ORDER XLV – Civil Procedure Code 1908

Civil Procedure Code 1908

 

 

ORDER XLV. APPEALS TO THE SUPREME COURT

 

ORDER XLV. APPEALS TO THE SUPREME COURT

 

1. “Decree” defined

In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

 

2. Application to Court whose decree complained of

 

1[(1)] Whoever desires to appeal the Supreme Court shall apply by petition to the Court whose decree is complained of.

 

2[(2) Every petition under sub-rule (1) shall be heard as expeditiously>as possible and endeavour shall be made to conclude the disposal of the petition within sixty days from the date on which the petition is presented to the Court under sub-rule (1).]

 

1. Rule 2 renumbered as sub-rule (1) of that rule by Act No. 104 of 1976 (w.e.f. 1-2-1977).

 

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

 

STATE AMENDMENT

 

Uttar Pradesh.-In its application to the State of Uttar Pradesh, in rule 2 after sub-rule (2) the following sub-rule be inserted, namely:-

 

“(3) Notwithstanding anything contained in sub-rule (1), whoever desires to appeal to the Supreme Court, may apply orally to the Court whose decree is to be complained of, immediately before or after the pronouncement of the judgment by the Court, for a certificate contemplated in sub-rule (1) of rule 3, and the Court may either grant or refuse the certificate, or direct the applicant to file petition as required by sub-rule (1):

 

Provided that if an oral application is entertained and rejected, no written petition under sub-rule (1) shall lie.” [U.P. Act 57 of 1976].

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-In Order XLV, for rule 2, substitute the following rules, namely:-

 

“2. Application of Court whose decree or judgment complained of.-Whoever desires to appeal to the Supreme Court under clause (1) of Article 133 of the Constitution shall apply for a certificate by petition to the Court whose decree or judgment is complained of:

 

Provided that an application may be made orally for the purpose, immediately after the judgment had been delivered:

 

Provided further where the certificate has been refused on an oral application no subsequent petition for the certificate shall He.”

 

[Vide Andhra Pradesh Gazette, Pt. II, (R.S.), p. 132, dated 10th February, 1977.]

 

Bombay.-In Order XLV, in rule 2, after sub-rule (2), insert the following sub-rule, namely:-

 

“3. Application to Court whose decree is complained of.-(1) Whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of.

 

(2) Notwithstanding anything contained in sub-rule (1) a party desiring to appeal to the Supreme Court may apply orally immediately after the pronouncement of the judgment by the Court, and the Court may grant or refuse leave to the party to appeal to the Supreme Court or direct the party to file a petition as required by sub-rule (1):

 

Provided, however, that if an oral application for leave under sub-rule (2) is made and rejected, no written petition under sub-rule (1) shall lie.” (w.e.f. 1-10-1983)

 

Madras.-In Order XLV, in rule 2, for sub-rule (!}, substitute the following sub-rule, namely:-

 

“(1) whoever desires to appeal to the Supreme Court, any, make an oral application to the Court whose decree is complained or, immediately after the pronouncement of the judgment and in such a case, it shall be heard and disposed of immediately, or may apply by petitions to the Court, whose decree is complained of.”

 

[Vide Tamil Nadu Government Gazette, Pt. III, Sec. 2, p. 136, dated 16th November, 1988.]

 

Patna.-In Order XLV, for rule 2, substitute the following rule, namely:-

“2. Application to Court whose judgment, decree or final order is complained of.-(1) Whoever desires to appeal to the Supreme Court may apply by petition to the Court whose judgment, decree or final order is complained of.

 

(2) Notwithstanding anything contained in sub-rule (!) a party desiring to appeal to the Supreme Court may apply orally immediately after the pronouncement of the judgment or final order by the Court and the Court may grant or refuse leave to the party to appeal to the Supreme Court or direct the party to file a petition as required by sub-rule (1):

 

Provided that if an oral application for leave under the sub-rule (2) is made and rejected, no written petition under sub-rule (1) shall lie.”

 

[Vide Bihar Gazette, Pt. III, p. 3, dated 11th January, 1978.]

