Report No. 163
2.26. Clause 32 of the Amendment Bill.-
The amendments proposed in Order XLI have evoked uniform opposition from both the members of the Bar and the Bench. The main idea behind the amendments proposed in this order is to provide that an appeal can be preferred in the court which has passed the decree to be appealed against and that court is required to remit the same to the appellate court.
It was pointed out that very often the parties also asked for interim orders by way of stay or injunction or other appropriate directions on an interlocutory application filed along with the appeal and that if an appeal was to be preferred before the court which passed the decree appealed against, it may not be inclined to make any such orders against its own decree. It was also pointed out that ordinarily, the parties consulted a lawyer of the appellate court who may very often be located in a different city or town and took his opinion on the advisability of the preferring of the appeal.
It was observed that while the lawyer who had lost his, client's case in the court generally advised strongly for preferring the appeal, the appellate court lawyer might take a different view. For this and other practical reasons (viz., maintaining separate appeals register in each court apart from the appeals register in the appellate court), it was suggested that the proposal may be dropped.
2.26.1. After considering the views expressed by the participants/respondents, the Law Commission is of the opinion that the measure now suggested is a half-hearted one. Either the old system should continue or if the idea is to facilitate the filing of an appeal in the trial court (or in the court which passed the decree to be appealed against as the case may be), it should be further provided that while filing the appeal, the appellant shall serve copies of the appeal and the accompanying interlocutory applications, if any, upon the counsel for the other side in that court and that such service shall be deemed to be sufficient service upon the other side.
Such a practice is in vogue in the High Courts in the matter of preferring Letters Patent Appeals whether in civil matters or in writ petitions. For this purpose, the form of the Vakalatnama prescribed by the appropriate rules has to be modified making it obligatory upon the advocates to receive the copies of the appeal and other accompanying applications, if served upon them by the other side even after passing of the decree. The court whose decree is being appealed against should also be expressly empowered to pass appropriate interim orders for a limited period within which the appeal papers can be transmitted to the appropriate appellate court and the appellate court can deal with the same.
This suggestion has the merit of obviating the necessity of sending summons once again in appeal which normally takes a very long time. The experience shows that serving the respondents in appeals takes years in many cases which also contributes to the delay in disposal of the appeals. All this can be avoided if the service upon the advocate of the respondents (in the appeal) is treated as sufficient service upon the party. The trial court can then fix a day on which both the parties shall appear before the appellate court and from which stage the appellate court takes over the matter.
But the provision now proposed merely provides for filing of appeal in the trial court or in the court whose decree is sought to be appealed against, as the case may be, without anything more. In the opinion of the Law Commission, the proposed measure is likely to prove ineffective. The amendments may need to be reconsidered in the light of the above observations.
2.27. Law Commission has no objection to the other amendments suggested in the Code of Civil Procedure (Amendment) Bill, 1997.
Mr. Justice B.P. Jeevan Reddy (Retd.),
Ms. Justice Leila Seth (Retd.), Member.
Dr. N.M. Ghatate, Member.
Dr. Subhash C. Jain, Member-secretary.
Dated: 13th November, 1998.