-

"38. (1) An address for service filed under Order VII, rule 19, or Order VIII, rule 11, or subsequently altered under Order VII, rule 24, or Order VIII, rule 12, shall hold good during all appellate proceedings arising out of the original suit or petition,

(2) Every memorandum of appeal shall state the addresses for service given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court to such address.

(3) Rule 21, 22, 23, and 24 or Order VII shall apply, so far as may be, to appellate proceedings."

Bombay.-In Order XLI, after the rule 37, insert the following rule, namely:-

"38. Registered address to hold good during appellate proceedings.-(1) The registered address filed under Order VI, Rule 14-A shall hold good during all appellate proceedings arising out of the original suit for petition, subject to any alteration under sub-rule (3) hereof.

(2) Every memorandum of appeal shall state the registered address given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court to such addresses.

(3) Sub-rules (2) and (4) (i) and (ii) of Rule 14-A of Order VI shall apply, so far as may be, to appellate proceedings." (w.e.f. 1-10-1983)

Delhi.-Same as in Punjab.

Gujarat.-In Order XLI, after rule 37, insert the following rule, namely:-

"38. Every memorandum of appeal shall state the addresses for service given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court to such addresses." (w.e.f. 17-8-1961).

Orissa.-Same as in Patna.

Patna.-In Order XLI, after rule 37, insert the following rule, namely:-

"38. (1) An address for service filed under Order VII, rule 19, or Order VIII, rule 11, or subsequently altered under Order VII, rule 22 or Order VIII, rule 12, shall hold good for all notices of appeals and all appellate proceedings of the original suit or petition.

(2) Every memorandum of appeal shall state the addresses for service given by the opposite parties in the Court below, and notices and processes shall issue from the Appellate Court for such addresses.

(3) Rule 21 and 22 of Order VII, shall apply, so for as may be, to appellate proceedings."

Punjab and Haryana.-In Order XLI, after rule 37, insert the following rule, namely:-

"38. (1) An address for service filed under Order VII, rule 19 or Order VIII, rule 11, or subsequently altered under Order VII, rule 24, or Order VIII, rule 12, shall hold good during all appellate proceedings arising out of the original suit or petition.

(2) The notice of appeal and other processes connected with proceedings therein, shall issue to the addresses mentioned in clause {!), above, and service effected at such addresses shall be as effective as if it had been made personally on the appellant or respondent, as the case may be.

(3) Rules 21, 22, 23, 24 and 25 of Order VII shall apply, so far as may be, to appellate proceedings." (w.e.f. 24-11-1927}

Allahabad.-After Order XLI insert the following Order XL1A, namely:-

"ORDER XLIA
APPEALS FROM ORIGINAL DECREES IN THE HIGH COURT

1. Extent.--The rules contained in this Order shall apply to appeals in the High Court notwithstanding anything to the contrary contained in Order XLI or any other Order and the rules contained in Order XLI shall be deemed to have been modified or repealed in their application to such appeals to the extent of their inconsistency or repugnancy or as indicated herein.

2. Service of notice on pleader.-If a party appears by a pleader all notices to him shall be served upon such pleader, unless the Court directs otherwise.

3. Hearing appear under rule 11 of Order XLI on date of presentation.-Where a memorandum of appeal is admitted on presentation the Court may, if it deems fit, proceed to hear the appeal under rule 11 or Order XLI on the date at which it is presented.

4. Day for appearance of respondent.-Unless the appeal is dismissed under rule 11 of Order XLI a day shall be fixed for the appearance of the respondent and notice thereof shall be given to him. The notice shall call upon him to enter appearance on or before the day so fixed and answer the appeal and inform him (hat the appeal shall be heard on such day thereafter as may be subsequently notified.

5. Mode of entering appearance.-The respondent shall enter appearance by filing a memorandum of appearance in such form as may be prescribed by the Court.

6. Notice of day for hearing appeal.-Notice of the day fixed for the hearing of the appeal shall be given by making an entry thereof in the day's cause list of the Court for that day and no other notice to the parties shall be necessary.

7. Application of rules 14 and 15 of Order XLI.-Rules 14 and 15 of Order XLI shall not apply in so far as they may be inconsistent with the rules of the Court regarding the nature, service or publication of notices.

8. Amendment of rules 16,17 and 18 of Order XLI.-The following amendments shall be deemed to have been made in Order XLI, namely :-[The Amendments to the rules have been incorporated in the rules themselves (see ante)].

