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TIPS & EXPERT ADVICE ON ESSAYS, PAPERS & COLLEGE APPLICATIONS

Stay by court which passed the decree:

Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing there from, the court which passed the decree may on sufficient cause being shown order the execution to be stayed. [Order XLI, Rule 5 (2)].

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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. [Order XLI, Rule 5 (3)].

Subject to the provisions of sub-rule (3) the court may make an ex parte order for stay of execution pending the hearing of the application. [Order XLI, Rule 5(4)].

Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security in an appeal against a decree for payment of money as specified in sub-rule (3) of Rule 1, the court shall not make an order staying the execution of the decree. [Order XLI, Rule 5 (5)].

Security in case of stay:

(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 courts 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 disposed of. [Order XLI, Rule 6].

The power conferred by Rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree. [Order XLI, Rule 8].

Cross Objection:

Where the decree passed is partly in favour of and partly against the respondent and such decree is appealed from, the respondent can take such objection to that part of the decree which is against him as he could have taken by way of a separate appeal. Such objections are called cross-objections and are filed in the form of a memorandum.

Cross Appeal:

In this connection it is necessary to understand the difference between cross-objection and cross-appeal. In a cross-appeal, also the decree of the lower court is partly in favour of and partly against the respondent, in which case both the appellant and the respondent may separately appeal to the higher court to set aside that part of the decree which affects him adversely. If each of them appeals we get a case of cross-appeals.

Thus, for example, where A sues B for Rs. 5000/- and the court awards a decree for only Rs. 3,000/-, both A and B are aggrieved by the decree and they are entitled to go in appeal. If A does not want to undergo the worry and inconvenience that continued litigation may involve, he may refrain from filing an appeal against that part of the decree which is against him, and if B appeals A may take any cross-objection to the decree which he could have taken by way of appeal.

Who can file cross-objection?

Any respondent, though he may not have appealed from any part of the decree may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour, and may also take any cross-objection to the decree which he could have taken by way of appeal.

When to be filed:

Cross-objections must be filed by the respondent 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 allow.

Service of cross-objection:

Unless the respondent files with the objection a written acknowledgement 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. -(Order XLI, Rule 22).

Effect of withdrawal or dismissal of appeal:

Where in any case in which any respondent has under Order XLI, Rule 22, filed a memorandum of objection, the original appeal is withdrawn or 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.

Cross-objections between respondents:

Ordinarily, the term “cross objection” denotes that it is directed against the appellant, but it may as well as taken against another respondent when there is community of interest between the appellant and the latter. Such a cross-objection by one respondent against a co-respondent will be entertained at the discretion of the court.

General Provisions Relating to Appeals (S. 107 & Order XLI):

Powers of the appellate Court:

An appellate court has the power

(1) To determine a case finally where the evidence on the record is sufficient;

(2) To remand a case where the lower court has disposed of the suit upon a preliminary point and the decree is reversed in appeal;

(3) To frame issues and refer them for trial where the lower court 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; and

(4) To take additional evidence or to require such evidence to be taken when the lower court has refused to admit evidence which ought to have been admitted or when 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 reason. (S. 107).

In addition to the above the appellate court has the same power and shall perform the same duties as have been conferred by the Code on courts of original jurisdiction in respect of suits instituted therein.

Travancore Forward Bank Ltd. v. Subaraya Iyer:

A contention which was not advanced before the lower court and was not even indicated in the memorandum cannot be raised for the first time in appeal when there was also no evidence on the point.

Remand of case by the appellate court:

When 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 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 readmit the suit under its original number in 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. (Order XLI, Rule 23).

On a reading of the above rule it appears that an order of remand can be made by the appellate court only when : (1) the lower court has disposed of the entire suit; (2) on a preliminary point; and (3) the decision of the lower court is reversed in appeal.

An order of remand made by an appellate court would not be covered by Order XLI, Rule 23, C.RC., unless the decision of the trial court on the preliminary point on which the suit is decided is reversed.

