Procedure
Full Text
The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.
Plain English Summary
Applies the procedural rules of Order XLI mutatis mutandis to Second Appeals preferred from appellate decrees, subject to the substantive limitations imposed by Section 100 of the Code.
Key Legal Elements
- Mutatis Mutandis Principle: All procedural rules of Order XLI (presentation, stay under Rule 5, dismissal under Rule 11, cross-objections under Rule 22, additional evidence under Rule 27, judgment under Rule 31) apply to second appeals.
- Subordination to Section 100 CPC: Procedural powers are strictly circumscribed by Section 100; High Court cannot re-appreciate findings of fact in second appeal.
- Filing Formalities: Memorandum must be accompanied by certified copies of both trial court and first appellate court decrees/judgments.
- Incidental & Stay Powers: High Court possesses powers to stay execution under Order XLI Rule 5 or grant temporary relief.
Practical Note
Application of Order XLI to Second Appeals & Limits on Fact-Finding: 1. Interplay with Section 100 CPC: In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 and Gurdev Kaur v. Kaki (2007) 1 SCC 546, the Supreme Court held that while Order 42 Rule 1 makes Order XLI applicable to second appeals, this is strictly 'so far as may be' and cannot expand the High Court's jurisdiction beyond Section 100. The High Court cannot enter into the domain of re-appreciating evidence or disturbing concurrent findings of fact unless they are perverse or contrary to law. 2. Additional Evidence under Order 41 Rule 27 in Second Appeal: Although Rule 27 is procedurally applicable via Order 42 Rule 1, the Supreme Court has ruled that additional evidence in a second appeal can be admitted only in rarest cases where it directly touches upon the substantial question of law framed by the High Court.
हिंदी पाठ
आदेश 41 के नियम, जहां तक हो सके, अपीलीय डिक्रियों से अपीलों को लागू होंगे।