Category: Appeals

ISSUE:

Whether an appeal abated under Order 22 Rule 9 of the Code of Civil Procedure, 1908 (“CPC”), precludes a second appeal under Section 100 of the CPC?

Whether the dismissal of a second appeal as incompetent impacts the validity of an appeal under Order 43 Rule 1(k) of the CPC?

RULE:

Under Order 22 Rule 9 of the CPC, an appeal abates automatically if legal representatives are not substituted within the prescribed time, unless sufficient cause is shown for the delay.

Order 43 Rule 1(k) of the CPC allows an appeal against an order refusing to set aside abatement.

As per Section 2(2) of the CPC, a decree must involve a conclusive adjudication on the merits of the case. Abatement does not amount to such adjudication.

Under Section 100 of the CPC, a second appeal is maintainable only against a decree passed in appeal by a subordinate court.

ISSUE:

Can the high court entertain a prayer for review of its order if such a review can disturb the order earlier passed by the Supreme court?

When the orders of HC and SC have merged by affirmation, can a review petition be filed against the order of the High Court?

RULE:

Order 47 Rule 1 subrule (1) (a) of the Code of Civil Procedure 1908 states that an Application for review of judgment can be filed by Any person considering himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred.

ISSUE:

Whether the trial court erred in dismissing the suit of the plaintiff-appellant under Order XVII, Rule 3 of C.P.C. on the ground that the application was placed before the trial court to adduce evidence in the form of oral evidence and, therefore, there was no occasion to dismiss the suit?

Whether the trial court has rejected the application by wrongly interpreting the provisions for adducing and taking the evidence under Order XVIII Rule 2 read with Rule 3 (A) of C.P.C?

Whether the lower appellate court could not have decided the issues on merits merely by placing reliance on the findings returned by the trial court while disposing of the injunction application?

RULE:

Rule 3A Order XVIII and Rule 2 Order XVIII of Code of Civil Procedure 1908.