9. Dismissal of appeal for default.-Where default is made is compliance with any rules of the Court which provide for the dismissal of an appeal for such default, the Court may dismiss the appeal.

10. Upon hearing, respondent may object to decree as if he had preferred separate appeal.-Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection within one month from the day fixed for his appearance in the notice served upon him in accordance with rule 4 or within such further time as the Court may deem fit to allow.

11. Application of rule 31 of Order XLI.-Rule 31 of Order XLI shall not apply when the Court dismisses an appeal under rule 11 of that Order."

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

Andhra Pradesh.-After Order XLI, insert Order XLIA, rules 1 to 14 which are same as in Madras except rule 11 which is as follows:-

"11. Cost of application and of adjournment.-When costs are awarded, unless the Court otherwise orders, the costs of a party appearing upon any application before the Registrar of the Court shall be Rs. 15, and the costs of appearing when the appeal is in the daily cause list for final hearing and is adjourned shall be Rs. 30. At the request of any party the Registrar shall cause the order to be drawn up and the costs to be inserted therein."

Karnataka.-After Order XLI, insert the following Order, namely:-

"ORDER XLIA
APPEALS TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDINATE COURTS

1. Rules contained in Order XLI shall apply to appeals in the High Court of Mysore with the modifications contained in this Order.

2. Where the memorandum of appeal is presented through an Advocate the memorandum shall state his address for service within the City of Bangalore and such address shall be the address for service of the appellant for all notices and processes issued in or in connection with the appeal or any Interlocutory Application in the appeal.

3. When any notice issued in an appeal preferred to the High Court fixes a date on which or a period within which the parties served with the notice shall enter appearance in the appeal such notice shall be deemed to be a notice fixing a day for hearing the appeal within the meaning of rule 12 of Order XLI.

4. The Court may direct that service of a notice of appeal or other notice of process shall be made by sending the same in a post registered cover prepaid for acknowledgment and addressed to the address for service of the party to be served which has been filed by him in the lower Court or in the High Court. A notice sent in accordance with this rule shall be deemed to be served on the day on which it would in ordinary course of post be delivered to him if the postal cover is not returned within a period of 15 days. When the cover is actually delivered to the party the postal acknowledgment purporting to contain the signature of the party may be deemed to be proof of sufficient service of the notice on the party on the day on which it is actually delivered to him. If the postal cover is returned unserved, any endorsement purporting to have been made thereon by delivery peon or other employee or officer of the postal department shall be prima facie evidence of the statements made therein.

5. If any party or his Advocate to whom a memorandum of cross-objections has been tendered has refused or neglected for three days from the date of such tender to give the acknowledgement mentioned in rule 22 (3) of Order XLI the respondent preferring such memorandum of cross-objections may file into Court an affidavit stating the facts and the Registrar may dispense with service of the copies of the memorandum.

6. (1) Rule 31 of Order XLI shall not apply to the High Court. If judgment is given orally, a shorthand note thereof shall be taken by a shorthand writer appointed for the purpose and a transcript made by him shall be signed or initialled by the Judge or Judges concurring therein after making such corrections as may be considered necessary.

(2) Sub-rule (4) of Rule 35 of Order XLI shall not apply to the High Court. Decrees of the High Court shall be signed by the Registrar, Deputy Registrar or Assistant Registrar, as indicated by the Chief Justice.

7. (1) If an appellant or petitioner fails to show due diligence in making all deposits or payments or in taking all necessary steps as required by the Rules of the High Court in the matter of the preparation of the paper book of any appeal or petition, the Registrar may in his discretion, and shall, if the maximum period of extension of the time permissible under sub-rule (9) of rule 1, Chapter IV has expired, post the appeal or petition before the appropriate Bench for orders. The Bench may either grant further time for rectifying the default or omission, or if it thinks fit dismiss the appeal or petition.

(2) Any appeal or petition dismissed under sub-rule (1) may be re-admitted by Court if an application for readmission is made accompanied by a certificate signed by the Registrar certifying that the default or omission for which the order of dismissal was passed has been rectified".

[Vide Notification No. ROC 2296/59, dated 5th November, 1959.]

Kerala.-After Order XLI, insert the following Orders namely:-

"ORDER XLIA
APPEAL TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDINATE COURTS

1. Modification in first appeals to High Court.-The rules contained in Order XLI shall apply to appeals in the High Court of Kerala with modifications contained in this order.