 

3. Certificate as to value or fitness

 

1[(1) Every petition shall state the grounds of appeal and pray for a certificate-

 

(i) that the case involves a substantial question of law of general importance, and

 

(ii) that in the opinion of the Court the said question needs to be decided by th Supreme Court.]

 

(2) Upon receipt of such petition, the Court shall direct notice to be served on th opposite party to show cause why the said certificate should not be granted.

 

1. Subs. by Act No. 49 of 1973 for sub-rule (1).

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XLV, in rule 3, in sub-rule (2), at the end, omit full stop and insert the words “unless it thinks fit to refuse the certificate.”

[Vide Notification No. 1/VII-d-158, dated, 4th January, 1960.]

 

Andhra Pradesh.-In Order XLV, for rule 3, substitute the following rule, namely:-

 

“3. Contents of the petition.-Every such petition shall state the grounds of appeal and pray for a certificate to appeal to the Supreme Court under clause (1) of article 13 of the Constitution.”

 

[Vide Andhra Pradesh Gazette, Pt. II, (R.S.), p. 132, dated 10th February, 1977.]

 

Bombay.-In Order XLV, in rule 3, in sub-rule (2), at the end, omit the full stop and insert the words “unless it thinks fit to refuse the certificate.”

[Vide Notification No. P 1614/45, dated 26th June, 1951.]

 

Gujarat.-Same as in Bombay.

 

Kerala.-In Order XLV, in rule 3,-~

(i) for sub-rule (2), substitute the following sub-rule, namely:-

 

“(2) Upon receipt of such petition, the Court, after fixing a day for hearing the applicant or his pleader and hearing him, if he appears, may dismiss the petition.”

 

(ii) after sub-rule (2), insert sub-rule (3) as in Madhya Pradesh (b).

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

Madhya Pradesh.-In Order XLV, in rule 3,-

(a) for sub-rule (2), substitute the following sub-rule, namely:-

 

“(2) Upon receipt of such petition, the Court, after sending for the record, and after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day, may dismiss the petition.”

 

(b) after sub-rule (2), insert the following sub-rule, namely:-

 

“(3) Unless the Court dismisses the petition under sub-rule (2), it shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted.” (w.e.f. 16-9-1960)

 

Madras.-In Order XLV, in rule 3, in sub-rule (2), insert the following proviso, namely:-

 

“Provided that where leave to appeal is sought from a decree dismissing a proceeding in limine, notice shall not be necessary unless the Court otherwise directs.” (w.e.f. 19-6-1969)

 

Orissa.-In Order XLV, in rule 3, for sub-rule (2), substitute the following sub-rules, namely:-

 

“(2) Upon receipt of such petition, the Court may, after giving the applicant or his pleader an opportunity of being heard dismiss the petition summarily.

 

(3) Unless the Court dismisses the petition under sub-rule (2) it shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted:

 

Provided that where a party has appealed through a pleader in the High Court, service of notice on such pleader either in the manner provided in this Code or by sending a copy of such notice by registered post shall be deemed to be sufficient notice to the party.” (w.e.f. 14-5-1984)

 

4. [Consolidation of suits.]

 

Rep. by the Code of Civil Procedure (Amendment Act, 1973 (49 of 1973) s. 4 (w.e.f. 29-11-1973).

 

5. [Remission of dispute to Court of first instance.]

Rep. by s. 4, ibid, (w.e.f. 29-11-1973).}

 

6. Effect of refusal of certificate

Where such certificate is refused, the petition shall be dismissed.

 

7. Security and deposit required on grant of certificate

 

(1) Where the certificate is granted, the applicant shall, within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow; from the date of the decree complained of, or within six weeks from the date of the grant of the certificate whichever is the later date,-

 

(a) furnish security in cash or in Government securities for the costs of the respondent, and

 

(b) deposit the amount required to defray the expense of translating, transcribing indexing printing, and transmitting to the Supreme Court a correct copy of the whole record of the suit, except-

 

(1) formal documents directed to be excluded by any Rule of the Supreme Court in force for the time being;

 

(2) papers which the parties agree to exclude;

 

(3) accounts, or portions of accounts, which the officer empowered by the Court for that purpose considers unnecessary, and which the parties have not specifically asked to be included; and

 

(4) such other documents as the High Court may direct to be excluded:

 

Provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished:

 

Provided further, that no adjournment shall be granted to an opposite party to contest the nature of such security.

