The appeal must be in the form of a written memo., presented by appellant and accompanied by a copy of decree and, unless Appellate Court dispense with it, judgment on which it is founded: the memo must set forth concisely and under distinct heads numbered consecutively, the grounds of objection without argument or narrative. Appellant unless Court give leave, is confined to those grounds; the Court is not, but must not rest its decision on any ground not set forth by appellant until respondent has had sufficient opportunity of contesting on that ground. The memo. may be rejected and returned for amendment within fixed time or then and there: if rejected, the reasons must be recorded, if amended, it must be attested by Judge's signature. One of several plaintiffs or defendants may obtain reversal or modification of whole decree, if it proceed on ground common to all.

Execution of a decree is not to be stayed only because an appeal has been preferred against it, unless sufficient cause be shown, Execution of an appealable decree may be stayed on application, sufficient cause being shown, provided the Court is satisfied that substantial loss may result to applicant unless order is made, that application has been made without unreasonable delay, and that security has been given by applicant for due performance of such order or decree as may be ultimately binding on him. If, while an appeal is pending, order is made for execution of decree appealed against the Court passing the decree shall, on appellant's showing sufficient cause or on direction of Appellate Court, require security for restitution of property taken in execution or payment of its value or due performance of any order. Sales shall be stayed on application of judgment-debtor, on fitting terms imposed by Court executing decree until disposal of appeal. No such security is required from Government or public officers, the defence of whose suit Government has undertaken.

Memorandums of appeal are registered in the same way as suits. Either before or after respondent is called upon, Court on his application may demand from appellant security for costs of appeal or original suit or both. It must be demanded if appellant resides out of British India, and has not, exclusive of subject-matters of appeal, sufficient immovable property within British India: in default the appeal is to be rejected. On registry, notice is sent to Court from whose decree appeal has been made. Such Court must send all material or specially called for papers as soon as possible, and must deposit (where?-ED.) copies at applicant's cost of all those papers, for copies of which he applies. It is open to the lower Court, after hearing appellant or his pleader, to confirm decision of lower Courts, in which case no notice of appeal need be given to any one else; notice of confirmation should go to lower Court; other wise a day must be fixed for hearing appeal in the same way as for hearing a suit. Notice of the day fixed must be stuck up in Appellate Court house and sent to lower Court for service on respondent or served on respondent or pleader by Appellate Court like a summons on any defendant. The notice must tell respondent that if he does not appear on the day fixed, the appeal will be heard ex parte. The procedure in hearing is much the same, mutatis mutandis, as that for hearing suits, save (1) as to right to begin. The party who had right to begin in the lower Court, begins in appeal if the appeal is from the whole decree or there are cross appeals, but otherwise appellant begins; the opposite party in either case replies, and the party which began replies in turn. Dismissal in default, ex parte hearing, re-admission of dismissed appeals, adjournment, addition of interested parties, re-hearing of ex parte decrees, are as in original suits. Respondents are allowed not only to support the decree on any of the grounds decided against them in the lower Court, but if they have given a memorandum of their objections, with seven days' notice to appellant or his pleader, can take any objections they could have taken by way of appeal. A case may be remanded, when it has been disposed of on a preliminary point, so as to exclude evidence of fact, which appears essential to a right determination, and the decree upon such point has been reversed on appeal, with a copy of the order in appeal to the lower Court with directions to re-admit the suit on its original number and to investigate the case on its merits, and also, if thought fitting, with direction on what issues it shall be tried. In remanded cases no evidence except that which was excluded and evidence to rebut shall be taken. No other remand than the above is permitted. If evidence on the record is sufficient, the Appellate Court after re-settling issues, when necessary, shall finally determine the case. But if not, it may frame issues not tried and send them with questions of fact left undetermined to the lower Court for trial, and shall direct it to take the additional evidence required. After trial the issue with evidence and finding thereon shall be returned to Appellate Court. Such finding and evidence are to be put upon the record, either party may, within time fixed by Appellate Court, present memorandum of objections to the finding, and after expiry of the time the appeal shall be determined. No additional evidence can be produced in the Appellate

PART VI,

OF APPEALS.

CHAPTER XLI.

