Order 41 MCQ Quiz - Objective Question with Answer for Order 41 - Download Free PDF

The correct answer is 'Order XLI Rule 5 (2)'.

Key Points

• Order XLI Rule 5 (2) of the Code of Civil Procedure, 1908:
  • Order XLI Rule 5 (2) deals with the power of the court to stay the execution of an appealable decree.
  • It specifies that the court which passed the decree has the authority to stay its execution while an appeal is being considered.
  • This provision ensures that the execution of the decree does not render the appeal infructuous.

Additional Information

• Order XLI Rule 5 (1):
  • This rule pertains to the general power of the appellate court to stay proceedings under a decree appealed from.
  • It does not specifically address the power of the court that passed the decree to stay its execution.
• Order XLI Rule 6 (1):
  • This rule deals with the power of the court to order the sale of perishable property during the pendency of an appeal.
  • It is not directly related to the stay of execution of a decree.
• Order XLI Rule 6 (2):
  • This rule provides for the deposit of sale proceeds in the court during the pendency of an appeal.
  • It does not specifically address the stay of execution of a decree.

The correct answer is Section 104 of C.P.C.

Key Points

• Order XLI of the Code of Civil Procedure (C.P.C.) deals with Appeals from Original Decrees-it lays down the procedure for filing, hearing, and deciding first appeals.
• Section 104 of C.P.C. provides for Orders from which Appeal lies and states that appeals shall be subject to the limitations and exceptions provided therein. This section acts as an allied provision because it complements Order XLI by specifying which orders are appealable.

The correct option is  If the case involves a substantial question of law.

Key Points

• When a person wishes to challenge a Decree (or a judgment) they typically file an Appeal.
• Appeal:-
  • An appeal is a legal process through which a higher court reviews the decision of a lower court.
  • The person filing the appeal known as the appellant, asks the higher court to review the lower court's decision to determine if any errors of law or procedure may have affected the outcome.
  • ORDER XLI -Appeals from Original Decrees
• Filing an Appeal:
  • The usual method of challenging a decree is by filing an appeal.
  • Sections 96 to 112 of the Civil Procedure Code typically deal with the right of appeal.
  • Section 96 grants a right of appeal from an original decree.
• Appellate Jurisdiction of High Courts:
  • In many legal systems, High Courts have appellate jurisdiction.
  • Section 100 of the CPC may grant the right to appeal to the High Court in certain cases.
• Grounds for Appeal:
  • Sections 100 and 101 often specify the grounds on which an appeal can be filed.
  • These may include errors of law, fact, or procedure.
• Second Appeal:
  • If the case involves a substantial question of law, Section 100 might allow for a second appeal.
  • ORDER XLII - Appeals from Appellate Decrees

Additional Information

• Revision:
  • Section 115 of the CPC may allow a party to file a revision petition before the higher court if there is a belief that the lower court has acted illegally or with material irregularity.
• Review:
  • In certain circumstances, a party might file a review petition under Section 114 and Order 47 Rule 1 of the CPC, seeking a review of the decree on grounds like the discovery of new evidence or an error apparent on the face of the record.

The correct answer is option 1.

Key Points

•  Rule 25 of order 41 says Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.—Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.

The correct answer is option 2.

Key Points

•  Rule 3A pertains to the application for condonation of delay.
• Rule 3A says  Application for condonation of delay.—(1) When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
  (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice hereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.
  (3) Where an application has been made under sub-rule (1), the Court shall not make an order fact the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.

The correct answer is option 4.Key Points

•  Rule 3 of order 41 says Rejection or amendment of memorandum.—
  • (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.
  • (2) Where the Court rejects any memorandum, it shall record the reasons for such rejection.
  • (3) Where a memorandum of appeal is amended, the judge, or such officer as he appoints in this behalf, shall sign or initial the amendment.

The correct answer is option 1.

Key Points

•  Rule 25 of order 41 says Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.—Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.

The correct answer is option 2.

Key Points

•  Rule 3A pertains to the application for condonation of delay.
• Rule 3A says  Application for condonation of delay.—(1) When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
  (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice hereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13, as the case may be.
  (3) Where an application has been made under sub-rule (1), the Court shall not make an order fact the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.

The correct answer is option 4.Key Points

• Rule 2 of order 41 says Grounds which may be taken in appeal.—The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule:
  • Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

Additional Information

•  Rule 1 says Form of appeal What to accompany memorandum.—(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the Judgment.
  • [Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.