 

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XLV, in rule 7′,-

 

(a) in sub-rule (1), in clause (a), between the words “the respondent” and the word “, and” insert the words “except when the Government is the applicant”

 

(b) in sub-rule (1), in the first proviso, for the words “at the time of granting the certificate”, substitute the words “at any time before expiry of the period for furnishing security”.

 

[Vide Notification No. 3713-454(7), dated 20th June, 1936 and Notification No. 676/35(a)-1, dated 4th February, 1939.]

 

Andhra Pradesh.-In Order XLV, omit rule 7. (w.e.f. 4-8-1975)

 

Bombay.-In Order XLV, after rule 7 insert the following rule, namely:-

“7A. Security not to be demanded from Union or State Government or Government servant defended by Government.-No such security as is mentioned in clause (a) of sub-rule (1) of rule 7 above shall be required from the Union of India or [a State Government or where] Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to [have been] done by him in his official capacity.” (w.e.f. 1-10-1983)

 

Gujarat.-In Order XLV, after rule 7, insert the following rule, namely:-

“7A- No such security as is mentioned in clause (a) of sub-rule (1) of rule 7, shall be required from the Union of India, or, where the State Government has undertaken the defence of the suit from any public officer sued in respect of an act alleged to be done by him in his official capacity.” (w.e.f. 17-8-1961)

 

Kerala.-In Order XLV, in rule 7, after sub-rule (1) insert the following sub-rule, namely:-

 

“(2) No such security as is mentioned in rule 7(1) clause (a) shall be required from the Government or, where State Government has undertaken the defence of the suit, from any public officer and in respect of an Act purporting to be done by him in his official capacity.”

 

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

Madhya Pradesh.-In Order XLV, insert rule 7A as in Gujarat.

[Vide Notification No. 3409, dated 29th June, 1943.]

 

8. Admission of appeal and procedure thereon

 

Where such security has been furnished and deposit made to the satisfaction of the Court, the Court shall-

 

(a) declare the appeal admitted,

 

(b) give notice thereof to the respondent,

 

(c) transmit to the Supreme Court under the seal of the Court a correct copy of the said record, except as aforesaid, and

 

(d) give to either party one or more authenticated copies of any of the papers in the suit on his applying therefore and paying the reasonable expenses incurred in preparing them.

 

HIGH COURT AMENDMENTS

 

Andhra Pradesh.-In Order XLV, for rule 8, substitute the following rule, namely:-

 

“8. On receipt from the Supreme Court of the copy of the petition of appeal, the Registrar of the Court shall-

 

(i) cause notice of the lodgment of the petition of appeal to be served on the respondent personally or in such manner as provided for service of its own processes or as the Court may pre
scribe or order;

 

(ii) unless otherwise ordered by the Supreme Court, transmit to the Supreme Court at the expense of the appellant the original record of the case; and

 

(iii) as soon as notice as aforementioned is served, to send a certificate as to the date or dates on which the said notice was served.” (w.e.f. 4-8-1975)

 

Madras.-In Order XLV, in rule 8,-

 

(i) for clause (b), substitute the following clause, namely:-

 

“(b) give notice to such of the respondents as have entered appearance at the hearing, of the appeal in the High Court and such of the respondents who have entered appearance in pursuance of nonce issued under rule 3(2) supra,”;

 

(ii) in clause (c), at the end, insert the words “give notice of such transmission to the respondents specified in rule 8{b) above, and”, (w.e.f. 28-1-1959)

 

9. Revocation of acceptance of security

At any time before the admission of the appeal the Court may, upon cause shown, revoke the acceptance of any such security, and make further directions thereon.