OF APPEALS FROM ORIGINAL DECREES.

540. (28, Act XXIII., 1861) Unless when otherwise Appeal to lie from all expressly provided in this Code or original decrees, except by any other law for the time being when expressly prohibited. in force, an appeal shall lie from the decrees, or from any part of the decrees, (r) of the Courts exercising original jurisdiction to the Courts authorized(s) to hear appeals from the decisions of those Courts. 541. (333-335) The appeal shall be made in the form of a memorandum in writing presented by the appellant and shall be accom

Form of appeal.

*See p. 321. panied by a copy*(t) of the decree appealed against and

† See p. 322.

Memorandum to be accompained, by copy of decree and judgment.

Such memorandum

Memorandum of ap

(unless the appellate Court dispenses therewith) of the judgment on which it is founded.

shall set forth, concisely and under distinct heads, the grounds *(u) of objection to the decree the decree appealed against, without any argument or narrative, and such grounds shall be numbered consecu

peal.

tively.

Appellant confined to grounds set out.

542. (334) The appellant shall not, without the leave of the Court,*(v) urge or be heard in support of any other ground of objection, but the Court in deciding the confined to the grounds set forth by the

appeal shall not be
appellant: * (w)

Provided that the Court shall not rest its decision on any grounds not set forth by the appellants, unless the respondent has had sufficient opportunity of contesting the case on that ground.

Rejection of memorandum or grounds of objection.

543. (336) If the memorandum of appeal be not drawn up in the manner here inbefore prescribed, it may be rejected, †(2) or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court, or be amended then and there.

When the Court rejects under this section any memorandum, it shall record the reasons for such rejection.

When a memorandum of appeal is amended under this section, and Judge, or such officer as he appoints in this behalf, shall attest the amendment by his signature.

Court, unless lower Court refused such evidence wrongly or Appellate Court requires it, or for any other substantial cause, reasons for admitting it shall always be recorded. This additional evidence the Appellate Court may either itself take or direct lower Court, or other subordinate Court to take and return. The points to which such evidence is to be confined must be specified and placed on record. The judgment is to be pronounced, written, translated, and contain same contents as judgments in original suits, save that in an appeal judgment no short statement of the case is required. If the appeal be heard by a bench of two or more judges, it is to be decided in accordance with the majority, if any, or if the judges be equally divided the decree shall be affirmed subject to this roviso, that if the difference between them be on a point of law, and the Court be one in which there are more than two judges, the appeal may be referred to one or more of the other judges of the same Court, and shall be decided according to the majority, if any, of all the judges including those who first heard the appeal. If the majority do not concur for varying or reversing the decree, it shall be affirmed. The dissenting judge shall put in writing the decision or order which he thinks should be passed and may state his reasons for the same. The judgment may

be for confirming, varying, or reversing the decree of the lower Court, or if the parties to the appeal agree as to the form it should take, the Appellate Court may pass a decree accordingly. Decrees are not to be reversed or substantially varied, and cases are not to be remanded, on account of any error, defect, or irregularity, not affecting the merits of the case or the jurisdiction of the Court.

The provisions for contents of a decree are the same as those for original decrees; a dissenting judge need not sign a decree he dissents from certified copies are to be furnished to the parties and also to the Lower Court. The latter shall file this copy with the original suit, and enter the Appellate Court's judgment in the register of civil suits, Appellate Courts are to have the same power in appeals as Courts of original jurisdiction have in hearing suits. Persons applying for execution of a decree of an appellate Court should apply to the Court which passed the original decree, when it will be executed under the same rules as are decrees in original suits.

(r) An appeal lies, it should be remembered

from a decree and not from a decision of a Court; if a decree be wholly in a party's favour he cannot ask an Appellate Court to entertain an appeal from certain issues which were decided against him. Sham Sundari Debia v. Diganbari Debia. ib. XIII., 1.

