JUDGMENT Sunil Ambwani, J.
1. This Full Bench has been constituted by Hon'ble the Acting Chief Justice on a reference made by learned Single Judge on 4.7.2000, to decide the following two questions :--
"1. Whether an order that the appeal will be heard amounts to admission to (sic) appeal under Order XLI, Rule 9 of the C.P.C. and Chapter XI, Rule 9 of the Rules of the Court.
2. Whether office could admit the appeal without there being any order of the Court purporting to be an order of the Court."
2. The First Appeal in the instant case arises out of the Judgment and Order dated 24.1.2000 passed by the Principal Judge (Family Court), Moradabad, in case No. 107/1998, Mohd. Furqan v. Mohd. Salim and Smt. Razia Sultana, by which application of plaintiff-respondents for custody of his son Mohd. Zeeshan was allowed to be given to the applicant father Mohd. Furqan the respondents in the appeal.
3. From the judgment and decree on record we find that on 23.1.1999 the minor Mohd. Zeeshan was 14 year's old. He has now become major and no longer requires the appointment of a guardian. The application giving rise to this appeal for custody as such has become infructuous, and does not require any further adjudication. However, since the questions referred to this Full Bench have some importance and bearing on the pending First Appeals or the First Appeal which may be filed in this Court, we are proceeding to consider and decide them.
4. In the present case, the First Appeal under Section 19 of the Family Court Act, 1984 was filed in defeat. The report dated 9.2.2000 informed the Court that the valuation was not given, true copy of the judgment was wanted and that the parties were not properly described. The defects regarding valuation and deficiency were removed on the same day and the parties were properly described on 11.2.2002. The appeal was listed before the Division Bench on 9.3.2000. The Bench passed following order on the order sheet:
"Hon'ble Mr. Justice Binod Kumar Roy, Hon'ble Mr. Justice Lakshmi Bihari.
Re-Appeal This appeal will be heard.
Issue notice by registered post as well as ordinary mode to the Respondent for which necessary requisites etc. must be filed within two weeks, failing which this appeal shall stand dismissed without further reference to a Bench.
Re-Stay Application Issue notice by registered post as well as ordinary mode to the Respondent for which necessary requisites etc. as prayed for must be filed by tomorrow, failing which this stay application shall stand dismissed without further reference to a Bench.
If this peremptory order is complied with, then the office will see that the notices are dispatched by Monday dated the 13th March, 2000 making the Rule returnable on 17th April, 2000."
5. The Bench Secretary of the Court made a note of the same date on the back of the first page of the memo of appeal as follows :
"Issue notice.
For orders see order dated 9.3.2000 on the order sheet."
6. The matter was thereafter listed on 17.4.2000 before learned Single Judge, who found that the case is cognizable by Division Bench and that it should be listed before the Division Bench in the computer list. On 18.4.2004 it appears that the mention was made before learned Single Judge that the matter has been admitted and as such under Rules of the Court the matter has to be listed before learned Single Judge as a miscellaneous matters. On 24.4.2000 the Court observed that the notices have not returned back after service, and no vakalatnama has been filed. The office was required to wait till 3.7.2000. The matter was to be listed again and having heard Counsel for the appellant the execution of the order dated 24.1.2000 and subsequent orders dated 11.4.2000 passed by Family Court, Moradabad directing execution of the order against which the appeal was directed to be stayed till the next date of listing. On 4.7.2000 learned Single Judge refused to extend the stay order as in his view the stay application was not cognizable by learned Single Judge on 4.7.2000, and the matter was referred to Larger Bench for decision on afore stated questions.
7. Order XLI of the Code of Civil Procedure, 1908 (in short, the Code) provides for appeals from original decrees. Rule 1 provides that every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it may appoint in this behalf. The memorandum is required to be accompanied with a copy of the judgment appealed from, unless the Appellate Court dispenses with of the requirement. Rule 2 provides for the grounds to be taken in appeal and Rule 3 authorises the Court to reject the memorandum of appeal or to return it to the appellant for the purposes of its amendment if the memorandum has not been drawn, up in the manner prescribed. Rule 3 (A) provides for an application for condonation of delay where the appeal has been preferred beyond the prescribed period of limitation supported by an affidavit. Rules 5 to 8 provide for stay of proceeding and of execution.
