No such security to

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.

And when an order has been passed for the sale of immoveable 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 appeal is disposed of, on such terms as to giving security or otherwise as the Court which passed the decree thinks fit.

547. No such security as is mentioned in sections 545 and be required 546 shall be required from the Secretary of State for India in Council, or (when Government has undertaken the defence of the suit) from any public officer sued1 in respect of an act alleged to be done by him in his official capacity.

from Govern

ment or public officers.

Registry of

memoran

dum of ap

peal.

Register of appeals.

Power to

Of Procedure in Appeal from Decrees.

548. When a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose.

Such book shall be called the Register of Appeals 2.

549. The Appellate Court may at its discretion 3, either require ap- before the respondent is called upon to appear and answer or pellant to give securi- afterwards on the application of the respondent, demand from ty for costs. the appellant security for the costs of the appeal, or of the original suit, or of both 5:

1 under chap. XXVII.

4

2 see form, sched. IV, no. 174. When an appeal is once registered, the appellant cannot withdraw it without the Court's permission, 3 Mad, H. C. 368.

3 Of course this discretion must be properly exercised; and it is not so exercised when the order requiring security has been made without opportunity being given to the appellant to show cause against it, 5 All. 380.

i. e. some ascertained amount of

security, 9 All. 164.

The appellant's poverty is by itself

no sufficient ground for requiring him to give security for the costs of the appeal, 3 Bom. 2: 417 All. 546: 8 All. 203. A suitor in formâ pauperis may, however, be required under this section to give security for costs; but very special grounds (e.g. that he is a mere creature in the hands of a wealthy man) should be shown, 3 Mad. 66 (dissenting from 17 Suth. Civ. R. 68), and see 7 All. 542: 3 Bom. 242. No appeal lies from an order under this paragraph, 6 N. W. P. 172, 175.

Provided that the Court shall demand such security in all When apcases in which the appellant is residing out of British India, gides out of pellant reand is not possessed of any sufficient immoveable property British within British India independent of the property (if any) to which the appeal relates.

If such security be not furnished within such time as the Court orders, the Court shall reject the appeal 1.

India.

550. When the memorandum of appeal is registered, the Notice Appellate Court shall send notice of the appeal to the Court to Court against whose decree the appeal is made.

whose decree ap

pealed

If the appeal be from a Court the records of which are not against. deposited in the Appellate Court, the Court receiving such Transnotice shall send with all practicable despatch all material mission of papers in the suit2, or such papers as may be specially called Appellate for by the Appellate Court.

papers to

Court.

exhibits.

Either party may apply in writing to the Court against Copies of whose decree the appeal is made, specifying any of such papers in such Court of which he requires copies to be made; and copies of such papers shall be made at the expense of the applicant, and shall be deposited accordingly.

confirm

Court with

551. The Appellate Court may, if it thinks fit, after fixing Power to a time for hearing the appellant or his pleader, and hearing decision him accordingly if he appears at such time, confirm the of lower decision of the Court against whose decree the appeal is made, out sending without sending notice of the appeal to such Court and with- it notice. ⚫out serving notice on the respondent or his pleader; but in such case the confirmation shall be notified to the same Court3.

552. The Appellate Court, unless where it confirms, under Day for hearing section 551, the decision of the lower Court, shall fix a day appeal. for hearing the appeal.

Such day shall be fixed with reference to the current

1 This, of course, is subject to the power of the Court to extend the time within which it has ordered the security to be furnished, 1 All. 687: 11 Cal. 716; see 9 All. 164. The rejection of the appeal is a decree and appealable, 5 All. 380.

2 11 Suth. Civ. R. 248.

$ Cf. Act IX of 1873, sec. 7, by which sec. 551 was suggested. A proceeding under this section is a trial, 2 All. 819, 823; the 'confirmation' is a decree (sec. 2); and the procedure authorised under sec. 552 does not dispense with the necessity of drawing up a judgment, 3 Mad. 1.

Publication and

service of notice of day for hearing appeal.

Appellate

itself cause

business of the Court, the place of residence of the respondent, and the time necessary for the service of the notice of appeal, so as to allow the respondent sufficient time to appear and answer the appeal on such day.

553. Notice of the day so fixed shall be stuck up in the appellate court-house, and a like notice1 shall be sent by the Appellate Court to the Court against whose decree the appeal is made, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided in Chapter VI for the service on a defendant of a summons to appear and answer; and all rules applicable to such summons and to proceedings with reference to the service thereof, shall apply to the service of such notice.

