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ACKNOWLEDGEMENT

First of all I want to thank GOD for successfully completing this project. Then I
want to give my sincere thanks to our respected Civil Procedure Code Faculty,
Mr. B.R.N. Sharma Sir who has guided me all the way in completing this project.

Then I would like to give thanks to our librarians who have helped me all the
way in searching through the source materials, which help me, lot in completing
the project.

The list couldn’t be completed without thanking my family and my friends


who have encouraged me all the way in completing the project.

Sumit kumar suman

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METHODOLOGY OF RESEARCH

RESEARCH METHODOLOGY:

Keeping the objectives in mind, material was collected with the help of different books and then
it was compiled to make the theoretical part of the project. The methodology of my research is
doctrinaire method.

RESEARCH TOOLS:

The research of this project was carried with the help of the Internet and Library of Chanakya
National Law University.

FOOTNOTING STYLE:

In whole of my project uniform footnoting style is adopted in conformity Chanakya National


Law University, Patna footnoting style along with “blue book.”

AIMS AND OBJECTIVES

In this present project, researcher wants to know about what’s the procedure of Appeal and
provision regarding the Appeal and also want to know that general principle regarding the
present research work (Procedure on admission on appeal).

SOURCE OF DATA

In this present project has used only one source of data:

 Secondary
 Books
 Websites

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TABLE OF CONTENTS
I. INTRODUCTION…………………………………………04
1. CONCEPT OF APPEAL
 MEANING
 DEFINITION
II. GENERAL PRINICIPLES………………………………………….07
1. RULE AS TO FILLING OF APPEAL
III. PROCEDURE ON ADMISSION OF APPEAL………...09
1. PROVISION REGARDING APPEAL AND ADMISSION
IV. EFFECT ON MAINTAINABILITY OF MEMORENDUM OF
APPEAL…………………………………………….……..18
V. CONCLUSION………………………………………....…20
BIBLIODRAPHY…………………………………………21

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INTRODUCTION
The expression “Appeal” may be defined as ‘the judicial examination of the decision by a higher
court of the decision of an inferior court’. It is a complaint made to higher court that the decree
passed by a lower court is wrong. It is a remedy provided by law for getting the decree of a lower
court set aside. The right of appeal is a creature of a statute and unless it is granted clearly and
expressly it cannot be claimed by a person. Again it is vested right and can be taken away only
by a statutory provision, either expressly or by necessary implication. Appeal is a statutory right.
It is the judicial examination of the decision by a higher court of the decision of an inferior court.
It is a complaint made to the higher court that the decree made by the lower court is wrong, It is a
remedy given by the law getting the decree of the lower court set aside. Right of appeal is a
creature of the statute and unless it is granted clearly and expressly, it cannot be claimed by a
person. It is a substantive right and not merely a matter of procedure. The first appeal lies on a
higher court and the 2nd appeal lies only in the High Court and it relates to the substantial
question of law.1Every appeal shall be preferred in the form of 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 *[judgment]:

**Provided that where two or more suits


have been tried together and a common judgment has been delivered therefore and two or more
appeals are filed against any decree covered by that judgment, whether by the same appellant or
by different appellants, the appellate court may dispense with the filling of more than one copy
of the judgment.2

MEANING

Meaning is concerned an appeal is a process for requesting a formal change to a decision of


subordinate adjudication.

Appeal is provided under Section 96 of the CPC, which says that except as provided in CPC or
any other law for timbering in force, an appeal shall lie from any decree passed by court
exercising Original Jurisdiction to appeal Court authorized to hear the appeal from the decision
of the Court i.e.

1
http://www.proud2bindian.in
*substituted by the code of civil procedure (amendment) Act 1999, s 31 (i) (wef 1 July 2002) for ‘decree
appealedfrom and (unless the appellate court dispenses therwith) of the judgment on which it is founded.’
**Inserted by Amendment Act 1976, s 87 (wef 1 february 1977).
2
Order 41 (rule 1)