 

HIGH COURT AMENDMENT

 

Andhra Pradesh.-In Order XLV, omit rule 9. (w.e.f. 4-8-1975)

 

9A. Power to dispense with notices in case of deceased parties

 

Nothing in these rules requiring any notice to be served on or given to an opposite party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court:

 

Provided that notices under sub-rule (2) of rule 3 and under rule 8 shall be given by affixing the same in some conspicuous place in the court-house of the Judge of the district in which the suit was originally brought, and by publication in such newspapers as the Court may direct.

 

HIGH COURT AMENDMENT

 

Kerala.-In Order XLV, in rule 9A, in the proviso after the words “sub-rule”, for the figure “(2) ” substitute the figure “(3)”.

 

[Vide Notification No. Bl-3312/58, dated 7th April, 1959.]

 

10. Power to order further security or payment

 

Where at any time after the admission of an appeal but before the transmission of the copy of the record, except as aforesaid, to the Supreme Court such security appears inadequate,

 

or further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid,

 

the Court may order the appellant to furnish, within a time to be fixed by the Court, other and sufficient security, or to make, within except as aforesaid.

 

HIGH COURT AMENDMENT

 

Andhra Pradesh.-In Order XLV, omit rule 10. (w.e.f. 4-8-1975)

11. Effect of failure to comply with order

 

Where the appellant fails to comply with such order, the proceedings shall be stayed,

 

and the appeal shall not proceed without an order in this behalf of the Supreme Court

 

and in the meantime execution of the decree appealed from shall not be stayed.

 

HIGH COURT AMENDMENT

 

Andhra Pradesh.-In Order XLV, omit rule 11. (w.e.f. 4-8-1975)

12. Refund of balance deposit

 

When the copy of the record, except as aforesaid, has been transmitted to the Supreme Court, the appellant may obtain a refund of the balance (if any) of the amount which he had deposited under rule 7.

 

HIGH COURT AMENDMENT

 

Andhra Pradesh.-In Order XLV, omit rule 12. (w.e.f. 4-8-1975)

13. Powers of Court pending appeal

 

(1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.

 

(2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit, or otherwise appearing to the court,-

 

(a) impound any movable property in dispute or any part thereof, or

 

(b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which the Supreme Court may make on the appeal, or

 

(c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of any decree or order which the Supreme Court may make on the appeal, or

 

(d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.

 

 

14. Increase of security found inadequate

 

(1) Where at any time during the pendency of the appeal the security furnished by either party appears inadequate, the Court may, on the application of the other party, require further security.

 

(2) In default of such further security being furnished as required by the Court,-

 

(a) if the original security was furnished by the appellant, the Court may, on the application of the respondent, execute the decree, appealed from as if the appellant had furnished no such security;

 

(b) if the original security was furnished by the respondent, the Court shall, so far as may be practicable stay the further execution of the decree, and restore the parties to the position in which they respectively were when the security which appears inadequate was furnished, or give such direction respectiong the subject-matter of the appeal as it thinks fit.

 

 

HIGH COURT AMENDMENT

 

Andhra Pradesh.-In Order XLV, omit rule 14. (w.e.f. 4-8-1975)

15. Procedure to enforce orders of the Supreme Court

 

(1) Whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Courts, was preferred.

 

(2) Such Court shall transmit the decree or order of the Supreme Court to the Court which passed the first decree appealed from, or to such other Court as the Supreme Court by such decree or order may direct and shall (upon the application of either party) give such directions as may be required for the execution of the same; and the Court to which the said decree or order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees.

 

1[* * *]

(4) Unless the Supreme Court otherwise directs, no decree or order of that Court shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place.

 

1. Sub-Rule (3) omitted, by A.O. 1950. HIGH COURT AMENDMENTS

 

Allahabad.-In Order XLV, in rule 15, for sub-rule (1), substitute the following sub-rule, namely:-

 

“(1) Whoever desires to obtain,-

 

(a) execution of any order of any Supreme Court; or,

 

(b) where an appeal has been dismissed by the Supreme Court for want of prosecution, an order of the Court from which the appeal to [the Supreme Court] was preferred terminating proceedings and determining the costs, shall apply to the said Court by a petition, accompanied by a certificate copy of the decree passed or order made by the Supreme Court of which execution is desired or to which the effect is to be given and a memorandum of all costs incurred in India that are claimed in pursuance thereof.”

