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Report No. 27

Order XL1, rule 1

1. Recommendations on certain points relating to Order XLI, rule 1 were made in the Fourteenth Report1 as follows:-

(i) In case of appeals under special enactments to which Parts II and III of the Limitation Act do not apply, exclusion of the time requisite for obtaining copies of the judgment was not allowed and yet Order XLI, rule 1 required the appellant to file copies of the judgment and decree. If parts II and III of the Limitation Act are made applicable to proceedings under any enactment, this difficulty would not arise. In the meanwhile, an amendment similar to Order XLI, rule 1 as made by Madras may be made.

(ii) In the case of partition decrees, the decree contains a number of "allotment papers" and the filing of these allotment papers put the appellant to heavy expense in obtaining copies. The Patna High Court has provided that in appeals from final decrees in partition suits containing allotment papers, the appellate court may accept copies of the decree containing only a portion of the papers. This may be adopted by other High Courts2.

(iii) The requirement that a memorandum of appeal should be accompanied by a copy of the judgment of the lower court occasions extra expense when two or three suits or appeals have been disposed of by a single judgment. In such cases, though the decrees are different, the judgment is the same and yet the appellant is put to the expense of filing more than one copy of the same judgment. By an amendment made by the Punjab High Court, this difficulty has been met by providing that when more cases than one are disposed of by a single judgment, the appellate court may dispense with the necessity of filing more than one copy.

(iv) While the memorandum is required to set forth the grounds of appeal, there is no provision corresponding to Order VII, rule 7 that it should state the relief which the appellant seeks, though Order XLI, rule 35 requires that the appellate decree shall contain a clear specification of the relief. It is sometimes difficult to know precisely what relief the appellant seeks. Order LVIII, rule 3 of the R.S.C. requires that the notice for appeal shall state the precise form of the order which the appellant proposed to ask the court of appeal to make. A similar provision may be made by amending Order XLI, rule 13.

2. So far as the first point is concerned, no amendment is necessary, since the new Limitation Act, 1963, section 29(2) practically applies all sections contained in Parts H and HI of that Act to appeals governed by special laws.

The recommendation on the second point seems to be a matter of detail, and could be carried out by the High Courts if they so desire.

The recommendation on the third point has been carried out in the proposed amendment, which follows the amendment in force in Punjab with small modifications.

As regards the recommendation on the fourth point, it may be noted that the emphasis in the Report of the Evershed Committee4 was on the grounds of appeal and not so much on the precise form of the order sought. At that time, in the Rules of the Supreme Court as in force in England, there was apparently no provision for statement of the grounds and it was in that context that the recommendation was made. It is considered unnecessary to add a provision for stating the precise form of the order, as no practical difficulty has been caused by its absence.

3. The question of condonation of delay is dealt with separately5.

4. Appeals relating to immovable property.-In the Report of the Law Commission on the Registration Act6, a somewhat revised scheme in respect of registration of decrees was suggested. Stated broadly, the main feature was, that when a plaint concerning immovable property is filed, a copy thereof should be sent to the registering officer by the court, and when the decree is passed in the suit, a copy of that also should be sent by the court. Consequentially, it was suggested that if there was an appeal, a copy of the memorandum of appeal should also be sent and so on. In this context, a recommendation was made to the effect that a memorandum of appeal relating to immovable property should have annexed to it a Schedule of immovable property.

As the main scheme suggested in that Report has not yet been implemented, this amendment suggested in the Civil Procedure Code has not been carried out.

1. 14th Report, Vol. I.

2. 14th Report, Vol. I.

3. 14th Report, Vol. I.

4. Final Report of the Committee on Supreme Court Practice and Procedure (1953), Cmd. 8878, p. 161, para. 503.

5. See Order 41, rule 3A (proposed).

6. 6th Report (Registration Act), para. 103.

Order XLI, rule 3A (New)

In the Fourteenth Report1, attention was drawn to the practice which was previously followed of admitting an appeal subject to objections as to limitations being raised at the time of hearing, where the memorandum of appeal was accompanined by a petition seeking condonation of delay under section 5, Limitation Act. This practice has been disapproved by the Privy Council, which has stressed the expediency of adopting a procedure securing at the stage of admission the final determination (after due notice) of question of limitation affecting the competence of the appeal. Following this advice, the High Courts of Andhra Pradesh, Bombay and Madras have made appropriate amendments to the rule, and the Fourteenth Report recommended that the similar amendments be made by other High Courts.

The proposed amendment carries out this recommendation, and follows the Madras Amendment, Order 41, rule 1(3) with verbal modifications. The Bombay Amendment is contained in Order XLI, rule 3A (Bombay).

1. 14th Report, Vol. I.

Code of Civil Procedure, 1908 Back

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