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Section Key Principle Mnemonic What It Means

You can appeal any

“96 Mix – All Decrees
Appeals from original decree, even ex
96 Appeal, Except When
original decree parte, but not a consent
They Seal a Deal!”
decree, unless flawed

“97 Heaven – Final If no appeal is filed from

Can’t challenge
Follows First, or preliminary decree, you
97 preliminary decree
Forever Hold Your can’t raise it in appeal
later
Peace.” against final decree

“98 Debate – Majority Majority opinion wins; no

Bench decision
98 Decides or Decree majority = decree is
rules
Survives.” confirmed

Court won't reverse for

Technical error “99 Divine – Ignore
99 minor errors unless they
rule Minor, Fix Major.”
affect merits or jurisdiction

🔹 Define the term 'appeal'.

Model Answer:
An appeal is a legal proceeding by which a higher court is called upon to review
and rectify the decision of a lower court. It is the process whereby an aggrieved
party seeks reversal, modification, or setting aside of a judgment or order of the
court of first instance. It is not a new suit but a continuation of the original
proceeding.

🔹appeal
Q1. What is the procedure for registration of a memorandum of
under CPC?
Model Answer:
According to Order XLI Rule 9 of the Code of Civil Procedure, 1908, once a
memorandum of appeal is admitted by the appellate court, either the court itself or
a proper officer of the court endorses the date of presentation on the

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 memorandum. Thereafter, the appeal is entered into a register titled the "Register
of Appeals." This step marks the formal initiation of the appellate process and
ensures the appeal is properly recorded for adjudication.

🔹fromQ2.theWhen can the appellate court demand security for costs

appellant?
Model Answer:
Under Order XLI Rule 10(1) of the CPC, the appellate court may, in its discretion,
demand security for the costs of the appeal or the original suit either before the
respondent is called upon to appear or afterward upon application by the
respondent. Further, as per Rule 10(2), if the appellant resides outside Bangladesh
and lacks sufficient immovable property within Bangladesh (excluding the
property in dispute), it is mandatory for the court to require such security. Failure
to furnish the security within the time fixed by the court results in rejection of the
appeal under Rule 10(3).

🔹dismissed
Q3. Under what circumstances can an appeal be summarily
by the appellate court?
Model Answer:

As per Order XLI Rule 11(1) of the CPC, after calling for the record from the lower
court and fixing a date for hearing, the appellate court may summarily dismiss an
appeal without serving notice on the respondent or the lower court if it deems the
appeal to be without merit. Furthermore, under Rule 11(2), if the appellant does not
appear on the date fixed for such hearing, the court is empowered to dismiss the
appeal for non-prosecution. These provisions enable the court to expeditiously
dispose of frivolous appeals.

🔹hearing
Q4. What is the procedure for notifying the respondent of the
date of an appeal?
Model Answer:
Order XLI Rule 14(1) of the CPC mandates that once the date of hearing is fixed,
notice must be affixed in the appellate court-house and also sent to the lower

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 court. A similar notice must be served on the respondent, in the same manner as a
summons to a defendant, including by registered post with acknowledgment due.
Under Rule 14(2), the appellate court may itself serve the notice without involving
the lower court. Rule 15 further provides that such notice must inform the
respondent that failure to appear will result in the appeal being heard ex parte.

🔹appeals
Q5. What are the rules regarding adjournment of hearing in
under CPC?
Model Answer:

Order XLI Rule 12A(1) of the CPC imposes a strict limit of three adjournments for
either party in an appellate hearing. Any further adjournment is subject to
mandatory cost ranging from Taka 200 to Taka 1,000, payable to the opposite
party. Non-payment by the appellant renders the appeal dismissible, and by the
respondent, liable to ex parte disposal. Under Rule 12A(2), a dismissed or ex
parte-disposed appeal may be revived upon application within thirty days, subject
to cost deposit. However, revival is permissible only once for the same party. Rule
12A(3) restricts the court from granting adjournment suo motu without recording
reasons.