The written judgment of a judge who dies

or leaves the Bench after writing it, but before delivering it in open Court, is only an opinion. Mohammed Akil v. Assadoonissa Bibi. Wym, Rep. V., 69. (s) Where a suit, wherein the subject-matter exceeded Rs. 5,000, was instituted in the Court of a Principal Sudder Amin, but decided by a Subordinate Judge, 1st class, appointed under the Bombay Civil Court's Act XIV. of 1869. It was held that an appeal lay direct to the High Court under sec. 26 of the Act Rayasangji shivsangji v. Gulam Rasul, Bom. H. C., IX., 286. So also according to sec. 13 of Act 3 of 1873, (the Madras Civil Court Act) it is the money value of the original suit that fixes the jurisdiction throughout the subsequent litigation in its several stages. Held, therefore, where the amount of the original suit was more than Rs. 5,000, and an appeal was preferred to the District Court, but the amount in dispute in the appeal did not exceed Rs. 5,000, that the District Court had no jurisdiction to hear the appeal. Muthrosami Pillai v. Muthro Chidambara Chetti M, H, C., VII., 356.

The High Court declined to entertain the objection (not taken until the appellant's argument was concluded) that no appeal lay to it in a case, inasmuch as the amount or value did not exceed Rs. 5,000, even if it had been clear that the amount or value was Rs. 5,000. Chunder Nath Misser V. Sirdar Khan S. W. R., XVIII., 218.

An appeal will lie from an order passed by the High Court in the Miscellaneous Department, in a case of execution of decree, in which the amount or value involved exceeds Rs. 10,000, as well as in any other case in which the Court shall admit an appeal when the amount or value is below Rs. 10,000. Musst. Valedaty Begum v. Ruggoonath Pershad, VIII., W. R., 147.

The Calcutta High Court in the case, Ratoram Sircar v. Ramnarain Banerjee. ib. X., 242, provide that, where an appeal on insufficiently stamped paper has been admitted and heard, the Court must deal with it on its merits and cannot limit its relief to the amount covered by the stamp even though the objection to the insuffi ciency of the stamp might have been good as against the admission of the appeal at all.

But if a decree has been passed, the case is appealable, even though part only has been dealt with so as to dispose of it and the rest remanded for enquiry. Gaseeram Misser v. Williamson, Ind. Jur. II., 205.

* See p. 322,

+ See p. 323.

*See p. 325.

One of several plaintiffs or defendants may obtain reversal of whole deree if it proceed on ground common to all.

544. (337) Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed against proceeds on any ground common to all the plaintiffs or to all the (y)defendants. any one of the plaintiffs or of the defendants may appeal against the whole decree, and the Appellate Court may reverse or modify the decree in favour of all the plaintiffs or defendants as the case may be. † (z)

Of staying and executing Decrees under Appeal. 545. (338) Execution of a decree shall not be stayed Execution of decree not by reason only of an appeal having stayed solely by reason of been preferred against the decree; appeal. but the Appellate Court may, for sufficient cause, order the execution to be stayed: †(a) If an application be made for the execution of an appealStay of execution of appeal. able decree before the expiry of able decree before time for the time allowed for appealing apealing has expired. therefrom, the Court which passed the decree may, for sufficient cause, † (b) order the execution to be stayed:

Provided that no order shall be made under this section 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
Security required before

making order to stay execu
tion.

546. If an order is
Security in case of order

for execution of decree ap.
pealed against.

been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (c)

made for the execution of a decree against which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be given for the restitution of any property which may be 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 Court,

or the Appellate Court may for like cause direct the Court which passed the decree to take such security. ‡ (d) And when an order has been passed for the sale of immovable property in execution of a decree for money and an appeal is pending against such decree, the sale shall, on the application of the judgment-debtor, be stayed until the

(Continued on page 324).

In appeals to the High Court, where the matter is more than Rs. 10,000, the appellant is bound to put the whole case (and not merely his own particular case) fully before the Court in his paper book, so far as the documents and depositions are concerned, and if he fails to do so without very good reason, he ought not to be allowed to read at the hearing any thing which is not in the paper book. Kulian Dass v. Musst. Gobind Koer, S. W. R., XXIV., p. 143.

An Appeal lies to the High Court where true
original suit is brought for more the an
Re 5,000, but a decree given for less.
Dooley Chund v. Nerban Sing ib.
vol. 18, p. 252. See also notes to S. 594,
as to consolidation of suits.

