Report No. 54
Order 41, rule 11 and appeals under section 47
41.21. A recommendation had been made in the 14th Report of the Commission1 to the effect that in case of appeals against orders in execution of money decrees, a restriction should be placed on the right of appeal, by requiring the appellant judgment-debtor to deposit, or at least give security for the decretal amount, as a condition precedent to the admission of the appeal. The Report referred to the proposal of the Civil Justice Committee to that effect2, and recommended the acceptance of the proposal.
1. 14th Report, Vol I.
2. Civil Justice Committee Report, (1925), p. 401.
41.22. The Civil Justice Committee had slated in its Report that after trial, it was only just that such a protection should be given to the successful decree-holder.
41.23. The Law Commission in its Report1 on the Code, after noting the above recommendations, expressed the view that such a rigid provision might cause hardship, and did not, therefore, favour an amendment. It also expressed the view that the restriction against stay, embodied in Order 41, rule 5(3) (read with Order 41, rule 8), was enough.
1. 27th Report, para. 68.
41.24. We have considered the matter at length, and have come to the conclusion that a provision emphasising the need for demanding security in such cases would prove to be useful. At the same time, we appreciate that a strict or rigid provision may cause hardship in some cases. It appears to us that while the entertaining of the appeal need not be postponed until security is furnished, the appeal should be admitted conditionally, that is to say, if security is not furnished within the time fixed by the appellate court, then the appeal should be liable to be rejected.
41.25. Accordingly, we recommend the addition of the following sub-rule to Order 41, rule 11:
"(4) Where an appeal is admitted under this rule against a determination of any such question as is referred in section 47, and the question relates to the execution, discharge or satisfaction of a decree for the payment of money, and the appeal is by the judgment-debtor, the admission of the appeal shall be conditional on the appellant furnishing security for the due performance of such decree or order as may ultimately be binding upon him; and if the appellant does not furnish such security within such time as may be fixed by the Court, the appeal shall be rejected."
41.25A. As to dismissal of appeal without notice, we have already referred1 to the earlier recommendation.
1. Para. 41.13, supra.
Order 41, rule 12A (New)-Admission of appeal restricted to certain grounds
41.26. On the question as to whether appeals (particularly, second appeals) can be admitted on.Certain grounds only, there has been some discussion.
41.27. In its Report1, one of the previous Commissions, stating that there was a conflict on the subject, observed that this difficulty could be met by an amendment of the law. It recommended the insertion of a statutory requirement providing that the judge admitting the appeal should state the point or points of law which arise for consideration in the second appeal, to ensure a stricter and better security at the stage of admission.
1. 14th Report, Vol. I.
41.28. In its Report on the Code, however, a later Commission,1 which considered this recommendation, came to the conclusion that the power of the appellate Court should not be so confined
1. 27th Report, note on section 100, para. 2.
41.29. We have examined the matter at some length; and as we take a different view in this matter, we propose to discuss the position in some detail.
41.30. An examination of judicial decisions reveals that the trend of rulings is to the effect that a Court cannot restrict the grounds on which an appeal is to be heard finally,1 though the appellant can.give up some of the grounds2 at the hearing.
1. (a) Krishnaji v. Madhusa, AIR 1934 Born 207 (211) (FB).
(b) Sukhdeo v. Gendalal, AIR 1954 MP 24 (25) (reviews cases).
(c) (1967) 1 Mys LJ 1, cited in the yearly Digest.
2. Rekha Thakur v. Ramnavelan, AIR 1936 Pat 7 (8, 9).
41.31. In this connection, attention may be invited to the observations of Asutoosh Mookherjee J. in a Calcutta case,1 where he stated as follows:-
"But in so far as the objection taken that the Appellants should be restricted to the one ground for the consideration of which the appeals were admitted, we are of opinion that it ought not to prevail. It is not competent to a Court of Appeal under rule, 12 of Order 41 of the Code to restrict the ground or grounds upon which the appeal admitted under the rule is to be heard finally; in other words, the restrictive order of this Court made at the time when the cases were heard under rule 11 of Order 41 was ultra vires. Rule 11 provides that the Appellate Court after sending for the record, if it thinks fit so to do, and 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 without sending notice of the appeal to the court against whose decree the appeal is made and without serving notice on the respondent or his pleader.
Rule 12 then provides that "Unless the appellate court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal". It is worthy of note that a day is to be fixed for hearing the appeal, that is to say, the whole appeal and not any selected grounds out of those specified in the memorandum of appeal. Consequently, all the grounds taken in the memo of appeal by the appellants are open for consideration at the final hearing, and we now proceed to examine them."
1. Lukhi Narain Serowji v. Sri Ram Chandra, (1911) 15 Cal WN 921 (922) (DB).
41.32. These observations seem to have been followed in later decisions of that High Court as well as of other High Courts; and there is, therefore, no conflict on the question whether an appeal can be admitted on some grounds only.
41.33. The conflict really is on a slightly different matter, namely, whether the admission of an appeal in part is illegal. The Bombay view1 on the subject is, that if the subject-matter is severable, this can be done. The Madras view is, that it cannot be done.2
1. Krishnaji v. Madhusa, AIR 1934 Born 207 (FB).
2. Eswariah v. Rameshwaraya, AIR 1940 Mad 483.
41.34. We think that on the first point1-namely, the admission of appeal restricted to certain grounds-the law should be altered, in the interest of simplification of procedure and avoidance of delay. On the second point2, namely-the admission of an appeal in part where severable-the law should be Glarified.
1. Para. 41.30, supra.
2. Para. 41.33, supra.
41.35. The alteration on the first point, and the clarification on the second point, should be based on the same approach, namely, the court should have power to restrict the admission to certain grounds only or to a part only (as the case may be).
41.36. Accordingly, we recommend that the following rule should be added in Order 41.
"12A. The Court may, at the time of admission of the appeal, direct that the appeal is admitted in part only or on specific grounds only, and where such an order is passed, it shall not be open to the appellant to argue the appeal on any other part or to urge any other ground of appeal, as the case may be, without the leave of the Court."
Order 41, rule 14, and dispensing with service on respondent against whom case was ex parte
41.37. With reference to service of the memorandum of appeal, one point was considered in the earlier Report1. A recommendation had been made in the Fourteenth Report2 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, a provision may be made to dispense with service of the notice of appeal. A somewhat similar recommendation had been made by the Civil Justice Committee3 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, too, have been made by the High Courts of Allahabad, Andhra Pradesh, Assam, Calcutta, Madhya Pradesh, Madras, Mysore and Punjab in Order 41, rule 14, and by the High Courts of Orissa and Patna by inserting Order 41, rule 14A.
1. 27th Report, note on Order 41, rule 14.
2. 14th Report, Vol. I.
3. Civil Justice Committee (1925) Report, p. 117, para. 27, second sub-para.
41.38. The earlier Commission noted the above position, but felt that it was unnecessary to carry out the suggested change, as not much delay is caused by the necessity of service of notice of appeal.
41.39. It appears to us, however, that such a provision would be useful, as saving delay.
41.40. We, therefore, recommend that in Order 41, rule 14, the following sub-rules should be added-
"(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 service either "in the trial court or, in the case of a second appeal, in the lower appellate Court, or has appeared in the appeal.
(5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal and defending it."