8. The procedure of admission of appeal is provided under Rules 9 to 15 and the procedure of hearing in Rule 16 to 25. Where a memorandum of appeal is admitted, Rule 9 provides that the Appellate Court or the proper officer of the Court shall endorse thereon the date of presentation and shall register the appeal in a book to be kept for the purpose and such book shall be called under Sub-rule (2) as the 'Register of Appeal'. Under Rule 10 the Appellate Court may require appellant to furnish security for costs, as its discretion either before the respondents is called upon to appear and answer or afterwards on the application of the respondents. Where such security is not furnished within such time as Court orders Sub-rule (2) provides for rejection of the appeal. Rule 11 gives powers to dismiss the appeal without sending notice to the Lower Court or to the respondents or his pleader. Rule 11(A) provide that every appeal shall be heard under Rule 11, as expeditiously as possible and endeavour shall be made to conclude such hearing within 60 days from the date on which the memorandum of appeal is filed. Rule 12 provides that unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a date for hearing the appeal. Sub-rule (2) provides that such day shall be fixed with reference to the current business of the Court, the place of residence of the respondents and the time necessary for the service of the notice of the appeal so as to allow the respondents sufficient time to appeal and answer the appeal on such day.
9. The unamended Order XLI, Rules 9, 10, 11, 11-A, 12, 14 and 15 of the Code (before its amendment by Act No. 46 of 1999 w.e.f. 1.7.2002) relevant for the purpose of this reference as quoted as below :--
"9. Registry of memorandum of appeal.-(1) Where 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.
(2) Such book shall be called the register of appeal.
10. Appellate Court may require appellant to furnish security for costs.-(1) The Appellate Court may in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both :
Where appellant resides out of India.--Provided that the Court shall deemed such security in all cases in which the appellant is residing out of India, and is not possessed of any sufficient immovable property within India other than the property (if any) to which the appeal relates.
(2) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.
11. Power to dismiss appeal without sending notice to Lower Court.--(1) The Appellate Court after sending for the record if it thinks fit so to do, after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.
(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismisses.
(3) The dismissal of an appeal under this Rule shall be notified to the Court from whose decree the appeal is preferred.
(4) Where an Appellate Court, not being the High Court, dismisses an appeal under Sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.
11-A. Time within which hearing under Rule 11 should be concluded.--Every appeal shall be heard under Rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed.
12. Day for hearing appeal.--(1) Unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal.
(2) Such day shall be fixed with reference to the current 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.
14. Publication and service of notice of day for hearing appeal.--(1) Notice of the day fixed under Rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.
(2) Appellate Court may itself cause notice to be served.--Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to.
(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.
(4) Notwithstanding anything to the contrary contained in Sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.
(5) Nothing in Sub-rule (4) shall bar the respondent referred to in the appeal from defending it.
15. Contents of notice.--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."
10. The scheme of Rules 9 to 15 of the Code shows that where the appeal is in proper form namely where the memorandum has been drawn up in accordance with Rule 1 of Order XLI, the appeal is within limitation and is free from defects, it shall be registered in a book under Rule 12, called as Register of Appeal. The words 'admitted' in Rule 9, before its amendment vide Section 31 by Act No. 46 of 1999 (w.e.f. 1.7.2002) precede the stage of the hearing of the appeal by the Court. It is a function to be performed either by the Appellate Court or proper officer of the Appellate Court nominated for that purpose. After its registration, the appeal is to be listed expeditiously as provided under Rule 11-A before the Court, for hearing under Rule 11 The Appellate Court may after sending for record, if it thinks fit to do so and after fixing a date for hearing of the appellant or his pleader and hearing, may, on that day dismiss the appeal without sending notice to the respondents. Where the Court does not dismiss the appeal under Order XLI, Rule 11, it has to hear it under Rule 12 and for that purpose the Appellate Court shall fix a day for hearing, with reference to the condition regarding the current business of the Court, the place of residence of the respondents and time necessary for service of the notice of appeal, so as to allow sufficient time to the respondents to appeal and answer the appeal on such day.
11. Under the 'Rules of this Court, namely Rule 9 in Chapter XI of the Allahabad High Court Rules, 1952, where the memorandum of appeal has been properly drawn and is accompanied by judgment and decree is properly valued and Court-fees is paid and is within the time prescribed in the law, it is to be admitted by the Registrar assigned for admitting such appeal. It is only thereafter the appeal is listed before the Court for first hearing under Order XLI, Rule 11, and where the Court does not dismiss it, it can issue notice for hearing. It is under this scheme of the provisions of the Code and the Rules of this Court, the Division Bench on 9.3.2000 while hearing the appeal under Order XLI, Rule 11 of the Code directed that this appeal will be heard and that the notices be issued by the Registry by post as well as ordinary mode to the respondents. We find that order was perfectly in accordance with the provisions of the Code and that the order dated 9.3.2000 amounts to an order passed by the Court for hearing of the appeal. The admission of the appeal is stage anterior to hearing by the Court, and depends only on the fact that the memorandum is in prescribed form and is free from all other defects including limitation and the Court-fees. The memorandum of the appeal in such case is to be admitted by the Registrar of the Court. Under Rule 9 of Order XLI of the Code where the appeal is recorded to be defective, it is listed before the Court for removal of defects. The Court may at that stage accept the application for removing the defects and after such defects have been removed and the delay if any has been condoned, admit the appeal.