Where the court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the appellate court shall have the same powers as it has under Rule 23. (Order XLI, Rule 23AA).

Before proceeding further it is necessary to understand the meaning of the term “preliminary point”. A preliminary point is that point or issue the decision whereof in a particular way is sufficient to dispose of the whole suit. It is a point the decision of which avoids the full hearing of the suit, e.g., issues of limitation and res judicata.

Disposal of a suit by the trial court on one of the points involved which rendered the decision of the rest of the issues unnecessary amounts to a decision of the suit on a preliminary point and the remand comes under Order XLI, Rule 23, C.RC.

A preliminary point does not mean only a point of law or some technical defect in the frame of the suit. It means a point the decision of which is sufficient to dispose of the whole suit without the necessity of deciding other points involved in the case. It may be on factor of law.

Where the lower court decided the suit on the merits of the case, there can be no remand order by the appellate court. The suit must have been decided on a preliminary point, and it is further necessary to find that the preliminary point has been wrongly decided before a remand order can be made by the appellate court under Order XLI, Rule 23,’ C.P.C.

Under Order XLI, Rule 23 of the Code the power of remand given to the appellate court is limited by two conditions precedent, one being that the decree of the trial court is reversed and the second being that all questions arising in the case have not been decided by the trial court. Where one of the aforesaid two conditions precedent is absent an order of remand cannot be passed by the appellate court under Order XLI, Rule 23, and such an order is not appealable.

Under Order XLI, Rule 23, C.P.C. an appellate court has got power to remand the proceedings when a suit has been disposed of on a point.

The appellate court when it disagreed with the trial court on the question of limitation, was perfectly competent to remand the proceedings. Remand cannot be utilised for the purpose of filling in gaps or lacunae. If the material is not adequate or sufficient to support either the plaintiff or the defendant, it does not become the duty of the court to direct further enquiry into the facts.

In the interest of justice if the court thinks that some witness must be examined or measurement taken, it has ample power under Order XLI, Rule 27 or Rule 25 but that is quite different from utilising the power of Order XLI, Rule 23 of remand.

Inherent power of remand:

There existed some doubts whether an order of remand can be passed by an appellate court apart from the provisions of this rule. Those doubts were set at rest by the decision in the case of Ghuznavi v. The Allahabad Bank Ltd. It may sometimes happen that a party has been materially prejudiced for want of a proper trial. In such case the appellate court can remand a case under its inherent power (S. 151) for the ends of justice even though the suit has not been disposed of on a preliminary point.

It was held in the above case that the power of the appellate court with regard to a remand was not restricted to the case specified in Order XLI, Rule 23, C.P.C. and the Legislature intended to recognise such powers as were exercised by the courts under their inherent jurisdiction.

Order XLI, Rule 23, must, therefore, be read together with S. 151 which expressly preserves the inherent powers of the court to make such orders as may be necessary for the ends of justice. Rule 23A now codifies the principles enshrined in S. 151 of the Code that the appellate court has the same powers of remand as are provided in Order XLI, Rule 23, where the decree is reversed in appeal otherwise than on a preliminary point and a retrial is considered necessary.

No remand is called for when materials on the record are sufficient to decide the case. The parties should not be put to unnecessary expense if there is sufficient evidence to dispose of the case. Nor is the appellate court entitled to remand a case when it comes to a different conclusion on merits and on evidence on the record from that arrived by the trial court on the ground that the evidence was not properly directed.

New plea:

Only in exceptional cases and on good cause being shown should a case be remanded for rehearing on a new plea not raised in the pleadings nor even suggested.

An order of remand is interlocutory in nature; it is not final unless it decides some cardinal point in the suit.

Appeal:

An appeal lies against an order under Rule 23 or Rule 23A of Order XLI, but Order XLIII does not permit an appeal from an order of remand in exercise of inherent powers under S. 151, C.P.C.

Preliminary point and preliminary decree:

As pointed out, a preliminary point within the meaning of Order XLI, Rule 23, is that point or issue the decision whereof in a particular way is sufficient to dispose of the whole suit. It comprehends all points of law or fact which may have prevented the court from disposing of the case on merits. Preliminary point is thus any point the decision of which avoids the full hearing of the suit.

