ORDER XLII – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER XLII. APPEALS FROM APPELLATE DECREES

 

1. Procedure

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

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XLII, for rule 1, substitute the following rule, namely:-

“1. The rules of Order XLI and Order XLIA shall apply, so far as may be, to appeals from Appellate decrees, subject to the following proviso:

 

Every memorandum of appeal from an appellate decree shall be accompanied by a copy of the decree appealed from unless the Court sees fit to dispense with either or all of them-

 

(1) a copy of the judgment on which the said decree is found, –^

 

(2) a copy of the judgment of the Court of the first instance, and

 

(3) a copy of the finding of the Civil the Revenue Court, as the case may be, where an issue was remitted to such Court for decision.”

 

[Vide Notification No. 14186/VII-d-147, dated 22nd December, 1951.]

 

Calcutta.-In Order XLII, for rule 1, substitute the following rule, namely:-

 

“1. The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees:

 

Provided that every memorandum of appeal from an appellate decree shall be accompanied by a copy of the decree appealed from and also (unless the Court sees fit to dispense within any or all of them), by copies of the judgment on which the said decree is founded and of the judgment and decree of the Court of first instance.”

 

[Vide Notification No. 1750-G, dated 15th February, 1938.]

Gauhati.-Same as in Calcutta.

 

Kerala.-In Order XLII, in rule 1,-

 

(a) after the words “Order XLI”, insert the words “as modified by Order XLIA”.

 

[Vide Notification No. 1-32897/68, dated 5th January, 1970.]

 

(b) after rule 1, insert the following rule, namely:-

 

“2. Memo to be typed or printed. What to accompany memorandum.-(1) The memorandum of appeal shall be printed or type written and shall be accompanied by a certified copy of the decree and judgment of the Appellate Court and (unless the Court dispenses therewith) a certified copy of the decree and judgment of the Court of first instance.

 

(2) Copies of documents to be construed.-If any ground of appeal is based upon the construction of a document, a true copy of such document shall be presented with the memorandum of appeal.” (w.e.f. 9-6-1959)

 

Punjab.-In Order XLII, after rule 1, insert the following rule, namely:-

 

“2. In addition to the copies specified in Order XLI, rule 1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith.”

 

[Vide Notification No. 4685-G, dated 17th October, 1919 and Notification No. 138-G, dated 19th March, 1926.]

 

Rajasthan.-In Order XLII, for rule 1, substitute the following rule, namely:-

 

“1. Procedure.-The rule of Order XLI shall apply, so far as may be, to appeals from appellate decree, subject to the following proviso;

 

Every memorandum of appeal from an appellat
e decree shall be accompanied by a copy of the decree appealed from and unless the Court sees fit to dispense with either or all them-

 

(1) a copy of the judgment on which the said decree is founded,

 

(2) a copy of the judgment of the Court of the first instance, and

 

(3) a copy of the finding of the Civil or Revenue Court, as the case may be, where as issue was remitted to such Court for decision.”

 

1[2. Power of Court to direct that the appeal be heard on the question formulated by it

 

At the time of making an order under rule 11 or Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100 and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appelant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.

 

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

3. Application of rule 14 of Order XLI

Reference in sub-rule (4) of rule 14 of Order XLI to the Court of first instance shall, in the case of an appeal from an appellate decree or order, be construed as a reference to the Court to which the appeal was preferred from the original decree or order.]

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-Same as in Madras.

 

Delhi.-Same as in Punjab.

 

Haryana.-Same as in Punjab.

 

Himachal Pradesh.-Same as in Punjab.

 

Karnataka.-For Order XLII, substitute the following Order, namely:-

 

“ORDER XLII
APPEALS FROM APPELLATE DECREES

 

1. The Rules contained in Order XLI and Order XLIA shall apply, so far as may be, to appeals to the High Court of Mysore from appellate decrees with the modifications contained in this Order.

 

2. The memorandum of appeal shall be accompanied by one certified copy each of the decree and judgment of the Court of the first instance and one certified copy each of the decree and judgment of the Appellate Court.

 

3. If any ground of appeal is based upon the constriction of a document a copy of such document shall be presented with the memorandum of appeal, and if such document is not in the language of the Court a translation thereof or of a material portion thereof certified to be a true translation by the appellant’s Advocate shall be presented.”

 

Madras.-For Order XLII, substitute the following Order, namely:-

 

“ORDER XLII
APPEALS FROM APPELLATE DECREES

 

1. The rules of Order XLI and Order XLIA shall apply, so far as may be, to appeals to the High Court of Judicature at Madras from appellate decrees with the modifications contained in this Order.

 

2. (1) The memorandum of appeal shall be printed or typewritten and shall be accompanied by the following papers;

 

(2) One certified copy of the decrees of the Court of first instance and of the Appellate Court and four printed copies of each of the judgments of the said Courts, one copy of each judgment being a certified copy;

 

(3) If any ground of appeal is based upon the construction of a document, a printed or typewritten copy of such document shall be presented
with the memorandum of appeal:

 

Provided that if such document is not in the English language and the appellant appears by a pleader, an English translation of the document certified by the pleader to be a correct translation shall be presented.

 

3.1f the appellant fails to comply with this rule, the appeal may be dismissed.” (w.e.f. 18-10-1917).

 

Punjab.-In Order XLII, after rule 1, insert the following, namely:-

 

“2. In addition to the copies specified in Order XLI, rule 1, the memorandum of appeal shall be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith”, (w.e.f. 9-6-1959)

 

Kerala.-After Order XLII, insert the following Order, namely:-

 

“ORDER XLIIA
APPEALS FROM DECREES AND ORDERS OF SINGLE JUDGE TO DIVISION BENCH OF THE HIGH COURT

 

Procedure.-The Rules of Orders XLI and XLIA shall apply, so far as may be, to appeals from decrees and orders of a Single Judge to a Division Bench.” (w.e.f. 9-6-1959).

 

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Civil Procedure Code 1908

 

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