12. Rule 9 of Chapter-XI of the Allahabad High Court Rules, 1952 provides for hearing under Order XLI, Rule 11 of the Code and is quoted as below :
"9. Hearing under Order XLI, Rule 11 of the Code.--If the Bench before which a motion is made for the admission of an application or memorandum of appeal or objections filed that it is accompanied by the necessary papers, if any, and is otherwise in order and has been presented within time, it shall--
(a) in the case of a First Appeal (other than Execution First Appeal) or a memorandum of objections made on order admitting it and directing notice to be issued;
(b) in the case of any appeal admit it and after admitting it--
(i) if it deems fit, hear it the same day under Rule 11 of Order XLI of the Code and if it not dismissed under that Rule, direct that notice be issued; or
(ii) direct that the appeal be put up for hearing under Rule 11 or Order XLI of the Code on a future date;
(c) in the case of an application, pass such order as may be considered proper:
Provided that nothing contained in this Rule shall-
(i) preclude such Bench from hearing any First Appeal, if consented to by the appellant, under Rule 11 of Order XLI of the Code the same day or directing that it be put up for hearing under that Rule on some future date; or
(ii) require such Bench to direct notice of an application or memorandum of objections to be issued where notice of such application or memorandum of objections has already been served on the other party or his Advocate."
13. The Rules of the Court have been made under Article 225 of the Constitution of India and other powers enabling it, in that behalf. The Rules in Chapter-II are framed with reference to Section 122 of the Code. The High Court can under these powers make Rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence and may by such Rules annual, alter or add to all or any of the Rules in the first Schedule. Where the Rules made by the High Court under Section 122 of the Code are in conflict with the Rules made in the first Schedule of the Code, the High Court Rules being special Rules will prevail. We, however, find that Rule 9 in Chapter-II of the Rules of the Court is in consonance with the scheme of the procedure of admission of appeals under Rules 9 to 15 of Order XLI of the Code.
14. The power to register an appeal under Order XLI, Rule 9 of the Code has been more particularly prescribed for the purposes of the High Court in which the Registrar is the Principal Officer of the Court. The registrar is authorised to accept the appeal presented before him during Court hours and on the reopening days after vacation. Under Rule 13 of the Rules of the Court if the, memorandum of the appeal is defective or an objection is pointed out in the office report, the Registrar is required to cause a notice of the defect to be served on the Advocate of the appellant and objector or the applicant as the case may be and require him to remove the defect within seven days of the receipt of notice. The objections filed if any under Sub-rule (1) of Rule 13 shall along with record be listed immediately for orders before the Registrar. If the Registrar allows the objection, he shall proceed to deal with the such appeal or objection or application as if it had been reported to be in order. If the defect is not removed within the time specified, the memorandum or application shall be listed for rejection before the Court and shall be rejected unless the Court under Sub-rule (3) for a sufficient cause supported of an affidavits, grants further time for its removal. On expiry of such further time, if the defect is not removed the Court shall reject the memorandum. The proviso to Sub-rule (3) provides that no order passed under Provisions of Rule 13 shall be deemed to extend the period of limitation.
15. Under Rule 9 of Chapter-XI, if the Bench before which the motion is made for admission of the application or memorandum of appeal or objections find that it is accompanied by necessary papers if any and is otherwise in order and has been presented within time, shall admit the appeal. The Bench can hear it on the same day under Order XLI, Rule 11 and if it is not dismissed under that Rule, direct the notice to be issued and direct the appeal to come up on any further date.
16. The Provisions of Rules 9 to 13 of Chapter-XI of the Rules of the Court provide to adopt the same procedure as in the Code for the purpose of the High Court. The word 'admit it' under Rule 9(b) under Chapter-IX of the Rules of the Court are only descriptive of the order which may otherwise be passed under Order XLI, Rule 11 of the Court where the memorandum of appeal is not defective, and the Court does not dismiss the appeal and fixes a date for hearing under Rule 11 (1) of Order XLI of the Code. The order amounts to admission of the appeal. In Shanti Swaroop v. Radhey Shyam Satsang, Agra, AIR 1969 Alld. 2486, this Court held that filing of the appeal before the Registrar does hot amount to admission. The Registrar under Rule 9 of Chapter-XI of the Rules of the Court cannot admit an appeal. The order of admission is to be passed by the Court. Where the cross-objection was filed after the date of admission of the appeal by the Court, within the prescribed period, it cannot be treated to be beyond time with reference to the date of the presentation of the appeal before the Registrar of the Court.
