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Report No. 144

5.2.10. Recommendation.-

It appears to us that the controversy needs to be resolved and that the better course would be to adopt and incorporate a view which would apply the provisions of Order 7, rule 11(b) and (c) to appeals also. It is not fair that a hearing on the merits should be precluded merely by reasons of deficiencies in court fees. There should be inserted a suitable Explanation to section 107 for adopting the above view. In the alternative, in Order 41, a rule applying the provisions of Order 7, rule 11 mutatis mutandis to appeals can be inserted as suggested in the next paragraph. The latter course may perhaps be more convenient and we recommend its adoption.

5.2.11. We note that Order 41, rule 3(1), (so far as is material) provides of rejection of a memorandum of appeal. In rule 3, sub-rule (1A) should be added as under:

"(A1) The memorandum of appeal shall be rejected in the following cases:

(a) where the relief claimed is under-valued and the appellant, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; or

(b) where the relief claimed is properly valued, but the memorandum of appeal is written upon paper insufficiently stamped, and the appellant, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the appellant was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend the time would cause grave injustice to the appellant."

5.3. Section 136 and arrest of persons or attachment of property in outside district

5.3.1. Under section 136 of the Code, when a Court executing a decrees has to arrest a person or attach a property outside its jurisdiction, it can issue a warrant or an order for the purpose and send it through the District Court. Thereafter, the District Court shall cause the arrest or attachment to be made by its officers or by a court subordinate to itself and shall inform the court which issues the warrant or order. Other proceedings follow, as provided in the section. As regards the actual procedure to be followed, the relevant, part of section 136(1) provides that the Court to which the application is made-

"may in its discretion, issue a warrant of arrest or make an order of attachment and send to the District Court within the local limits of whose jurisdiction such person or property resides or is situated, a copy of the warrant or order, together with the probable amount of the costs of the arrest or attachment."

Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back

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