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Section 96 makes it clear that no appeal lies from appeal decree passed by the Court with the
consent of the parties. However, an appeal may lie from original decrees which is passed expert
i.e. without hearing of the parties. No appeal lies against the decree passed by small cause court,
if the value of the subject-matter does not exceed Rs. 10, 0004 except on appeal question of law.
Ordinarily, only appeal party to the suit adversely affected by appeal decree or any of his
representatives in interest may file an appeal. However, appeal person who is not appeal party to
the decree or order may prefer an appeal with leave of the court, if he is bound or otherwise
prejudicially affected by such decree or odder, as in such an eventuality he may be said to be an
“aggrieved person.3

DEFINITION

Nolo’s Plain- English Law Dictionary

A written petition to a higher court to modify or reverse a decision of a lower court (either a trial
court or intermediate level appellate court). An appeal begins when the loser at trial (called the
appellant) files a notice of appeal within strict time limits (often 30 days from the date of
judgment). The appellant and the appellee (the winner at trial) submit written arguments and
often make oral arguments explaining why the lower court's decision should be upheld or
overturned.4

The term “Admission” is concerned as per section 58 of Evidence act declares that the facts
admitted need not be proved. Admission may be made before the suit or after the filling of the
suit. The object of obtaining admissions is to do away with the necessity of proving facts that are
admitted; and the judgment and decree may be passed on such admission.5

So primary object of admission is to dispense with proof. The importance of admission cannot be
underestimated. It is the best and strongest piece of evidence since the facts admitted need not be
proved. It saves time, expenses and expedites trial. What a party admits to be true should be
presumed true. No exception can be taken to this proposition. An admission is not conclusive as
to the truth of the matter stated therein. It is only a piece of evidence; the weight to be attached to
such admission should depend upon circumstances under which it was made. It can be shown to
be erroneous or untrue. It is also well-settled that an admission must be taken as a whole or not at
all. It is not open to court to accept a part of it and reject the rest.

3
State of Punjab v. Amar Singh AIR 1974 SC 994
4
5
Or. 12 R. 6; see also malwa strips (p) ltd. V. jyoti Ltd., (2009) 2 SCC 426.

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But where one portion of the claim was admitted and the other portion was denied, and
both the portions were severable, it was held that the plaintiff could ask for a judgment on the
portion admitted by defendant.

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GENERAL PRINCIPLE
The expression “appeal” has not been defined in the code. According to dictionary meaning,
“appeal” is “the judicial examination of the decision by a higher court of a decision of an inferior
court”.6

Stated simply, appeal is a proceeding by which the defeated party approaches a higher authority
or court to have the decision of a lower authority or court reversed.

In Nagendra Nath Dey v. Suresh Chandra Dey7, speaking for the judicial committee of Privy
Council,sir Dinesh Mulla Stated:

“There is no definition of appeal in the code of civil procedure, but their Lordships have
no doubt that any application by a party to an appellate court, asking to set aside or reverse a
decision of a subordinate court, is an appeal within the ordinary acceptation of the term.”

Ann appeal is thus a removable of a cause from an inferior court to a superior court for the
purpose of testing the soundness of the decision of the inferior court. It is remedy provided by
law for getting the decree of the lower court set aside. In other words, it is a complaint made to
the higher court that the decree passed by the lower court is unsound and wrong. It is “a right of
entering a superior court and invoking its aid and interposition to redress an error of the court
below”

RULE AS TO FILLING OF APPEAL

A right of appeal is not a natural or inherent right. It is well settled that an appeal is a creature of
statute and there is no right of appeal unless it is given clearly and in express terms by a statute.
Whereas sometimes an appeal is a matter of right, sometimes it depends upon discretion of the
court to which such appeal lies. In the latter category of cases, the right is to apply to the court to
grant leave to file an appeal; for instance, an appeal to the supreme Court under Article 136 of
the Constitution of India.8 If a particular Act does not provide a right of appeal, it cannot be
declared ultra vires only on that ground. Again, the right of appeal is substantive right and not
merely a matter of procedure. It is a vested right and accrues to the litigant and exists as on and
from the date the lis commences and although it may be actually exercised when the adverse
judgment is pronounced, such right is to be governed by the law prevailing at the date of the
institution of the suit or proceeding and not by law that prevails at the date of its decision or at
the date of filling of the appeal. This vested right of appeal can be taken away only by a
subsequent enactment if it so provides expressly or by necessary implication, and not otherwise.

