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Section 1

Ins. by Act 104 of 1976, s. 87 (w.e.f. 1-2-1977) .

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1. Ins. by Act 104 of 1976, s. 87 (w.e.f. 1-2-1977) . 1 [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) 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. Mode of taking additional evidence.—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. Points to be defined and recorded.—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. Judgment when and where pronounced.— 2 [(1)] 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 may be 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. 1 [(2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced.] 31. Contents, date and signature of judgment.—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. What judgment may direct.—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. Power of Court of Appeal.—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 1 [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]: 1. Ins. by Act 104 of 1976, s. 87 (w.e.f. 1-2-1977) . 2. Rule 30 re-numbered as sub-rule (1) by s. 87, ibid. (w.e.f. 1-2-1977). 1 [Provided that the Appellate Court shall not make any order under section 35A 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 from 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. Dissent to be recorded.—Where the Appeal is heard by more judges than 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 2 35. Date and contents of decree.—(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: Judge dissenting from judgment need not sign decree.—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. Copies of judgment and decree to be furnished to parties.—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. Certified copy of decree to be sent to Court whose decree appealed from.—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 APPEALS FROM APPELLATE DECREES 1. Procedure.—The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees . 3 [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 of 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 appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100. 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.] 1. Ins. by Act 9 of 1922, s. 4, which under s. 1(2) thereof, may be brought into force in any State by the State Government on any specified date. The Act has been brought into force in Bombay, Bengal, U.P., Punjab, Bihar, C.P. Assam, Orissa and Tamil Nadu. 2. This rule is not applicable to the Chief Court of Oudh in the exercise of its appellate Jurisdiction; see the Oudh Courts Act, 1925 (U.P. 4 of 1925), s. 16(3). 3. Ins. by Act 104 of 1976, s. 88 (w.e.f. 1-2-1977) . ORDER XLIII APPEALS FROM ORDERS Appeal from orders.—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 1 [except where the procedure specified in rule 10A of Order VII has been followed]; (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 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; 2 * * * * * (f) an order under rule 21 of Order XI; 2 * * * * * (i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; (j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;