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Report No. 54

Order 43, rule 1(k)

43.31. Rule 1(k) provides for appeal against an order under Order 22, rule 9, where the plaintiff or his representative applies to set aside the abatement or dismissal of the suit and this application has been refused. It needs no change.

Order 43, rule 1(1)

43.32. Rule 1(1) provides for appeal against an order under Order 22, rule 10, giving or refusing to give leave to continue suit in case of assignment of interest before final order m the suit. No change is required in this respect.

Order 43, rule 1(m)

43.33. Rule 1(m) provides for appeal against an order under Order 23, rule 3, recording or refusing to record an agreement, compromise or satisfaction.

43.34. Our views as this rule are as follows-

(1) No appeal should be allowed against an order recording or refusing to record a compromise. The trial should go on.

(2) But, in the appeal against the decree, the fact that a compromise ought to have been recorded or ought not to have been recorded, should be permitted to be taken, as a ground of appeal.

(3) The object behind the above amendment is to avoid successive appeals concerning the same suit.

Recommendation

43.35. Accordingly, we recommend that the following rule should be addedl as Order 43, rule 1D:-

"1D. (1) In an appeal against the decree in a suit passed after recording a compromise, it shall be open to the appellant to contest the decree on the ground that a compromise ought not to have been recorded in the suit;

(2) In an appeal against the decree passed in a suit in which the court has refused to record a compromise, it shall be open to the appellant to contest the decree on the ground that a compromise ought to have been recorded".

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

Order 43, rule 1(n)

43.36. Under rule 1(n), an appeal is allowed against an order rejecting an application for an order under Order 25, rule 2 to set aside the dismissal of suit for failing to furnish security. It needs no change.

Order 41, rule 1(nn) (New)-recommended

43.37. As already recommended1, the orders under Order 33, rule 5 and rule 7, rejecting the application for permission to sue as an indigent person, should be made appealable.

1. See discussion as to Order 33, rules 5 & 7.

Order 43, rule 1(o)

43.37A. Under Order 43, rule 1(o), an appeal is allowed against an order under Order 34, rules 2, 4 or 7, refusing to extend the time for the payment of mortgage-money.

Recommendation to delete Order 43, rule 1(o)

We recommend that this right of appeal should be abolished, in view of the changes proposed in the scheme of Order 34, whereunder such orders will now be passed after the decree1.

1. See discussion as to Order 34.

Order 43, rule 1(p)

43.38. Orders under Order 35, rule 4 or rule 6 in inter-pleader suits are appealable under Order 43, rule 1(p). Roughly stated, the situations covered are-

(1) where the court declares that the plaintiff is discharged from all liability and awarded costs;

(2) where the court adjudicates title to the thing claimed, on admissions or other evidence;

(3) where the court frames issues for trial, or where any claimant is made plaintiff in lieu of or in addition to the original plaintiff;

(4) where the costs of the plaintiff are given as a charge on the thing claimed or in some other effectual way. We recommend no change in this provision.

Order 43, rule 1(q)

43.39. Rule 1(q) allows appeal against orders under Order 38, rules 2, 3 or 6 regarding security by the defendant, on application by the surety to be discharged or on application by the defendant against attachment of property on showing cause for furnishing security.

It needs no change.

Order 43, rule 1(r)

43.40. Rule 1(r) allows appeal against an order under Order 39, rules 1, 2, 4 or 10, regarding temporary injunction; injunctions to restrain repetition or continuance or breach of contract or other injury of any kind, varying, discharging or setting aside an order for injunction; or where the court orders the money etc., to be deposited in court etc.

It needs no change.



The Code of Civil Procedure, 1908 Back




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