6
Chamber’s 21st centuary Dictionary (1997) at p. 59;Wharton’s law lexicon at p. 72; Concise Oxford English
Dictionary (2002) at p. 63;
7
(1931-32) 59 IA 283: AIR 1932 PC 165.
8
For detailed discussion and case law, see, V.G. Ramachandran, Law of writs (2006) Vol. II, Pt. IV, Chap.2.

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Thus, if an appeal lies against an order passed by a single judge of the High Court under section
397 and 398 of Companies Act, 1956, to the Division Bench, the said right cannot be taken away
on the ground that the High Court has not framed the necessary rules for filling such an appeal.9

9
Anant Mills Co. Ltd. V. State of Gujarat, (1975)2 SCC 175.

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PROCEDURE ON ADMISSION OF APPEAL
 Registry of memorandum of appeal
 Appellate court may require appellant to furnish security for costs

REGISTRY OF MEMORANDUM OF APPEAL

As per rule 9 of order 41 talks about the registry of memorandum of appeal- This rule divided in
two clauses. Clause-1which says that the Court from whose decree an appeal lies shall entertain
the memorandum of appeal and shall endorse thereon the date of presentation and shall register
the appeal in a book of appeal kept for that purpose; and

Clause 2 says that such book shall be called the registry of appeal.10

This rule has been substituted with the following modifications.

1. Rule 9 of Order 41 has been substituted by a new rule.


2. Under rule 9, as amended, provides that the memorandum of appeal shall be entertained
by the court against whose decree an appeal is to be filed.

Notes of Clauses- Notes on clauses of CPC (amendment) Bill, 1999 stated thus:

“This clause proposes to amend Order 41of the first schedule so as to provide for filling of
appeal on the basis of the copy of the judgment, to avoid delay as obtaining copy of decree takes
considerable time. Further to avoid delay it is proposed that an appeal may be filed in the same
court which passed the judgment and that court shall direct the parties to appeal before appellate
court.

Registration of appeal

Memorandum of appeal have to be filed in the court in which appeal is maintainable, however,
mere non-filling of the memorandum will not make the appeal defective. While considering the
provisions of order 41 rule 9 CPC, it would be clear that the memorandum of appeal has to be
filed in the court in which the appeal is maintainable as required under order 41 rule 1, CPC and
that merely because the memorandum of appeal has the not been filed under order 41, rule 9 of
CPC, will not make the appeal filled in the appellate court as defective one. In this view of this
matter the registry of the court could not have raised the objection that the provisions of order 41
rule 9 of the revised CPC should be complied with. The appellant applicant was not required to
file the fie application under order 41 rule 9 read with section 151 CPC, seeking permission to
file the appeal directly in the court and dispensing with the requirement of filling the same before
the lower appellate Court.Pt.sant Ram v.Pt. Sadhu Ram, AIR 2003 P&H.261.

10
Substituted by the code of civil procedure (Amendment) Act, 1999, section 31 (ii) (w.e.f.1.7.2002), for rule 9
before substitution stood as under:-

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Registry of memo of Appeal

Where the apprehension was that this rule requires the appeal to be filed in the court from
whose decree the appeal is sought to be filled. This is not so. The appeal is to be filed under
order 41 rule 1 in the court in which it is maintainable. All that order 41, rule 9 requires is that a
copy of memorandum of appeal which has been filed in the appellate court should also be
presented before the court against whose decree the appeal has been filed and endorsement
thereof shall be made by the decreeing court in a book called the register of appeals. Perhaps, the
intention of legislature was that the court against whom decree on appeal has been filed should
be made aware of the factum of the filling of the appeal which may or may not be relevant at
future date. Merely because a memorandum of appeal is not filed under order 41, rule 9 will not
make the appeal filed in the appellate court as a defective one. No other contentious were raised,
As already observed, if any difficulties are felt, these can be placed before the committee
constituted herein above. The committee would consider the said difficulties and make necessary
suggestions in its reports.

No retrospective effect

C.P.C (Amendment) Act, 1999, section 32(2) (v) (repeal and saving section) stipulates that the
provisions of rules 1, 9, 11, 12, 13, 15,18, 19 and 22 of order 41 of first schedule, as amended,
substituted and omitted by section 31 of the Amendment Act, 1999 shall not affect any appeal
filed before the commencement of section 31 of the Amendment Act, 1999 and every appeal
pending before the commencement of section 31 of the Amendment Act, 1999 shall be disposed
of as if section 32 of the Amendment Act, 1999 had not come in to force.