The correct answer is Memorandum

Key Points

• Under the Code of Civil Procedure, 1908, an appeal is filed by way of a "memorandum of appeal".
• This is specifically laid down in Order 41 Rule 1 CPC, which states:
• "Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader..."
• The memorandum of appeal must:
• State the grounds of objection to the decree or order appealed from.
• Be accompanied by a certified copy of the decree and, unless dispensed with, also the judgment.

Additional Information

• Application – Used for interim reliefs or procedural matters, not for filing an appeal.
• Notice – Not a format for filing an appeal; notices are issued after appeal is admitted.
• Petition – Used for writs, revisions, or special leave — not for regular civil appeals under CPC.

The correct answer is 'Order XLI Rule 5 (2)'.

Key Points

• Order XLI Rule 5 (2) of the Code of Civil Procedure, 1908:
  • Order XLI Rule 5 (2) deals with the power of the court to stay the execution of an appealable decree.
  • It specifies that the court which passed the decree has the authority to stay its execution while an appeal is being considered.
  • This provision ensures that the execution of the decree does not render the appeal infructuous.

Additional Information

• Order XLI Rule 5 (1):
  • This rule pertains to the general power of the appellate court to stay proceedings under a decree appealed from.
  • It does not specifically address the power of the court that passed the decree to stay its execution.
• Order XLI Rule 6 (1):
  • This rule deals with the power of the court to order the sale of perishable property during the pendency of an appeal.
  • It is not directly related to the stay of execution of a decree.
• Order XLI Rule 6 (2):
  • This rule provides for the deposit of sale proceeds in the court during the pendency of an appeal.
  • It does not specifically address the stay of execution of a decree.

The correct answer is Section 104 of C.P.C.

Key Points

• Order XLI of the Code of Civil Procedure (C.P.C.) deals with Appeals from Original Decrees-it lays down the procedure for filing, hearing, and deciding first appeals.
• Section 104 of C.P.C. provides for Orders from which Appeal lies and states that appeals shall be subject to the limitations and exceptions provided therein. This section acts as an allied provision because it complements Order XLI by specifying which orders are appealable.

The correct option is  If the case involves a substantial question of law.

Key Points

• When a person wishes to challenge a Decree (or a judgment) they typically file an Appeal.
• Appeal:-
  • An appeal is a legal process through which a higher court reviews the decision of a lower court.
  • The person filing the appeal known as the appellant, asks the higher court to review the lower court's decision to determine if any errors of law or procedure may have affected the outcome.
  • ORDER XLI -Appeals from Original Decrees
• Filing an Appeal:
  • The usual method of challenging a decree is by filing an appeal.
  • Sections 96 to 112 of the Civil Procedure Code typically deal with the right of appeal.
  • Section 96 grants a right of appeal from an original decree.
• Appellate Jurisdiction of High Courts:
  • In many legal systems, High Courts have appellate jurisdiction.
  • Section 100 of the CPC may grant the right to appeal to the High Court in certain cases.
• Grounds for Appeal:
  • Sections 100 and 101 often specify the grounds on which an appeal can be filed.
  • These may include errors of law, fact, or procedure.
• Second Appeal:
  • If the case involves a substantial question of law, Section 100 might allow for a second appeal.
  • ORDER XLII - Appeals from Appellate Decrees

Additional Information

• Revision:
  • Section 115 of the CPC may allow a party to file a revision petition before the higher court if there is a belief that the lower court has acted illegally or with material irregularity.
• Review:
  • In certain circumstances, a party might file a review petition under Section 114 and Order 47 Rule 1 of the CPC, seeking a review of the decree on grounds like the discovery of new evidence or an error apparent on the face of the record.

The correct answer is Option 2.

Key PointsOrder 41 Rule 22 is a special provision permitting the respondent who has not filed an appeal against the decree to object to the said decree by filing cross-objections in the appeal filed by the opposite party. Filing of cross-objections by the respondent, however, is optional and voluntary.

The provision is permissive and enabling and not peremptory or obligatory.
Where the suit is partly decided in favour of the plaintiff and partly in favour of the defendant and the aggrieved party (either the plaintiff or the defendant) files an appeal, the opposite party may adopt any of the following courses:

1. He may prefer an appeal from the part of the decree which is against him. Thus there may be two appeals against the same decree; one by the plaintiff and the other by the defendant. They are known as "cross-appeals". Both these appeals will be disposed of together.
2. He may not file an appeal against the part of the decree passed against him but may take objection against that part. Such objections are called "cross-objections". 
3. Without filing a cross-appeal or cross-objection, he may support the decree: 

• on the grounds decided in his favour by the trial court; or
• even on the grounds decided against him.