 

[Vide Notification No. 1591/35(a), dated 7th April, 1928.]

 

Andhra Pradesh.-In Order XLV, in rule 15,-

 

(i) for sub-rule (1), substitute the following sub-rule, namely:-

 

“(1) Whoever desires to obtain execution of any appellate decree or order of the Supreme Court shall apply by petition accompanied by a certified copy of the said decree or order, to the Court of first instance.

 

Explanation.-The Court of first instance in this rule shall mean the Court in which the suit or proceedings was first instituted and where such Court has ceased to exist or to have jurisdiction to execute it, the Court which if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.”

 

(ii) omit sub-rule (2);

 

(iii) Renumber sub-rule (4) as sub-rule (2).

 

[Vide Notification No. ROC No. 6842/51-B-l, dated 9th August, 1957.]

 

Bombay.-In Order XLV, for rule 15, substitute the following rule, namely:-

“15. Procedure to enforce order of the Supreme Court.-(1) (a) Any decree passed or order made by the Supreme Court in exercise of the appellate jurisdiction including any order as to the costs of, and incidental to, any proceedings in that Court shall be enforceable in accordance with the provisions of law for the time being in force relating to the enforcement of the decrees or orders of the Court or Tribunal from which the appeal to the Supreme Court was preferred or sought to be preferred.

 

(b) The costs incurred in the High Court as incidental to the Supreme Court Appeal including the costs in the application for leave to appeal to the Supreme Court shall be recoverable where awarded, by execution of the order of the High Court in the same manner in which the decree or order of the High Court from which the appeal to the Supreme Court was preferred or sought to be preferred would have been executed.

 

(2) Unless the Supreme Court otherwise directs no decree or order of that Court shall be inoperative on the ground that no notice has been served on or given to the legal representati
ve of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing of the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court but such order shall have the same force and effect as it had been made before the death took place.” (w.e.f. 1-10-1983)

 

Karnataka.-In Order XLV, in rule 15, omit sub-rules (1) and (2). (w.e.f. 30-3-1967)

 

Madras.-Same as in Andhra Pradesh. (w.e.f. 28-5-1958)

16. Appeal from order relating to execution

 

The orders made by the Court which executes the decree or order of the Supreme Court, relating to such execution, shall be appealable in the same manner and subject to the same rules as the orders of such Court relating to the execution of its own decrees.

 

HIGH COURT AMENDMENTS

 

Allahabad.-In Order XLV, after rule 16, insert the following rule, namely:-

“17. The provisions of sub-rules (1) and (2) of rule 15 and the provisions of rule 16 shall apply mutatis mutandis, to the execution of decrees or orders for costs passed by the Supreme Court in appeals from the High Court”

[Vide Notification No. 3922/VII-d 107, dated 14th August, 1948,]

 

Andhra Pradesh.-Same as in Madras.

 

Kerala.-In Order XLV, after rule 16, insert the following rule, namely:-

 

“16A. Appeals to Federal Court.-The provisions of sub-rules (1) and (2) of rule 15 and the provisions of rule 16 shall apply, mutatis mutandis, to the execution of decrees or orders for costs passed by the Federal Court in appeals from the High Court.”

 

Madhya Pradesh.-In Order XLV, insert rule 17 which is same as in Allahabad with insertion of the words “in accordance with the declaration or order made” after the words “orders for costs passed”.

 

[Vide Notification No. 3409, dated 20th June, 1943.]

 

Madras.-(1) In Order XLV, after rule 16, insert the following rule, namely:-

 

“16A. The provisions of sub-rules (1) and (2) of rule 15 and the provisions of rule 16 shall apply mutants mutandis to the execution of decrees or orders for costs passed in the Federal Court in appeals from the High Court.”

 

[Vide ROC. No. 280 of 1945.]