2. Notice fee, etc. to accompany appeal memo.-(1) The memorandum of appeal shall be accompanied by twelve printed copies of the judgment, one of such copies being a certified copy, the prescribed fees for service of notice of appeal and the receipt of the accountant of the Court of the sum prescribed by rules of Court.

(2) Time for respondent's appearance.-Notwithstanding anything contained in Rule 22 of Order XLI the period prescribed for entry of appearance by the respondent and filing by him of memorandum of cross-objections, if any, shall unless otherwise ordered, by thirty days from the service of notice upon him.

3. Appearance to be filed by respondent.-(1) If the respondent intends to appear and defend the appeal he shall within the period specified in the notice of appeal enter an appearance by filing in Court a memorandum of appearance.

(2) Penalty for default.-If a respondent fails to enter an appearance within the time and in the manner provided by the sub-rule above, he shall not be allowed to translate or print any part of the record.

(3) Petition for enlargement of time and procedure thereon.-Provided that a respondent may apply by petition for further time; and the Court may thereupon make such order as it thinks fit. The application shall be supported by evidence to be given on affidavit as to the reason for the applicant's default and notice thereof shall be given to the appellant and all parties who have entered an appearance. Unless otherwise ordered the applicant shall pay the costs of all parties appearing upon the application.

4. (1) Address for service.-(1) The memorandum of appeal and the memorandum of appearance shall state an address for service within the town of Ernakulam at which service of any notice, order or process may be made on the party filing such memorandum.

(2) When party appears in person or by pleader.-If a party appears in person, the address for service may be within the local limits of the jurisdiction of the Court from whose decree the appeal is preferred:

Provided that if such party subsequently appears by a pleader, he shall state in the vakalal an address for service within the town of Ernakulam and shall give notice thereof to each party who has appeared.

(3) Service at pleader's address.-If a party appears by a pleader, his address for service shall be that of his pleader, and all notice to the party shall be served on his pleader at that address.

5. Service by registered post.-The Court may direct that the service of a notice of appeal or other notice or process shall be made by sending the same in a registered cover prepaid for acknowledgment and addressed to the addressee for service of the party to be served, which has been filed by him in the lower Court:

Provided that, after a party has given notice of an address for service in accordance with Rule 4, service of any notice or process shall be made at such address.

6. Notice to respondents appearing separately.-If there are several respondents and all do not appear by the same pleader, they shall give notice of appearance to such of the other respondents as appear separately.

7. Procedure where record not translated and printed before hearing.-(1) If, upon a case being called on for hearing, by the Court, it appears that the record has not been translated or printed in accordance with the rules of Court, the Court may dismiss the appeal or may adjourn the hearing and direct the party in default to pay costs, or may make such order as it thinks fit.

(2) If the Court proceeds to hear the appeal, it may refuse to read or refer to any part of the record which is not included in the printed papers.

(3) When an appeal is dismissed under sub-rule (1), the appellant may apply to the Court for re-admission of the appeal; and when the Court is satisfied that there was sufficient cause for the default, it shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. (w.e.f. 20-1-1970).

8. Costs of application and of adjournment.-When costs are awarded, unless the Court otherwise orders, the costs of a party appearing upon any application before the Registrar or the Court shall be Rs. 15, and the costs of appearing when the appeal is in the daily cause list for final hearing and is adjourned shall be Rs. 30. At the request of any party the Registrar shall cause the order to be drawn up and the said to be inserted therein.

Memorandum of Objections

9. (1) Copies of memorandum of objections when to be filed.-If the acknowledgment mentioned in Rule 22 (3) of Order XLI is not filed, the respondent shall together with the memorandum of objections file so many copies thereof as there are parties affected thereby.

(2) Prescribed fees for service.-The prescribed fees for service shall be presented together with the memorandum to the Registrar." (w.e.f. 9-6-1959)

Madras.-After Order XLI, insert the following Orders, namely:-

"ORDER XLIA
APPEALS TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDINATE COURTS

1. The rules contained in Order XLI shall apply to appeals in the High Court of Judicature at Madras with the modification contained in this Order.

2. (1) The memorandum of appeal shall be accompanied by twelve printed copies of the judgment, one of such copies being a certified copy, the prescribed fees for service of notice of appeal and the receipt of the accountant of the Court for the sum prescribed by the Rules of Court.