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APPELLATE COURT MAY REQUIRE APPELLANT TO FURNISH SECURITY FOR
COSTS.

This rule deals with appellate court may require appellant to furnish security for costs. It also
deals in two clauses.

(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 :

Where appellant resides out of India.--

Provided that the Court shall demand such security in all cases in which the appellant is residing
out of 1[India], and is not possessed of any sufficient immovable property within1[India] 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.

So,Rule 10 provides that the appellate court may demand from the appellant security for the
costs of appeal or of original suit or both. This power can be exercised by the appellate court
before respondent in call to appear or even thereafter. However, where the appellant is residing
out of India, such security shall be demanded by the appellate court in all cases. In which the
appellant is not having sufficient immovable property within India other than the property
involved in appeal. There is however, a distinction between an application for security for costs
of the original trial and such an application for costs of appeal. Ordinarily when it is shown that
appellant if unsuccessful would be unable through poverty to pay costs of appeal, order for
security should be made, Bijendra v. Begum11 .In this case Rankin CJ, in ordering the appellant
to deposit costs of the trial court and appeal referred to English cases and followed the English
Practice. The power to ask for security is absolutely discretionary and should not be used where
highly penal consequence would ensure. Chhagan v. Govind,12 A bonafide appellant should not
be deprived of his right merely because he is poor.

11
jan, 34 CWN 495:A 1931 C 40.
12
AIR 1930 Mad.28.

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Thus, rule 10 is not intended by the legislature to derogate from the right of appeal given by the
law to every person who is defeated in a suit in the Court of first instance.13 Under sub-rule 1 the
court may in its discretion made an order for security for costs. Under the proviso to that sub-
rule, the court is given no discretion in the matter. Similarly, under sub-rule 2 the court has no
discretion and shall reject the appeal if the security demanded either under sub-rule is not
furnished within such time as the court orders.14

The discretion under this rule is a very nice one which an


appellate Court is called upon to exercise, as giving its reasons it has to guard against expressing
any strong views on the merits which may give the impression that they have been prejudged
without hearing without hearing the other side.15

Discretion under the rule is not an absolute one.

The poverty of the person is not at all material in this regard. The discretion cast under order 41,
rule 10 is not an absolute one but is guided by judicial principle. The provision is more akin to
the principles governing attachment before judgment.16

Application of the rule.

It has been held by the Calcutta High Court that rule 10 of order 41 applies to appeals from an
order of High Court in its insolvency jurisdiction.17

It is equally applicable to an appeal from an interlocutory order.18

Original suit.

The context seems to show that in order 41, rule 10, the word is used to cover the original
application on which the judgment appealed from was given, whatever its nature.19

13
Lakhmi v. GAttee, I.L.R. 7 All. 542 : 5 A.W.N. 127.
14
Lekha v. Bhawa, I.L.R. 18 All. 101 at pp. 103, 104.
15
Ramaraju goundar v. Molayan, A.I.R. 1954 Mad. 881at p. 882.
16
Radhika devi v. Lalita Saran Sahi, 1986 B.L.J. 360 at p. 362.
17
Lakhipriya v. Raikishori, I.L.R. 48 Cal. 243
18
Ahmed v. Essa I.L.R. 13 Bom. 458.
19
Raja Pratapgir Narsinghirji v. Official Liquidator, Prahlad Mills Ltd., A.I.R. 1938 Bom. 351 at p. 352

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When security may be demanded.

The court has discretion to demand security for costs from an appellant, if it sees fit to do so, at
any time before the hearing of the appeal. In exercising discretion under rule 10 the appellate
Court may well be guided by provisions of the order 25, rule 1 of the code.

Grounds for demanding security.

The security should be demanded where the merits of the case appear to be in favour of the
respondent;20 or the appeal is unnecessary, and the appellant wishes it heard; or the appellant is
the assignee of an insolvent debtor; or his conduct in not pay in the costs awarded against him in
the first court is vexatious; or the parties have so agreed; or appellant have no property
immovable and are in impecunious circumstances and somebody else who is not a party to the
suit but has an interest in it has been defraying the costs of the litigation.