Q1. What is the power of the appellate court under Order 41 Rule
24 CPC?
Answer:

Under Order 41 Rule 24 CPC, where the evidence on record is sufficient to

pronounce judgment, the appellate court may finally determine the suit after
resettling the issues, if necessary. This power is exercisable even if the trial
court’s judgment proceeded on grounds different from those relied upon by the
appellate court. In doing so, the appellate court performs the same duties and
exercises the same powers as a court of original jurisdiction under Section 107(2)
CPC. The court is not bound to remit the matter for re-trial if justice can be served
on the existing record.

Q2. Distinguish between Order 41 Rule 23 and Rule 25 CPC.

Answer:

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 The key differences are: (1) Under Rule 23, the entire suit is remanded when
disposed of on a preliminary point, while under Rule 25, only specific issues are
referred back for determination. (2) A remand under Rule 23 is a final order
appealable under Section 104 CPC; Rule 25 refers to an interlocutory order not
independently appealable. (3) Rule 23 removes the matter entirely from appellate
control temporarily, whereas Rule 25 retains the appeal with the appellate court.
The objective of Rule 25 is to avoid unnecessary remands by addressing only
factual gaps.

Q3. What is the scope of additional evidence under Order 41 Rule

27 CPC?
Answer:

Order 41 Rule 27 CPC bars parties from producing additional evidence in appeal
unless: (a) the trial court wrongly refused admissible evidence, or (b) the appellate
court finds it necessary to pronounce judgment or for any other substantial cause.
The court must record reasons for admitting such evidence. The appellate court
may itself take the evidence or direct the trial court or any subordinate court to do
so (Rules 27(2), 28). This provision is not a right of the parties, but a discretionary
power of the court, exercised to advance justice and prevent prejudice.

Q4. Explain the appellate court’s power to remand a case under

Order 41 Rule 23 CPC.
Answer:

Under Order 41 Rule 23 CPC, if the trial court has disposed of the suit on a
preliminary point and the appellate court reverses such decree, it may remand the
case for fresh trial. The appellate court may direct the trial court to re-admit the
suit under its original number and try the remaining issues. The previously
recorded evidence is deemed admissible, subject to legal objections. This
provision ensures a full and proper adjudication of the suit where the trial court
failed to try the case on merits.

Q5. How does Order 41 Rule 33 CPC empower the appellate court
to do complete justice?

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 Answer:

Order 41 Rule 33 CPC grants the appellate court wide discretionary power to pass
any decree or order that ought to have been passed or made by the lower court.
This power may be exercised in favour of any respondent or non-appealing party,
even in part-appeal cases, to ensure complete justice. The provision empowers
the court to mould relief in a way that meets the ends of justice, even inter se
between co-respondents. However, the proviso restricts this power with respect
to compensatory costs under Section 35A CPC.

CT questions
1. Is it mandatory for the appellate court to grant a stay in every
appeal? Explain briefly.
No, it is not mandatory for the appellate court to grant a stay in every appeal. The
mere filing of an appeal does not automatically operate as a stay of the decree
or order appealed against. According to Order 41 Rule 5 of the CPC, the appellate
court has discretion to grant a stay only if it is satisfied that:

Substantial loss may result to the appellant if no stay is granted,

The appeal has been filed without unreasonable delay, and

Security has been furnished for due performance of the decree.

2. Under what conditions may an appellate court admit new

evidence?
An appellate court may admit additional evidence under Order 41 Rule 27 of the
CPC under the following specific conditions:

If the trial court refused to admit evidence which ought to have been
admitted;

If the party could not produce the evidence earlier despite due diligence;

If the appellate court requires the document or evidence to pronounce

judgment or for any substantial cause.

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 The power must be exercised judiciously and sparingly, ensuring it is not used to
fill in gaps in the lower court record.

3. What directions can an appellate court give while remanding a

case?
Under Order 41 Rules 23 and 25 of the Code of Civil Procedure, the appellate
court can remand a case with specific directions in the following situations:

Rule 23: If the trial court has disposed of the suit on a preliminary point (e.g.,
jurisdiction, limitation, res judicata) without deciding all the issues, and the
appellate court reverses that finding, it shall remand the case back to the trial
court. The lower court is directed to re-hear the case and decide it on all
issues after taking necessary evidence.

Rule 25: If the appellate court finds that some material issues were not
framed or tried by the trial court, but it does not wish to remand the whole
case, it may frame those issues itself and refer them to the trial court. The
trial court must then:

Take additional evidence (if required),

Record findings on those issues, and

Return the findings to the appellate court for final decision.

