Code of Civil Procedure, 1908. Act no. V of 1908 [21st March 1908]




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ORDER XLI

APPEALS FROMORIGINAL DECREES

1.- (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.

(2) The memorandum shall set forth concisely and under distinct heads the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

2. The appellant shall not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court under this rule:

Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had sufficient opportunity of contesting the case on that ground.

3. - (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.

(2) Where the Court rejects any memorandum it shall record the reasons for such rejection.

(3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.

4. Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.

STAY OF PRECEEDINGS AND OF EXECUTION

5. - (1) An appeal shall not operate as a stay of proceedings under a decree or order, appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

(2) Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule(2) unless the Court making it is satisfied,

a) that substantial loss may result to the party applying for stay of execution unless the order is made;
b) that the application has been made without unreasonable delay; and
c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

(4) Notwithstanding anything contained in sub-rule(3), the Court may make an ex parte order for stay of execution pending the hearing of the application.

6. - (1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security.

(2) Where an order has been made for the sale of immovable property in execution of a decree, and an appeal is pending from such decree, the sale shall on the application of the judgment debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is dispose of.

7. [No security to be required from the Government or a public officer in certain cases.] Rep. By the A.O. 1937.

8. The powers conferred by Rules 5 and 6 shall be exercise-able where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree:

[Provided that, where such appeal has been preferred by judgment-debtor he shall be required, unless the Court is of opinion that prima facie the appeal is one which must succeed owing to an error apparent on the face of the record.-

a) in the case of a decree for the payment of money, to deposit the decretal amount or to furnish security for its payment; and


b) in the case of any other decree, to furnish security for the due performance of the decree]

PROCEDURE ON ADMISSION OF APPEAL

9. - (1) Where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book o be kept for the purpose.

(2) Such book shall be called the Register of Appeals.

10.- (1) The Appellate court may, in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both:

Provided that the Court shall demand such security in all cases in which the appellant is residing out of [Pakistan] and is not possessed of any sufficient immovable property within [Pakistan] other than the property (if any) to which the appeal relates.

(2) Where such security is not furnished within such time as the Court orders the Court shall reject the appeal.

11. - (1) 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 to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

12. - (1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal.

(2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent and the time necessary for the service of the notice of appeal so as to allow the respondent sufficient time to appear and answer the appeal on such day.

13. - (1) Where the appeal is not dismissed under rule 11, the Appellate Court shall send notice of the appeal to the Court from whose decree the appeal is preferred.

(2) Where the appeal is from the decree of a Court, the records of which are not deposited in the Appellate Court, the Court receiving such notice shall send with all practicable dispatch all material papers in the suit or such papers as may be specially called for by the Appellate Court.

(3) Either party may apply in writing to the Court from whose decree the appeal is preferred specifying any of the papers in such Court of which he requires copies to be made; and copies of such papers shall be made at the expense of and given to the applicant.

14. - (1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred and shall be served on the respondent or on his pleader in the Appellate court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons and to proceedings with reference to the service thereof shall apply to the service of such notice.

(2) Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.

15. The notice to the respondent shall declare that if he does not appear in the Appellate Court on the day so fixed the appeal will be heard ex parte.


PROCEDURE ON HEARING

16.- (1) On the day fixed or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.

(2) The Court shall then if it does not dismiss the appeal at once, hear the respondent against the appeal and in such case the appellant shall be entitled to reply.

17. - (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing the Court may make an order that the appeal be dismissed.

(2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.

18. Where on the day fixed or on any other day to which the hearing may be adjourned it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit within the period fixed the sum required to defray the cost of serving the notice the Court may make an order that the appeal be dismissed


Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing.

19. - (1) Where an appeal is dismissed under rule 11, sub-rule (2) of rule 17 or rule 18 the appellant may apply to the Appellate Court for the re-admission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

[(2) The provisions of section 5 of the Limitation Act 1908 (IX of 1908) shall apply to an application for re-admission of an appeal dismissed under sub-rule (2) of rule 11 or sub-rule (1) of rule 17.]

20. Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made a party to the appeal is interested in the result of the appeal the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.

21. - (1) Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate court ro re-hear the appeal; and if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.


[(2) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule (1).]

22. - (1) Any respondent though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below but take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

(2) Such cross-objection shall be in the form of a memorandum and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal shall apply thereto.

(3) Unless the respondent files with the objection a written acknowledgment from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.

(4) Where in any case in which any respondent has under this rule filed a memorandum of objection , the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

(5) The provisions relating to pauper appeals shall, so far as they can be made applicable apply to an objection under this rule.

23. Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall subject to all just exceptions be evidence during the trial after remand.

24. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment the Appellate Court may after resettling the issues if necessary finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

25. Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required.

And such court shall proceed to try such issues, and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefore.

26. - (1) Such evidence and findings shall from part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any findings.

(2) After the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal.

27. - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the appellate Court, But if -
a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or,

a) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

The Appellate Court may allow such evidence or document to be produced or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court the Court shall record the reason for its admission.

28. Wherever additional evidence is allowed to be produced the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

29. Where additional evidence is directed or allowed to be taken the Appellate Court shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified.



