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Report No. 54

Order 43, rule 1(c)

43.10. Order 43, rule 1(c) needs no change. Order 43, rule 1(d)

43.11. Rule (1)(d) provides for appeal against an order under Order 9, rule 13, rejecting an application for an order to set aside a decree passed ex parte. It requires no change.

Order 43, rule 1(e)

43.12. Rule 1(e) provides for appeal against order under Order 10, rule 4, where the court postpones the hearing of a suit because the pleader refuses or is unable to answer any material question relating to the suit and directs the party to be present on'such day.

Recommendation

43.13. We recommend.-

(i) abolition of the right of appeal under rule 1(e). The ground can be taken in appeal against the main decree.

(ii) insertion of Order 43, rule 1B, as follows1:-

"1B. Where a Court passes an order against a party under Order 10, rule 4, the party may appeal against the decree in the suit on the ground that the court ought not be have passed such order".

1. To be inserted as Order 43, rule 1B.

Order 43, rule 1(f)

43.14. Under rule 1(f), an order under Order 11, rule 21, is appealable. The order so made appealable deals with non-compliance with an order for discovery etc. The effect of such non-compliance is that in the case of the plaintiff the suit is dismissed, and in case of a defendant, his defence is struck out. We have, after some discussion, come to the conclusion that this right of appeal should be retained.

Order 43, rule 1(g)

43.15. Rule 1(g) provides for appeal against an order under Order 16, rule 10 for attachment,-where a witness fails to comply with a summons to attend or produce a relevant document.

Appeal against arrest1 is dealt with separately

1. Section 104(1)(h).

43.16. The Code does contain1 a provision where under the person whose property is attached can apply to the court for vacating the attachment. This should suffice.

1. Order 16, rule 11.

Recommendation

43.17. We recommend therefore that appeal under rule 1(g), should be abolished.

Order 43, rule 1(h)

43.18. Rule 1(h) provides for appeal against an order under Order 16, rule 20. Under Order 16, rule 20, if any party to a suit refuses to give evidence when called on by the court, the court may pronounce judgment against him or make such order as it thinks fit.

43.19. We are of the view that the appeal under Order 43, rule 1(h) should be abolished. The defendant can, in an appeal from the decree passed as a result of the order, take the same point as he can take in appeal under Order 43, rule 1(h). To avoid doubts whether such a point can be taken, the matter could be provided expressly1. The idea is to reduce the present two successive appeals to one.

1. Cf. Discussion as to Order 43, rule 1(b).

43.20. We would also recommend to State Governments, that court fee for appeals against the decree in such cases should be reduced to the Court fees for appeal against orders.

Recommendation

43.21. In short, our recommendation is

(i) to delete Order 43, rule 1(h);

(ii) to reduce court fees, as indicated above1;

(iii) to insert Order 43, rule 1C, as follows2:-

"1C. Where a court pronounces judgment against a party under Order 16, rule 20, he may appeal against the decree following on the judgment on the ground that judgment ought not to have been so pronounced".

1. Para. 43.20, supra.

2. To be inserted as Order 43, rule 1C.



The Code of Civil Procedure, 1908 Back




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