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Report No. 54

Chapter 41

Appeals from Original Decrees


41.1. Procedure as to appeals from original decrees is governed by Order 41. It is briefly as follows.

41.2. The appellant presents a memorandum, accompanied by a copy of the decree appealed against. The Code lays down rules as to the form and contents of this memorandum, and forbids the appellant to urge, without the leave of the Court, any ground of objections not set forth therein. To stop the practice of presenting appeals merely for the purpose of delaying execution, the Code declares that execution of a decree is not stayed by reason only of its having been appealed; but the appellate Court may stay execution when substantial loss may otherwise result to the appellant, and he applies without unreasonable delay and gives security for performing such decree as may ultimately be binding on him. The rules prescribe the procedure after the appellant's memorandum is admitted.

41.3. To afford the parties reasonable time for preparation and for instructing their pleaders (if they choose to employ any), a day is fixed for hearing the appeal, so as to allow the respondent sufficient time to appear and answer, and notice of the day so fixed must be published and served on him. If a party neglects to appear on the day so fixed, the consequence is judgment by default in the case of the appellant, and proceeding ex parte in the case of the respondent.

41.4. There are rules as to the judgment to be passed in appeal. In order that the litigants may understand the grounds of the decision, and exercise, if they see fit, the right of second appeal, the Code requires the judgment to state the points for determination, the decision thereupon, the reasons for the decision, and, when the decree appealed against is reversed, the relief to which the appellant is entitle1

1. This last provisio was suggested by Sir Barnes Peacock's rulin in Bell v. Gurudas Roy, 1 Ben AC 30.

Order 41, rule 1A (new)-Court fees on Appeal

41.5. One of the most important problems which a litigant has to face in respect of appeal is that of Court fees; and, having regard to its importance, we had in our Questionnaire,2 solicited views on the following question:-

"32. Would you favour the insertion of a provision to the effect that at the time of filing of the appeal, only one-fourth of the prescribed court-fee need be paid, and the remaining may be paid when the appeal is admitted".

41.6. Majority of the replies on this question favour, broadly, the suggestion made in the question. After some discussion, we have also come to the same conclusion.


41.7. We, accordingly, recommend insertion of the following rule

1A. At the time of filing of the appeal, only one fourth of the requisite court-fees need be paid, and the remainder of the court fees may be paid when the appeal is admitted under rule 11".

1. This last provision was suggested by Sir Barnes Peacock's ruling in Bell v. Gurudas Roy, 1 Ben AC 30.

2. Question 32.

Order 41, rule 3A (new)-Refund of Court Fees and Process Fees

41.8. If an appeal is rejected under any rule or dismissed as barred by limitation or for want of jurisdiction or otherwise than on the merits, then a refund of court-fees should, in our view, be allowed. Even now, this can be done under the inherent powers of the court; but a specific provision on the subject would, in our view, be useful.


41.9. Accordingly, we recommend that a new rule should be inserted in Order 41, as follows:

"3A. Where an appeal is rejected under any rule contained in this Order or dismissed as barred by limitation or for want of jurisdiction of otherwise than on merits, without notice to the opposite party, the court may allow refund of the court fees and process fees paid in respect of the appeal, to such extent as the court may consider just".

The Code of Civil Procedure, 1908 Back

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