Secs 151, 148 and 149- Appeal dismissed for default for non-payment of balance court fee - Petition for restoration of appeal invoking inherent powers under Sec. 15s is not maintainable . Failure to pay the balance court fee may, therefore, be a default inviting certain consequences. What that consequence is provided by Order VII Rule 11 (c) of the Code of Civil Procedure and that consequence is the rejection of the plaint or the memorandum of appeal in view of Section 107 of the Code of Civil Procedure. Which provides that a rejection of the plaint would amount to a decree as defined in the Act. [ Padinhare Aroli Veettil Gopalan Nair Vs. Korakkaran Bhaskaran, 2001(1) KLT 251 . (P.K.Balasubramanyan & K.A.Abdul Gafoor (JJ)]
Order XLIV Rule 1 - Presentation of the appeal by advocate with several defects - Returned as defective - Presentation of appeal in this case was not regular or proper, the re-presentation of that appeal attempted by counsel as an indigent appeal cannot be accepted. If it has to be treated as an appeal filed by an indigent person, has to be presented in person by the party or an authorised agent who is in a position to answer all material questions relating to the application in terms of Order XXXIII Rule 3 of the Code of Civil Procedure. [Illathpoyil R. Moideenkoya Vs. Kizhakkepurayil Sarojini and another, 2002 (1) KLT 114 = 2002 (1) KLJ 88 = 2002 (1) KLJ 74 .. (P.K.Balasubramanyan & K.A.Abdul Gafoor (JJ)]
Order 41, Rule 1(3) C.P.C. - Deposit of the amount disputed in appeal against a money decree - Non compliance of a direction by the Court - Effect of - Appeal cannot be dismissed on the ground of non compliance of the direction. Compliance of the direction is not a pre-condition for the adjudication of the appeal. [Napoleon Vs. P.V.Cherian and others. 2002 (2) KLT 905. K.S.Radhakrishnan & T.M.Hassan Pillai (JJ)
Order XLI Rule 11 & 11A- Decree merely for return of the advance paid pursuant to an agreement for sale of immovable property on breach of agreement - Counsel for the appellant not able to point out any error of fact or law and sought adjournment - It is submitted that the amount was paid at the time of agreement was earnest money and hence liable to be fortified, but no such contention is taken in lower court - Nothing shown to induce the appellate court that the appellant has suffered damages -Counsel could not bring to the notice of court any evidence to show that there is an arguable point - Stand of the counsel that HC cannot dismiss an appeal under this provision cannot be accepted . Court has power to scrutinise preliminary whether an appeal filed requires to be admitted for final hearing or not. [Makkaru Pillai vs Babu. 2001 (1) KLJ 406 = 2001(1) KLT 495 .P.K.Balasubramanyan & T.M.Hassan Pillai (J&J)]
Order 47 Rule 1 – Subsequent filing of an appeal by a co-party would not ipso facto take away the jurisdiction of the lower court to consider and dispose of the review – Disposal of the appeal subsequently filed after the review petition without notice to the review petitioner ,may not affect his rights – [KarthyVs Parukutty&others – C.R.P.No 270/94 –I dated 14.10.99 – M.R.Hariharan Nair (J)]
Order 41 Rule 11 & Order 41 Rule 19 - Under Order 41 Rule 11(1) the Appellate Court need hear the appellant or his counsel only if he appears. The dismissal of the appeal Under Order 41 Rule 11(1) can be made after hearing or not hearing the appellant or his counsel. Dismissal of appeal under Order 41 Rule 11(1) is on merits and dismissal under Order 41 Rule 11(2) is on default. The re-admission of the appeal under Order 41 Rule 19 is allowed only when it is dismissed under Order 41 Rule 11(2). [Karunakaran v. Thangamoni Amma, M.J.C.No.41/2000 in S.A.No.11/2000, dated 14-2-2000. G. Sasidharan (J)]
Sec. 96 & Order 42A - Appeal against the judgment of the single judge before the Division Bench under Sec. 5 of the Kerala High Court - Should be accompanied by decree.[ K.V.Damodaran vs P.K.Muraleekrishnan AIR 2001 Ker 3. P.K.Balasubramanyan & T.M.Hassan Pillai (J&J)]
Sec. 96 - Order VII Rule 2 - Suit for money - Suit dismissed for non-production of succession certificate . Can be produced at the appellate stage. [ Madhavan Mony vs Sarasamma Amma. AIR 2001 Ker 35. .K.A.Mohammed Shafi (J)]
Order 41Rule 3A- Appeal filed after the prescribed period - Petition to condone delay can be filed later on - [State of Madhya Pradesh vs. Pradeep Kumar. 2000 (3) KLT 598.SC. K.T.Thomas & R.P.Sethi (J&J)]
Remand - Suit for recovery of possession based on title - Remand order against which no appeal is filed is binding on the parties - Parties cannot re-agitate the question decided in the remand order bound on a subsequent decision of Supreme Court in another case. [Subramanian Vs. Kesavan, 2002 (2) KLT SN 106, Page No.90. P.R. Raman (J)]