 

(2) After Order XLV, insert the following Order, namely:-

 

“ORDER XLVA
APPEALS TO THE SUPREME COURT

 

1. Decree defined.-In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

 

2. Application to Court whose decree is complained of.-Whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of.

 

3. Certificate as to value or fitness.-(1) Every petition shall state the grounds of appeal and pray for a certificate either that, as regards amount or value and nature, the case fulfils the requirements of section 110, or that it is otherwise a fit one for appeal to the Supreme Court.

 

(2) Upon receipt of such petition, the Court shall direct notice to be served on the opposite party to show cause why the said certificate should not be granted:

 

Provided that where leave to appeal is sought from a decree dismissing a proceeding in limine notice shall not be necessary unless the Court otherwise directs.

 

4. Consolidation of suits.-For the purpose of pecuniary valuation, suits involving substantially the same questions for determination and decided by the same judgment may be consolidated; but suits decided by separate judgments shall not be consolidated, notwithstanding that they involve substantially the same questions for determination.

 

5. Remission of dispute to Court of first instance.-In the event of any dispute arising between the parties as to the amount or value of the subject-matter or the suit in the Court of first instance, or as to the amount or value of the subject-matter in dispute on appeal to the Supreme Court, the Court to which a petition for a certificate is made under rule 2, may, if it thinks fit, refer such dispute for report to the Court of first instance, which last mentioned Court shall proceed to determine such amount or value and shall return its report together with the evidence to the Court by which the reference was made.

 

6. Effect of refusal of certificate.-Where a certificate is refused, the petition shall be dismissed.

 

7. Powers of Court pending appeal.-(1) Notwithstanding the grant of leave to appeal to the Supreme Court, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.

 

(2) The Court may, if it thinks fit on special cause shown by any party interested in the suit, or otherwise appearing to the Court.

 

(a) impound any movable property in dispute or any party thereof, or

 

(b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of the decree appealed from or of any decree or order which the Supreme Court may make on appeal, or

 

(c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of any decree or order which the Supreme Court may make on the appeal, or

 

(d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of appeal, as it thinks fit by the appointment of a receiver or otherwise, till the petition for leave to appeal is disposed of or till the appeal is filed in the Supreme Court.

 

8. Procedure to enforce orders of the Supreme Court.-(1) whoever desires to obtain execution of any appellate decree or order of the Supreme Court shall apply by petition accompanied by a certified copy of the said decree or order to the Court of first instance.

 

Explanation.-The Court of first instance in this rule shall mean the Court in which the suit or proceeding was first instituted and where such Court has ceased to exist or to have jurisdiction to execute it, the Court, which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try the suit.

 

(2) Unless the Supreme Court otherwise directs, no decree or order of that Court shall be inoperative on the ground, that no notice has been served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree was complained of or at any proceedings subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place.

 

9. Appeal from order relating to execution.-The orders made by Court which executes the decree or order of the Supreme Court relating to such execution, shall be appealable
in the same manner as the orders of such Court relating to the execution of its own decree.” (w.e.f. 21-4-1971 and 21-8-1974)

 

17. [Appeals to Federal Court].

Rep. by the Federal Court Act, 1941 (21 of 1941), s. 2

 

HIGH COURT AMENDMENT

 

Punjab and Haryana.-For Order XLV, substitute the following Order, namely:-

 

“ORDER XLV
APPEALS TO THE SUPREME COURT

 

1. “Decree defined.- In this Order, unless there is something repugnant in the subject or context, the expression “decree” shall include a final order.

 

2. Application to Court whose decree complained of.- Whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of.

 

3.Certificate as to the fitness.-(1) Every petition shall state the grounds of appeal and pray for a certificate-

 

(i) that the case involves a substantial question of law of general importance, and (ii) that in the opinion of the Court the said question needs to be decided by the Supreme Court.

 

(2) Union receipt of such petition, the Court shall, unless it dismisses the petition at the preliminary hearing, direct notice to be served on the opposite-party to show , cause why the said certificate should not be granted. . .