(2) Notwithstanding anything contained in rule 22 of Order XLI the period prescribed for entry of appearance by the respondent and filing by him of Memorandum of Cross-Objections, if any, unless otherwise ordered, by thirty days from the service of notice upon him.

3. (1) If the respondent intends to appear and defend the appeal he shall within the period specified in the notice of appeal enter an appearance by filing in Court a memorandum of appearance.

(2) If a respondent fails to enter an appearance within the time and in the manner provided by the sub-rule above, he shall not be allowed to translate or print any part of the record:

Provided that a respondent may apply be petition for further time, and the Court may thereupon make such order as it thinks fit. The application shall be supported by evidence to be given on affidavit as to the reason for the applicant's default, and notice thereof shall be given to the appellant and all parties who have entered an appearance. Unless otherwise ordered the applicant shall pay the costs of all parties appearing upon the application.

4. (1) The memorandum of appeal and the memorandum of appearance shall state an address for service within the City of Madras at which service of any notice, order or process may be made on the party filling such memorandum.

(2) If a party appears in person, the address for service may be within the local limits of the jurisdiction of the Court from whose decree the appeal is preferred:

Provided that if such party subsequently appears by a pleader he shall state in the Vakalatnama an address for service within the City of Madras, and shall give notice thereof to each party who has appeared.

(3) If a party appears by a pleader, his address for service shall be that of his pleader, and all notices to the party shall be served on his pleader at that address.

5. The Court may direct that service of a notice of appeal or other notice or process shall be made by sending the same in a registered cover prepaid for acknowledgement and addressed to the addressee for service of the party to be served which has been filed by him in the lower Court:

Provided that, after a party has given notice of an address for service in accordance with rule 4, service of any notice or process shall be made at such address.

6. All notices and processes, other than a notice of appeal, shall be sufficiently served if left by a party or his pleader, or by a person employed by the pleader, or by an officer of the Court, between the hours of 11 a.m. and 5 p.m. at the address for service of the party to be served.

7. Notices which may be served by a party or his pleader under rule 6, or which are sent from the officer of the Registrar, may, unless the Court otherwise directs, be sent by registered post; and the time at which the notice so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof and posting thereof and posting thereof shall be a sufficient service.

8. If there are several respondents, and all do not appear by the same pleader, they shall give notice of appearance to such of the other respondents as appear separately.

9. A list of all cases in which notice is to be issued to the respondent shall be affixed to the Court notice board after the case has been registered.

10. (1) If upon a case being called on for hearing by the Court, it appears that the record has not been translated and printed in accordance with the rules of Court, the Court may hear the appeal or dismiss it, or may adjourn the hearing and direct the party in default to pay costs, or may make such order as it thinks fit.

(2) If the Court proceeds to hear the appeal, it may refuse to read or refer to any part of the record which is not included in the printed papers.

11. When costs are awarded, the costs of a party appearing upon any application before the Registrar shall be Rs. 25. At the request of any party the registrar shall cause the order to be drawn up and the said costs to be inserted therein. (Amended on 14-11-1963)

Memorandum of Objections

12. (1) If the acknowledgment mentioned in rule 22(3) of Order XLI is not filed, the respondent shall together with the memorandum of objections file so many copies thereof as there are parties affected thereby.

(2) The prescribed fees for service shall be presented together with the memorandum to the Registrar.

13. If any party or the pleader of any party to whom a memorandum of objections has been tendered has refused or neglected for three days from the date of tender to give the acknowledgement mentioned in rule 22(3) of Order XLI, the respondent may file an affidavit stating the facts and the Registrar may dispense with service of the copies mentioned in rule 12 (1).

14. Rule 31 of Order XLI shall not apply to the High Court. If judgment is given orally a shorthand note thereof shall be taken by an officer of the Court and a transcript made by him shall be signed or initialled by the Judge or by the Judges concurring therein after making such corrections as may be considered necessary.

ORDER XLIB
LETTERS PATENT APPEALS

1. The rules of Order XLIA shall apply, so far as may be, to appeals to the High Court of Madras under clause 15 of the Letters Patent of the said Court:

Provided that it shall not be necessary to file copies of the judgment and decree appealed from.

2. Notice of the appeal shall be given in manner prescribed by Order XLIA, rule or if the party to be served has appeared in person in manner prescribed by rule 5 of the said Order,"

[Vide GO No. 2128-Home (Judi), dated 18th October, 1917.]
     
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