Proviso.

The mandatory provisions in the proviso are sufficiently complied with if the court orders
security to be given for the costs of the appeal.

Appeal by indigent person

It has been held by the High Courts of Allahabad, Madras, and Nagpur, that the Court has
jurisdiction to order an appellant, who has been given leave to appeal in forma pauperis to
furnish security for the costs of the respondent, where the appellant was, according to his own
statement, a pauper, and it appeared that others presumably able to furnish the necessary security
were interested in the matter, the case was considered a proper one in which security should be
given.

Delay in applying for security

Delay on the part of respondents to make the application for security may be ground for refusing
to make an order for security.

20
Moshir v. Deno, Bourke, 119.

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Extension of time

The Court has power to extend the time for furnishing security as well after as before the time
first has expired.21

Where, however, an appeal has been rejected on account of the appellant’s failure to furnish
security for costs within the time allowed by the court it is not to the court rejecting the appeal to
expend the time for giving security. If ultimately the security is not furnished, the court may
reject the appeal.

Dismissal of appeal for failure to give security

The words of the rule are mandatory and not permissive. Where, therefore, security is not
furnished within the time fixed by the court, the appeal should be rejected. The respondent need
not apply specially to have the appeal rejected. In a proper case court can dismiss the appeal only
against the respondents for whose costs security have been ordered and not furnished.

In Ladulal v. Keshavdas,22 the appellant was directed to deposit the costs of the opposite-
party in the court of civil Judge. It was held that the deposit made in the court of the District
Judge must be taken as sufficient compliance of the order.

Restoration of appeal

An appeal, although it may have been rejected by an Appellate Court under sub-rule 2 upon
failure by the appellant to furnish security demanded, may be restored on sufficient grounds at
the court’s discretion and on security being given. The correctness of the contrary view taken by
the Madras High Court is (it is respectfully submitted) open to doubt. The High Court has power
to reconsider, upon cause shown, an order rejecting an appeal under order 41, rule 10 (2) and
such a power to inherent also in subordinate courts of appeal.

Limitation

An application for the restoration of an appeal dismissed under the present rule ought to be made
within thirty days from the date of dismissal.23

21
Budri Narain v. Sheokoer, I.L.R. 17 Cal. 512.
22
A.I.R. 1969 Raj. 112.

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Enforcement of security

A bond given as security for costs may be enforced in a summary way by process of execution.

PROVISION REGARDING APPEAL

Rule 33 of order 41 empowers the appellate Court to do complete justice between the parties.
The appellate Court can reverse even those findings which are not challenged in grounds of
appeal or in cross-objections. Long delay in delivery of judgment gives rise to unnecessary
speculations in the mind of parties. The matter is remitted to the High Court for deciding the
appeal afresh on merits. The rule clearly provides that Court hearing appeal can pass 'any order
which ought to have been passed', whether or not the parties have raised any points in appeal. A
change in law subsequent to the judgment under appeal can be considered by the appellate Court.
In appropriate cases even a party who has not filed appeal but arrayed as respondent can also be
granted relief. Where no cause of action is established against a particular defendant and suit is
decreed by trial Court against all the defendants, the appellate Court in exercise of its powers
under Rule 33 can dismiss the suit as against such defendant leaving the decree intact against
other defendants.

PROVOSION REGARDING ADMISSION

Order 12,Rule 1 - Notice of admission of case

Admissions may be oral or in writing. The admission under Rule 1 of Order XII must be in
writing as notice under the Code means notice in writing (Section 142). Admissions made in
pleadings need not be proved in view of Order III, Rule 5 of the Code and Section 58 of the
Evidence Act. However, admissions made by mistake can be proved to be mistaken one. Also,
admission made must be read in its entirety. For judgment on admissions see Rule 6 of this
Order.

Rule 2 - Notice to admit documents

In Rule 2 of Order XII—

23
Articles 1, 2 of the limitation act, 1963; Goljan v. Nafar Ali, 40 I.C. 234.

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(a) insert words "without sufficient cause" between the words "neglect to admit" and the words
"after such notice" ;

(b) substitute the words "such special" for the word "the" occurring between the words "after
such notice" and the words "costs of proving" ;

(c) insert a comma and after that the words "as may be fixed by the Court not exceeding fifty
rupees for each document" between the words "any such document" and the words "shall be paid
by party" ; and

(d) delete the comma and the words "unless the Court otherwise directs" and the semi-colon
thereafter occurring between the words "whatever the result of the suit may be" and "and no
costs of proving any document".