If the appeal be barred by law the
Appelate Court cannot interfere in
any matter legimately arising out of
the case unless there is want of juris-
diction. Kurum Chund Kolecah v. Huree
Mohun Ghose, ib. II., Mis. 45.
(t) The appellant filed an appeal_against
the judgment of the Court of First Instance
without a copy of the decree. Subse-
quently the decree of the Court of First
Instance was filed within the time*allow-
ed for appeal and accepted by the Judge.
Held, that, the irregularity was cured,
and the appeal should not have been
dismissed on the ground of such irregu
larity. Lullee v. Ram Pershad, Agra,
vol., I., 35.

When the parties in two or more suits are
the same, and the decision in one case
governs all the cases, the filing of copies
of the judgment and decree passed in the
principal, case is sufficient compliance
with the law. Bhyrubnath Sandyal v.
Huro Sundery Dossee, ib. 1864, Mis.,
28.

R., XXIV., 625.

(v) The provisions of this section are very
clear, that the appellant shall not urge any
ground of appeal without the leave of
the Court; still, even under the old Act,
where the words were quite as strict, it.
was held in the case Narasu Reddi v.
Krishna Padagachi, that the statute of
limitation might be set up for the first
time on appeal wherever the plaintiff
had an opportunity of meeting it. But
the plea cannot be set up in special ap-
peal unless the facts which raise the plea
and appear in the case are admitted by the
plaintiff. This was founded on the case
of Maharajah Dheeraj Mahtab C. Baha-
door v. Bengal Government, M. I. A.,
IV., 466; stillit should be remembered
that, in this case, the ruling was that, al-
though the question of limitation had not
been raised in the Courts below, or distinct-
ly stated in the printed case before the
Judicial Commissioners of the Privy
Council, yet, as the proceedings in the
case were not proceedings in a re-
gular suit, and there were no pleadings,
it was deemed hard to bind the parties
by so technical an objection especially if
on investigation, it were found a valid
ground of defence.

On this fact that there were no pleadings in
the Court below, Holloway, J., observed
that the case before the Privy Council was
an irregular investigation conducted with-
out any pleadings at all, and one in which
the party had no opportunity of plead-
ing the law of limitation until the
case came before the Privy Council. He,
therefore, was inclined to doubt the pro-
priety of allowing the statute of limitation
to be set up for the first time on appeal.
Ramanatha Mudali v. Vithalingha Mu-
dalie M. H. O., 11., 238.

(*) Pleaders should be restricted to their
written ground of appeal and not allow-
ed to infer separate points from vague
generalities. J. P. Mackintosh v Wat-
son, S. W. R., Act XIII., 123.
An advocate or vakil cannot be heard
in the High Court, appellate side, Cal-
cutta, in support of an appeal in which
no grounds have been filed, or where, the
grounds, having been filed by the appel-
lant in person, they are not duly certi-
fied by a vakil or advocate of the Court.
Kisken Cbunder Roy v. Harrish Chunder
Bose, S. W. R., III., 217.
When the plaintiff in a suit has been de-
creed to be the heir of a deceased person
to the exclusion of one of the defend-
ants who does not appeal, the rights of
the latter cannot be asserted in appeal
by the other defendants for the purpose
of defeating the plaintiff's suit. Bhuga.
butti Misrain, v. Damun Misser. S. W.
* For time within which appeal can be made. See notes, s. 548.

The Bombay High Court lays, the duty of
considering the plea of limitation, even
when not taken in the lower Court, to
be imperative upon the Court itself; thus
in Saluji Kesraji v. Raj Sanghi Jalam-
sanjhi. B. II., A. C., 167, they held, that,
the Code has imposed on a Court the
duty of examining whether the whole
or any portion of a claim is barred, un-
der any existing law, by lapse of time,
and of decidingin accordance with such
law; and that, consequently, if it be
manifest from declarations in a plaint,
that the recovery of a portion of a claim
is barred by a particular statute, the
omission to notice this circumstance,
even if it should not have been speci-
fically urged in defence, is an error in law,
for the correction of which a special
appeal will lie.

It is different when the lower Court decides the issue of limitation against, but