 

4. [Omitted]

 

5. [Omitted]

 

6. Effect of refusal of certificate.–Where such certificate is refused, the petition shall be dismissed.

 

7. Deposit required on grant of certificate.-(1) Where the certificate is granted the applicant shall within ninety days of the order of the Supreme Court under rule 14 (1) of the Supreme Court Rules for the time being in force or such further period not exceeding sixty days as the Court may, upon cause shown, allow from the date of the Supreme Court Order under rule 14 {!), whichever is later :

 

(a) deposit the amount required to defray the expense of translating, transcribing, indexing, printing and transmitting to the Supreme Court three copies of the whole record of the suit except-

 

(1) formal documents directed to be excluded by any rule of the Supreme Court in force for the time being;

 

(2) papers which the parties agree to exclude;

 

(3) accounts or portions of accounts which the officer empowered by the Court for that purpose considers unnecessary, and which the parties have not specifically asked to be included;

 

(4) such other documents as the High Court may direct to be excluded.

 

8. Power to order further payment.- Where at any time after the admission of an appeal but before the transmission of the copy at the record to the Supreme Court further payment is required for the purpose of translating, transcribing, printing, indexing or transmitting the copy of the record, except as aforesaid, the Court may order the appellant to make, within a time to be specified by the Court, the required payment.

 

9. Effect to failure to comply with order.- Where the appellant fails to comply with such order, the proceedings shall be stayed,

 

and the appeal shall not proceed without an order in this behalf of the Supreme Court, and in the meantime execution of the decree appealed from shall not be stayed.

 

9A. Power to dispense with notice in case of deceased.- Nothing in this rules requiring any notice to be served on or given to an opposite-party or respondent shall be deemed to require a
ny notice to be served on or given to the legal representative of any deceased opposite-party or deceased respondent in a case, where such opposite-party or respondent did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court:

 

Provided that notice under sub-rule (2) of rule 3 shall be given by affixing the same on some conspicuous place in the Court-house of the Judge of the district in which the suit was originally brought, and by publication in such newspaper as the Court may direct.

 

10. Refund of balance deposit.- When the copy of the record, except as aforesaid, has been transmitted to the Supreme Court, the appellant may obtain a refund of the balance, if any, or the amount which he has deposited under rule 7.

 

11. Power of Court pending appeal.-(1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed, unless the Court otherwise directs.

 

(2) The Court may, if it thinks, fit, on special cause shown by any party interested in the suit, or otherwise appearing to the Court,-

 

(a) impound any movable property in dispute or any part thereof, or

 

(b) allow the decree appeal from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which the Supreme Court may make on the appeal, or

 

(c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks for the due performance of the decree appealed from, or of any decree or order which the Supreme Court may make on the appeal, or

 

(d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise.

 

12. Procedure to enforce orders of the Supreme Court.-(1) Whoever desires to obtain execution of any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Court was preferred.

 

(2) Such Court shall transmit the decree or order of the Supreme Court to the Court which passed the first decree appealed from, or to such other Court as the Supreme Court by such decree or order may direct, and shall upon the application of either party give directions as may be required for the execution of the same, and the Court to which the said decree or order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of the original decrees.

 

(3) Unless the Supreme Court otherwise directs, no decree or order of that Court shall be inoperative on the ground that no notice has been served on or given to the legal representative of any deceased opposite-party or deceased respondent in a case, where such opposite-party or respondent did not appear either at hearing in the Court whose decree was complained of or at any proceeding subsequent to the decree of that Court, but such order shall have the same force and effect as if it had been made before the death took place.

 

13. Appeal from order relating to execution.-The orders made by the Court which executes the decree or order of the Supreme Court, relating to such execution, shall be appealable in the same manner and subject to the same rules as the orders of such Court relating to the execution of its own decrees,”

 

[Vide G.S.R. CA/5/1908/S/122/73, dated 21st December, 1973, publ
ished in the Punjab Government Gazette, L.S. dated 4th January, 1974.]

 

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Civil Procedure Code 1908

 

Indian Laws – Bare Acts

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