So Where a document is admitted with reservations such as 'subject to pleas in the written
statement', a statement in the document cannot be relied upon in order to contradict its maker
under Section 145 of Evidence Act. For form of notice under this rule see Rule 3 of this Order.

Rule 4 - Notice to admit facts

The fact admitted in response to notice under this rule is binding on such party admitting the fact.
The expression 'day fixed for hearing' means day fixed for hearing of the suit. No application
under this rule can be entertained after recording of evidence or hearing of arguments when the
case is fixed for its judgment. It is not the intention of the rule to permit the party to reopen
evidence if the notice to admit a fact is not responded in affirmative. While imposing costs
against the party who failed to respond to notice under this rule for compensating the party who
had to prove the fact, the Court must adopt a judicious approach. For form of notice see next
rule.

Rule 6 - Judgment on admissions-

There can be more than one decree in the same suit, at different stages and each one of such
decree can be separate and independent. Rule 6 empowers the Court to pronounce judgment and
pass decree to the extent of admitted claims pending disposal of disputed part of the claim in suit.
In the money suits where repayment of debt or its part is admitted and only rate of interest is
disputed the Court should make use of this rule. Where other party has made a plain admission
entitling the other party to succeed as also where there is clear admission of facts in face of
which it is impossible for the party making such admission to succeed, Order XII, Rule 6 is
applicable for judgment on admission. But where admissions are conditional it must be taken

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subject to it or not at all. Similarly, erroneous admission as to pure question of law does not
entitle the party to any decree. Provisions of Rule 6 of this Order apply also to proceedings under
Arbitration Act. A suit cannot really be said to have been decreed on the basis of compromise if
it was decreed in view of the written statement filed by the defendant admitting the claim of the
plaintiff to be correct. Decree of suit in such a situation is covered by Order XII, Rule 6.

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EFFECT ON MAINTAINABILITY OF MEMORENDUM OF
APPEAL
As per rule 1 order 41, deal with the form of appeal:

(1) What to accompany memorandum?- 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 judgment:
Provided that where two or more suits have been tried together and a common judgment
has been delivered therefore and two or more appeals are filed against any decree covered
by that judgment, whether by the same appellant or by different appellants, the appellate
court may dispense with the filling of more than copy of the judgment.
(2) Contents of memorandum- 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.
(3) 24Where the appeal is against a decree for payment of money, the appellant shall, within
such time as the Appellate court may allow, deposit the amount disputed in the appeal or
furnish such security in respect thereof as the Court may think fit.

Provided that the court may dispense with the deposit or security where it deems fit to do so
for sufficient cause.

(4) The appellant shall file along with the memorandum of appeal as many copies thereof on
plain paper as there are respondents for being served on the respondents along with the
notice of appeal.

Provided that the court in its discretion may permit the appellant to file the necessary number
of copies of the memorandum of appeal after the appeal is admitted, within such time as the
court may grant in thisbehalf.

APPEAL AND MEMORANDUM OF APPEAL

Making “an appeal” the equivalent of the memorandum of appeal is not sound. Order 41 of the
code of civil procedure, the expressions “appeal” and “memorandum of appeal” are used to
denote two distinct things. The appeal is the judicial examination; the memorandum of appeal
contains the grounds on which the judicial examination is invited.

As per rule 2 of order 41 deals with the Grounds which may be taken in appeal- 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
24
Inserted by the Code of Civil Procedure (Amendment) Act, 1976, section 87 (w.e.f. 1.2.1977).

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be confined to the grounds of objections 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 a sufficient opportunity of contesting the case on that
ground.

Object of the rule – This rule is not intended to enable an appellant to take the respondent by
surprise by urging matter of which he has no notice.25

Question not raised in the memorandum cannot be raised at the time of arguments. But a party
can go outside his grounds of appeal with the leave of the court is not precluded from basing its
decision upon a ground not specifically pleaded by the either of the parties, but not beyond the
subject-matter of appeal. A general allegation in the memorandum of appeal cannot raise a point
which was not raised in the court below. It is too late to raise the point in the court of appeal
except upon terms would indemnity the appellant for the omission to raise it at the proper time.