Instead of sending the notice to the Court against whose Court may decree the appeal is made, the Appellate Court may itself notice to be cause the notice to be served on the respondent or his pleader served. under the rules above referred to.

Contents of

notice.

Right to begin.

Dismissal

554. The notice to the respondent shall declare that, if he does not appear in the Appellate Court on the day so fixed, the appeal will be heard ex parte.

Procedure on Hearing.

555. On the day so fixed, or on any other day to which the hearing may be adjourned2, the appellant shall be heard in support of the appeal. The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the . appeal, and in such case the appellant shall be entitled to reply.

556. If on the day so fixed, or any other day to which the of appeal for appelhearing may be adjourned, the appellant does not attend in lant's de- person or by his pleader, the appeal shall be dismissed for

fault.

default 4.

1 See form, sched. IV, no. 175. In the case of the High Courts see sec. 636.

2 When an appeal was decided before the day so fixed, the pleaders being present and arguing the case, the irregularity was condoned, 1 Suth. Civ. R. 245.

3 3 Bom. O. C. J. 53.

So when both parties failed to appeal, Marshall, 5. So when the pleader who has signed the memorandum refuses to argue on the ground that he is unprepared, 15 Suth. Civ. R. 143. The order of dismissal is not appealable, 2 All. 616.

If the appellant attends and the respondent does not attend, the appeal shall be heard ex parte in his absence.

Hearing

appeal ex

parte.

where

served in

conse

557. If on the day so fixed, or any other day to which the Dismissal hearing may be adjourned, it is found that the notice to the of appeal respondent has not been served in consequence of the failure notice not of the appellant to deposit, within the period fixed by the Court1, the sum required to defray the cost of issuing the quence of appellant's notice, the Court may order that the appeal be dismissed 2: failure to Provided that no such order shall be passed, although the deposit notice has not been served upon the respondent, if on the day fixed for hearing the appeal the respondent appears in person or by a pleader, or by a duly authorised agent.

cost.

558. If an appeal be dismissed under section 556 or section Re-admis557, the appellant may apply to the Appellate Court for the sion of appeal disre-admission of the appeal; and if it be proved that he was missed for prevented by any sufficient cause from attending when the default. appeal was called on for hearing or from depositing the sum so required, the Court may re-admit the appeal on such terms. as to costs or otherwise as the Court thinks fit to impose upon him1.

559. If it appear to the Court at the hearing that any Power to person who was a party to the suit in the Court against whose adjourn hearing, decree the appeal is made, but who has not been made a party and make to the appeal, is interested in the result of the appeal, the persons Court may adjourn the hearing to a future day to be fixed responby the Court, and direct that such person be made a respondent 5.

interested

dents.

560. When an appeal is heard ex parte in the absence of Re-hearing on applicathe respondent, and judgment is given against him, he may tion of re

1 II Suth. Civ. R. 290.

affected by the Limitation Act, 9 Cal.

2 And there is no appeal against 362. It does not empower the Court

such order.

3 within thirty days from the date of the dismissal, Act XV of 1877, sched. II, art. 168.

An order refusing to re-admit an appeal is appealable, sec. 588, cl. (27). 5 This discretionary power is not

virtually to make an appeal for an
appellant, who has refrained from
availing himself of his privileges
under the law, by introducing for him
other respondents than those he has
included in his petition of appeal, 5
All. 267.

against whom ex

parte de

spondent apply1 to the Appellate Court to rehear the appeal2; and if he satisfies the Court that the notice was not duly served, or that he was prevented by sufficient cause from attending when the appeal was called on for hearing, the Court may rehear the appeal on such terms as to costs or otherwise as the Court thinks fit to impose upon him 5.

cree made.

Upon hear

ing, respondent may object to

decree as if he had

561. Any respondent, though he may not have appealed against any part of the decree, may upon the hearing not only support the decree on any of the grounds decided against him in the Court below, but take any objection to the decree preferred which he could have taken by way of appeal, provided he has filed a notice of such objection not less than seven days before the date fixed for the hearing of the appeal 10.

separate

appeal.

Form of notice, and

Such objection shall be in the form of a memorandum, and provisions the provisions of section 541, so far as they relate to the form applicable and contents of the memorandum of appeal, shall apply thereto 11.

thereto.

Remand of

562. If the Court against whose decree the appeal is made Appellate has disposed of the suit upon a preliminary point so as to

case by

Court.