17. In Sahib Singh v. State of U.P. 1969 ALJ 177, this Court held that in words of Code of Civil Procedure an appeal is admitted automatically if it is not defective, and after admission it is entered in the register of appeals. The Court ordinarily calls it admission and summary hearing under this Rule, is the hearing of the appeal under Order XLI, Rule 11 of Code. The facts in this case were that the suit was instituted under Section 229-B of UP Zamindari Abolition and Land Reforms Act, for declaration that plaintiff was sirdar of the land in dispute. The suit was decreed by Sub-Divisional Magistrate. The decree was confirmed in appeal. A second appeal was preferred before the notification under Section 4 of U.P. Consolidation of Holdings Act was published. It was not brought to the notice of Board of Revenue that hearing of second appeal is to be stayed. The second appeal was summarily dismissed under Order XLI, Rule 11 of CPC on 28.12.1961 i.e. after the notification under Section 4 of U.P. Consolidation of Holdings Act was published on 13.9.1961. It was held that only pending appeals can be heard under Rule 11 of Order XLI and that for certain purposes, the appeal shall be deemed to be pending after being entered in the register of appeals. Explaining the scheme of the Code, learned Judge held that where a memorandum of appeal is drawn in a prescribed manner and is entertained and after admission under Rule 9(1) an appeal is entered in the register of appeal, it is a pending appeal. It is thereafter that a date for hearing the appellant or his pleader under Order XLI, Rule 11, CPC is fixed. The words 'admission' or 'admit' has not been used in Rule 11. It has been used only in Rule 9. Under the Code an appeal is admitted automatically if it is not defective. The words ordinarily called admission under Order XLI, Rule 11, CPC or summary hearing under this Rule is the hearing of appeal under Order XLI, Rule 11, CPC.
18. In Krishnaji Jalwadi v. Madhusu Appansa Ladaba, AIR 1934 Bom. 2007, and in Unamma Pillai, Laxmi Kullu Pillai v. Padmabha Pillai, Belaudhaya Pillai, AIR 1953 Travencore Cochin 247, it was held that, non-dismissal of the appeal under Order XLI, Rule 11, CPC is in fact admission of the appeal by the Court. In these cases the question involved was whether under Order XLI, Rule 11, CPC the appeal could be admitted in part or rejected for the rest.
19. In Chintapatla Venkata Narsimha Ram Chandra Rao and Ors., In Re, AIR 1933 Mad. 235, it was held that a memorandum of appeal, which has not been registered is not to be regarded as an appeal but only a memorandum of appeal presented to the Court. The period of limitation is not extended where such memorandum was returned to remove the defects and is thereafter presented within such period. We find that the proviso to Sub-rule (3) of Rule 13 of Chapter-XI of the Rules of the Court, specifically makes such a provision and clarifies that the period spent for removing the defects shall not be deemed to extend the period of limitation. Similar view was expressed in Musla Annaji Rao v. Bagga Rapu Papainah Seppy, AIR 1975 AP 73.
20. From the scheme of Order XLI of the Code and Rules 9 to 13 of Chapter XI of the Rules of the Court, we find that the presentation of the memorandum of appeal before the Registrar of the Court and its acceptance subject to condition that there is no defect in the appeal, arrests the limitation and amounts to admission of the appeal. The appeal will be treated to be admitted for all purposes except such purpose like issuance of notice, filing of cross-objections etc. Where the memorandum of appeal is defective and such defect is not removed within prescribed time the appeal is to be listed before the Court under Order XLI, Rule 11, and that in such case the Court passes an order of admission of appeal, under Rule 9 of the Chapter XI of the Rules of the Court. Where the appeal is in order and has been admitted by the Registrar, the hearing under Order XLI, Rule 11 is not for admission of the appeal, but no find out whether the appeal requires hearing. If the Court does not dismiss the appeal, it shall issue notices to the opposite parties.
21. On the aforesaid discussions, the answer to the second question is also not difficult to find. The presentation of memorandum of appeal under Order XLI, Rule 9, if it is otherwise in order and no defect is reported or if it is cured and is registered in the register of appeals amounts to admission of the appeal which arrests the limitation. The order of dismissal of appeal, however, can be passed only by the Court and not by the office which include the Registrar.
22. Our answer to the questions referred to us is as follows;
1. Where the appeal is otherwise in order and no defect is reported, and has been accepted by the Registrar of the Court, the order under Order XLI, Rule 11 of CPC, and where the appeal upon hearing the appellant or his Counsel is not dismissed, the order that the appeal will be heard, amounts to admission of the appeal
2. The Registrar of the Court can accept the memorandum of appeal, and if there is no defect, or where the defect has been removed after giving time to the appellant or his Counsel the appeal is to be admitted. In other case he shall list the case before the Court. The Registrar can not dismiss the appeal. The Bench Secretary has no authority to admit the appeal or to treat the appeal to be admitted, without their being any order of the Court to that effect.
23. Since we find that the minor Mohd. Zeeshan had attained the age of majority and has liberty to choose the place where he may live, the relief claimed in the suit has become infructuous. Consequently the appeal is allowed and the suit is dismissed.