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Report No. 27

Order XLI, rule 14

A recommendation was made in the Fourteenth Report1 to the effect, that in the case of parties who had not appeared in the court below and who had not filed any address for service, provision may be made to dispense with service of notice of appeal. A somewhat similar recommendation was made by the Civil Justice Cornmittee2 also, which observed that the necessity of serving each of those respondents against whom the suit had proceeded ex parte, with notice of appeal or of any interlocutory motion, led to an unnecessary delay.

It stated, that this was more specially the case where the appellant had obtained an interim stay of execution, as it would be easy for an ex parte defendant to collude with the defendant-appellant and evade service of notice. Amendments on these lines have been made by the High Courts of Allahabad, Andhra Pradesh, Assam, Calcutta, Madhya Pradesh, Madras, Mysore and Punjab in Order XLI, rule 14 and by Orissa and Patna by inserting Order XLI, rule 14A. It is, however, felt that it is unnecessary to carry out the suggested change, as not much delay is caused by the necessity of service of notice of appeal.

1. 14th Report, Vol. I.

2. Civil Justice Committee, 1925, Report, p. 117, para. 27, second sub-para.

Order XLI, rule 18

The Fourteenth Report recommended the adoption by High Courts of some local Amendments1-2, whereunder, if on the day of hearing of the appeal, it is found that the notice to the respondent has not been served and the appellant fails to deposit the expenses of serving the notice again, the court has power to order that the appeal be rejected. This is a matter of detail which may be left to High Courts.

1. See the amendment made by the Madras High Court.

2. See 14th Report, Vol. I.

Order XLI, rule 18 and refund

A recommendation was made in the Fourteenth Report1-2, for an amendment allowing the refund of process fees where an appeal is dismissed without notice to the other party.

It is felt that this should be left to be dealt with by the practice of the courts. No amendment is therefore suggested.

1. 14th Report, Vol. I.

2. See also Order 41A, rule 2, inserted in Madras.

Code of Civil Procedure, 1908 Back

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