Order XLI Rule 21 CPC - Rehearing an Ex Parte Appeal

Order 41 Rule 21 of the Code of Civil Procedure, 1908 permits a respondent against whom an appellate judgment was pronounced in their absence to seek a rehearing when notice was not duly served or sufficient cause prevented attendance.

What is Order XLI Rule 21 CPC?

Order XLI governs appeals from original decrees. Rule 21 provides a specific remedy to a respondent when an appeal was heard ex parte (in the respondent's absence) and judgment was pronounced against that respondent. The application is made to the appellate court that heard the appeal.

Text and meaning of Rule 21

Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.

In practical terms, the respondent must establish at least one of the statutory grounds: defective service of notice or sufficient cause for non-appearance. Once the court is satisfied, the rule directs a rehearing, subject to appropriate conditions such as costs. The court does not automatically reverse the original decree on the merits merely because a rehearing is granted.

Conditions for a rehearing

  1. Ex parte appellate hearing: The appeal must have been heard without the respondent.
  2. Adverse appellate judgment: Judgment must have been pronounced against the respondent.
  3. Improper service or sufficient cause: The respondent must show that the appeal notice was not duly served, or that a sufficient reason prevented attendance when the appeal was called.
  4. Application to the appellate court: The request must be filed before the court that decided the appeal, with relevant supporting materials.

What is sufficient cause?

Sufficient cause means a reason accepted by the court as adequately explaining why the respondent could not appear. Depending on the evidence and circumstances, serious illness, an unavoidable emergency, or another genuine obstacle may qualify. A bare allegation, unexplained inaction or deliberate absence may not. The applicant should give a clear chronology and provide documents or an affidavit as appropriate.

Limitation period under Article 123

Article 123 of the Limitation Act, 1963 prescribes 30 days for an application to rehear an appeal decreed or heard ex parte. Ordinarily, time runs from the date of the decree. Where summons or notice was not duly served, time runs from when the applicant had knowledge of the decree. The Article also specifies that substituted service under Order V Rule 20 CPC is not deemed due service for its purpose.

Where the application is late, Section 5 of the Limitation Act, 1963 may permit condonation of delay if sufficient cause for the delay is established, subject to applicable law and judicial determination. Limitation and the grounds for rehearing are distinct questions and should both be addressed.

How to apply under Order XLI Rule 21

  1. Obtain the appellate judgment, decree and relevant case records, including service reports and hearing orders.
  2. Prepare an application identifying the appeal, date of judgment, circumstances of non-appearance and precise statutory ground.
  3. Attach an affidavit and supporting evidence, such as service records or medical documentation where relevant.
  4. Check limitation under Article 123 and, if required, file a separate request for condonation of delay.
  5. Serve the opposite party as directed and attend the hearing on the application.

The appellate court will consider the explanation and evidence. If the statutory ground is established, the appeal is reheard on terms the court considers fit; the eventual outcome of the appeal remains open for determination.

Related CPC provisions

  • Order XLI Rule 17 addresses dismissal for the appellant's default and hearing ex parte when the respondent does not appear.
  • Order XLI Rule 19 deals with readmission of an appeal dismissed for default on the appellant's application.
  • Order XLI Rule 20 concerns adding interested parties as respondents in an appeal.
  • Order XLI Rule 22 governs a respondent's right to support the decree and raise cross-objections.
  • Order IX Rule 13 deals with setting aside an ex parte decree at the trial stage; it is a different remedy from rehearing an ex parte appeal under Order XLI Rule 21.

Frequently asked questions

Can an appeal be reheard if the respondent did not receive notice?

Yes. If the appellate court is satisfied that notice was not duly served and the other requirements of Rule 21 are met, it shall rehear the appeal on such terms as it considers appropriate.

Is a rehearing automatic when the respondent was absent?

No. The respondent must establish defective service or sufficient cause for not appearing. Mere absence does not itself establish entitlement.

What is the time limit to seek rehearing?

Article 123 generally provides 30 days, calculated from the decree or, in the case of notice not duly served, from knowledge of the decree. A delayed application may require a Section 5 request.

Official legal sources

This article explains the central statutory framework. Applicable state amendments, High Court rules and binding judicial decisions should be checked for the relevant jurisdiction and case.