It is one which when decided in favour of the plaintiff permits the progress of the suit, but when decided against him concludes the suit. Such points may be issues of limitation or res judicata. A preliminary point also arises where a suit is dismissed on the ground that the plaintiff had no cause of action.

A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. A preliminary decree determines the rights of the parties with regard to some or one of the matters in controversy in the suit but does not completely dispose of the suit.

Preliminary point and Preliminary issue:

In Bai Bai v. Mahadeo Maruti, it was observed that the expression preliminary point does not mean the same thing as a ‘preliminary issue’; and that a ‘preliminary point’ means a point, the determination of which enables the trial court to pass a decree and relieves it from the necessity of determining the other points involved in the suit and even though the point decided by the trial court happens to be a point of fact, if the test is satisfied that the point was such that a decree could have been granted by the trial court on the basis of its decision on that point, then, it would be a preliminary point within the meaning of Order XLI, Rule 23. The expression is not confined to a point of law or to a point of jurisdiction.

Where appellate court may frame issues and refer them for trial:

In this connection it is necessary to notice the provisions of Order XLI, Rule 25 which provides that the lower appellate court may frame issues and refer them for trial to the court from whose decree the appeal is preferred, where the latter court 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; such court shall then proceed to take the additional evidence required and try such issues, and shall return the evidence to the appellate court together with its finding thereon and the reasons thereof.

Appeal:

An order under Rule 25 does not amount to an order remanding a case, within the meaning of Order XLIII, Rule 1 (u), governing appeals from orders and is, therefore, not appealable. An order under this rule is not a final order and the court before which the case ultimately comes up can disregard the findings returned after remand. After the return of the findings the entire appeal is open for consideration at the final hearing.

Maintainability of appeal:

Where order setting aside decree of trial Court and remanded case of decision on merits passed, held that appeal from such order falls within the category of ‘appeal from order’ as described in C.P.C. Order 43, Rule 1 (u). As such appeal was maintainable and its description by Registry as first appeal or second appeal was of no consequence.

Such evidence and findings returned by the court below form 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 finding. After the expiration of the period so fixed for presenting such memorandum the appellate court proceeds to determine the appeal. (Order XLI, Rule 26).

It is well settled by authority that a remand order cannot be passed to provide a fresh opportunity of producing evidence to a party or to provide opportunity to a party to fill up lacuna or lacunae in his evidence.

On the receipt of the finding from the lower court on the issue remitted by the appellate Court, it must hear and decide the appeal on all the points that are raised before it. The hearing cannot be confined merely to the questions arising from the finding returned by the lower appellate court on the issue remitted to it.

It is also not the practice to hear a second appeal as if the court were hearing a first appeal in respect of the findings returned by the lower appellate court on the issue remitted to it. The finding returned by the lower appellate court is like any other finding on the other issues contained in the judgment of the lower appellate court under appeal.

Where the appellate court remands a case under Rule 23 or Rule 23-A, or frames issues and refers them for trial under Rule 25, it shall fix a date for the appearance of the parties before the court from whose decree the appeal was preferred for the purpose of receiving the directions of that court as to further proceedings in the suit. (Order XLI, Rule 26-A).

It is a settled law that there is little scope of interference in an appeal against a discretionary order. Further, the additional evidence brought on record in appeal ought not to have been considered without notice to the rival party. Before staying the operation of discretionary order passed by the trial court, the appellate court must, as a matter of sound exercise of discretion, address itself to these principles as well. [Order XLI, Rule 27]

Decree in Appeal:

Date and contents of decree:

(i) The decree of the appellate court shall bear the date on which the judgment was pronounced; (ii) it 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; (iii) it 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; and (iv) finally, it shall be. signed and dated by the Judge or Judges who passed it. Where there is difference of opinion between the Judges hearing the appeal, the dissenting Judge need not sign the decree. (Order XLI, Rule 35).

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