These rules ensure that procedural omissions at the trial level do not cause
injustice or delay final adjudication.

4. What information must be included in a memorandum of

appeal under the CPC?
As per Order 41 Rule 1(2), the memorandum of appeal must:

Be signed and verified like a pleading,

State the grounds of objection to the decree appealed from,

Be accompanied by a certified copy of the decree and judgment,

Clearly state whether the appeal is from the whole or part of the decree.

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 The grounds should be precise, without argument or narrative, and framed
distinctly.

5. What powers are conferred on an appellate court under

Section 107 of the CPC?
Section 107 of the CPC grants the appellate court all powers as the original court,
including the power to:

Determine a case finally,

Remand the case,

Frame issues and refer them to trial court,

Take additional evidence or require it to be taken,

Pass orders necessary for justice.

These powers are subject to the conditions and limitations of the Code, ensuring
appellate control while respecting trial court procedures.

6. Why is it said that an appeal is a creature of statute?

An appeal is said to be a creature of statute because there is no inherent or
constitutional right to appeal. It must be explicitly provided by law. In the CPC,
the right of appeal is conferred by Sections 96 to 112 and various Orders. Without
such statutory provision, no appeal can be entertained, regardless of the merits of
the case.

7. Can the appellate court dismiss an appeal without issuing

notice to the respondent? If so, under which provision?
Yes, under Order 41 Rule 11, the appellate court can dismiss an appeal without
issuing notice to the respondent. This is known as preliminary hearing, where
the court may dismiss the appeal if it finds no sufficient ground for proceeding.
However, if it does not dismiss it at that stage, then notice must be issued for
hearing both parties.

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 8. Can the mere filing of an appeal operate as a stay of
proceedings? Explain briefly.
No, the mere filing of an appeal does not operate as a stay. As per Order 41 Rule
5(1), stay must be specially prayed for and granted by the appellate court. This
rule preserves the finality and enforceability of judgments unless a court orders
otherwise upon fulfillment of specific conditions.

9. Does the CPC impose any limit on the number of adjournments

in appellate proceedings? Explain.
Yes, the CPC imposes a statutory limit of three adjournments in appellate
proceedings. As per Order 17 Rule 1(1) (Proviso), inserted by the Amendment Act
of 2002, no party shall be granted more than three adjournments during the
hearing of a suit or proceeding, including appeals.

The proviso states:

“Provided that no such adjournment shall be granted more than

three times to a party during hearing of the suits.”

This rule aims to prevent unnecessary delays and promote speedy disposal of
cases. While courts may still grant adjournments for exceptional reasons, they
must record such reasons in writing, and repeated or casual adjournments are
strongly discouraged.
Therefore, in appellate proceedings, the CPC ensures discipline and expediency
by capping adjournments at three.

10. How is the general right to appeal provided in Section 96 of

the CPC?
Section 96 of the CPC provides the general right to appeal from original decrees.
It states:

An appeal lies from every decree passed by a court exercising original

jurisdiction,

No appeal lies from a consent decree,

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 In cases of ex parte decrees, appeal is also maintainable,

First appeals lie on facts as well as law, making it a substantive right.

This section is the foundation of the appellate structure in civil litigation.

11. In what ways does Order 41 Rule 33 of the CPC extend the
appellate court's authority beyond the scope of the appeal?
Order 41 Rule 33 empowers the appellate court to:

Pass any decree and make any order which ought to have been passed or
made by the lower court,

Exercise power in favour of any respondent or party who has not appealed,

Grant relief even if the party hasn’t filed cross-appeal or cross-objection.

This wide power ensures complete justice and prevents the necessity of multiple
appeals, even allowing the court to mould relief in the interests of equity and
fairness.

12. What is meant by "admission of appeal"?

"Admission of appeal" refers to the stage under Order 41 Rule 9 to Rule 11 when
the appellate court, after initial scrutiny, finds the appeal maintainable and admits
it for hearing. It includes:

Registration of the appeal,

Preliminary hearing (under Rule 11),

Issuance of notice to the respondent after admission,

Fixing the case for regular hearing.

Admission signifies the formal acceptance of the appeal for judicial

consideration.

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