JUDGMENT IN APPEAL

30. The Appellate Court after hearing the parties or their pleaders and referring to any part of the proceedings whether on appeal or in the Court from whose decree the appeal is preferred to which reference maybe considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.

31. The judgment of the Appellate Court shall be in writing and shall state -

a. the points for determination;


b. the decision thereon;
c. the reasons for the decision; and
d. where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

32. The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal the Appellate Court may pass a decree or make an order accordingly.

33. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection:

[Provided that the Appellate Court shall not make any order under section 35-A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]

Illustration

A claims a sum of money as due to him form X or Y, and in a suit against both obtains a decree against X, X appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.

34. Where the appeal is heard by more Judges that one, any Judge dissenting from the judgment of the Court shall state in writing the decision or order which he thinks should be passed on the appeal and he may state his reasons for the same.



DECREE IN APPEAL

35. - (1) The decree of the Appellate Court shall bear date the day on which the judgment was pronounced.

(2) The decree shall contain the number of the appeal the names and descriptions of the appellant and respondent and a clear specification of the relief granted or other adjudication made.

(3) The decree shall also state the amount of costs incurred in the appeal and by whom or out of what property, and in what proportions such costs and the costs in the suit are to be paid.

(4) The decree shall be signed and dated by the Judge or Judges who passed it:

Provided that where there are more Judges than one and there is a difference of opinion among them, it shall not be necessary for any Judge dissenting from the judgment of the Court to sign the decree.

36. Certified copies of the judgment and decree in appeal shall be furnished to the parties on application to the Appellate Court and at their expense.

37. A copy of the judgment and of the decree, certified by the Appellate Court or such officer as it appoints in this behalf, shall be sent to the Court which passed the decree appealed from and shall be filed with the original proceedings in the suit and an entry of the judgment of the Appellate Court shall be made in the register of civil suits.



ORDER XLII

AAPPEALS FROM APPELLATE DECREES

1. The rules of Order XLI shall apply so far as may be to appeals from Appellate decrees.




ORDER XLIII

APPEALS FROM ORDERS

1. An appeal shall lie from the following orders under the provisions of section 104, namely:-

a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court;


b) an order under rule 10 of Order VIII pronouncing judgment against a party;
c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
d) an order under the rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
e) an order under rule 4 of Order X pronouncing judgment against a party;
f) an order under rule 21 of Order XI
g) an order under rule 10 of Order XVI pronouncing judgment against a party;
h) an order under rule 20 of Order XVI pronouncing judgment against a party;
i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
[ii) an order under rule 62 or rule 103 of Order XXI relating to the right title or interest of the claimant or objector in attached property;]
j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
l) an order under rule 10 of Order XXII giving or refusing to give leave;
m) an order under rule 3 of Order XXIII recording or refusing to record an agreement compromise or satisfaction;
n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
o) an order [under rule 2 rule 4 or rule 7] of Order XXIV refusing to extend the time for the payment of mortgage money;
p) an order in interpleader suits under rule 3, rule 4 or rule 6 of Order XXXV;
q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
r) an order under rule 1, rule 2 rule 4 or rule 10 of Order XXXIX;
s) an order under rule 1 or rule 4 of Order XL;
t) an order of refusal under rule 19 of Order XLI to readmit or under rule 21 of Order XLI to re-hear an appeal;
u) an order under rule 23 of Order XLI remanding a case where an appeal would lie from the decree of the Appellate Court;
v) an order made by any Court other than a High Court refusing the grant of a certificate under rule 6 of Order XLV;
w) an order under rule 4 of Order XL:VII granting an application for review.

1. The rules of Order XLI shall apply so far as may be to appeals from orders.


[3. - (1) Where an appeal against an order is preferred during the pendency of a suit the appellant shall before presenting the appeal give notice of such appeal to the respondent or his advocate by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against [either personally or through registered post acknowledgement due and the postal or other receipt shall be filed with the memorandum of appeal for the record of the appellate Court].

(2) On receipt of notice referred to in sub-rule (1) the respondent may with the permission of the Court appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine.

4. The provisions of rule 3 shall mutatis mutandis, apply to all applications filed before an appellate Court during the pendency of a suit.]




ORDER XLIV

PAUPER APPEALS

1. Any person entitled to prefer an appeal who is unable to pay the fee required for the memorandum of appeal may present an application accompanied by a memorandum of appeal and may be allowed to appeal as a pauper subject in all matters including the presentation of such application to the provisions relating to suits by paupers in so far as those provisions are applicable:

Provided that the Court shall reject the application unless upon a perusal thereof and of the judgment and decree appealed from it sees reason to think that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust .

2. The inquiry into the pauperism of the applicant may be made either by the Appellate Court or under the orders of the Appellate Court by the Court from whose decision the appeal is preferred:

Provided that if the applicant was allowed to sue or appeal as a pauper in the Court fro whose decree the appeal is preferred no further inquiry in respect of his pauperism shall be necessary unless the Appellate Court sees cause to direct such inquiry.

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