APPLICABILITY- this provision does not apply to applications for revision.

MEMORSANDUM OF APPEAL

Memorandum of appeal contains the grounds on which judicial examination is invited. For
purpose of limitation and purposes of the rules of the court, it is required that a memorandum of
appeal shall be filed. In order that an appeal may be said to be validity presented, the following
requirements must be complied with:26

i. It must be in the form of a memorandum setting forth the grounds of objections to the
decree appealed from;
ii. It must be signed by the appellant from;
iii. It must be presented to the court or to such officer as it appoints in that behalf;
iv. The memorandum must be accompanied by a certified copy of the decree;
v. It must be accompanied by a certified copy of the judgment, unless the court
dispenses with it; and
vi. Where the appeal is against a money decree, the appellant must deposit the decretal
amount or furnish the security in the respect thereof as per the direction of the court.

The memorandum of appeal must contain the grounds of objections to the decree appealed from,
concisely, under distinct heads, without any argument or narrative and should be numbered
consecutively.

25
Bansidhar v. Sita Ram, I.L.R. 13 All. 381.: (1891) A.W.N. 147.
26
Order 41, R. 1.see also Jagat dhish v. Jawahar Lal, AIR 1961 SC 832:

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CONCLUSION
So by the all discussion this is conclusion that the term “appeal” means ‘judicial examination of
the decision by a higher court of the decision of an inferior court’27. A right of appeal is not a
natural or inherent right. It is well-settled that an appeal is a creature of statute and there is no
right of appeal unless it is given clearly and in express terms by a statute. Whereas sometimes an
appeal is a matter of right, sometimes its depends upon discretion of the court to which such
appeal lies. The right of appeal is substantive and vested right and accrues in favour of the
litigant on the day the lis commences and although it may be actually exercised only after an
adverse judgment is pronounced, such a right is governed by the law prevailing at the date of
institution of the suit and not by the law in force at the time when the judgment is rendered or an
appeal is preferred.

And the term “Admission” is concerned as per section 58 of Evidence act declares that the facts
admitted need not be proved. Admission may be made before the suit or after the filling of the
suit. The object of obtaining admissions is to do away with the necessity of proving facts that are
admitted; and the judgment and decree may be passed on such admission.28

So primary object of admission is to dispense with proof. The importance of admission cannot be
underestimated. It is the best and strongest piece of evidence since the facts admitted need not be
proved. It saves time, expenses and expedites trial. What a party admits to be true should be
presumed true. No exception can be taken to this proposition. An admission is not conclusive as
to the truth of the matter stated therein. It is only a piece of evidence; the weight to be attached to
such admission should depend upon circumstances under which it was made. It can be shown to
be erroneous or untrue. It is also well-settled that an admission must be taken as a whole or not at
all. It is not open to court to accept a part of it and reject the rest.

But where one portion of the claim was admitted and the other portion was denied, and
both the portions were severable, it was held that the plaintiff could ask for a judgment on the
portion admitted by defendant.

27
Chamber’s 21st Centuary Dictionary (1997) at p. 59; Warton’s Law lexicon at p. 72; Concise Oxford Dictionary
(2007) at p. 63.
28
Or. 12 R. 6; see also malwa strips (p) ltd. V. jyoti Ltd., (2009) 2 SCC 426.

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BIBLIOGRAPHY
BOOKS

 Prasad Binod Mohan, ‘Mulla The Code of Civil Procedure’, Lexis-Nexis Butterworths
Wadhwa; Nagpur: 2007.
 Saha’s, A.N., The code of civil procedure, Premier Publishing Company, Allahabad :
1978.
 Jain, M.P., The code of civil procedure, Wadhwa and company ,Nagpur: 2007.
 Gupta, S.P. Sen, Handbook of the code of civil procedure, Kamal law house,
Kolkta:2007.
 Woodroffe sir john & Ameer Ali’s, ‘The code of civil Procedure’ Delhi law house, Delhi:
2008.
 http://www.law.cornell.edu/wex/appeal
 http://www.nolo.com/
 http://www.tsc.state.tn.us.

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