Order XLI Rule 26A CPC: Order of Remand to Mention Date of Next Hearing
Order 41 Rule 26A of the Code of Civil Procedure, 1908 requires the appellate court to fix a date for the parties to appear before the court whose decree was appealed against when it remands a case or refers issues for trial under specified rules.
Text of Order XLI Rule 26A
26A. Order of remand to mention date of next hearing. - Where the Appellate Court remands a case under rule 23 or rule 23A, or frames issues and refers them for trial under rule 25, it shall fix a date for the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court as to further proceedings in the suit.
Source: India Code, Code of Civil Procedure, 1908 (official consolidated text). The provision was inserted by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976), effective 1 February 1977. State amendments and applicable High Court rules should also be checked.
Meaning and purpose of Rule 26A
The expression remand means sending a case back to a lower court for further proceedings as directed by the appellate court. Rule 26A ensures that the remand or reference order specifies when the parties must appear before the court whose decree was appealed from. That court can then give directions about the next procedural steps.
The word shall imposes a duty on the appellate court to fix an appearance date in the situations covered by this rule. Rule 26A does not itself prescribe a fixed number of days, nor does it independently authorize a remand where the requirements of Rules 23, 23A or 25 are absent.
When does Order 41 Rule 26A apply?
| Related provision | Legal position | Effect of Rule 26A |
|---|---|---|
| Order XLI Rule 23 | Remand where the suit was decided on a preliminary point and that decree is reversed on appeal, if the appellate court considers remand appropriate. | Fix the date for parties to appear before the court below. |
| Order XLI Rule 23A | Remand in other cases where the decree is reversed and a retrial is considered necessary. | Fix the appearance date in the remand order. |
| Order XLI Rule 25 | Reference of omitted essential issues or factual questions for trial and findings; the appeal remains pending before the appellate court. | Fix the appearance date before the court receiving the referred issues. |
Procedure after a remand or reference
- The appellate court makes an order under Rule 23, 23A or 25, as applicable.
- It specifies a date for the parties to appear before the court from whose decree the appeal was preferred.
- The parties attend that court to receive directions for the next proceedings.
- In a remand under Rule 23 or 23A, the court below proceeds in accordance with the appellate directions and the governing procedural law.
- In a Rule 25 reference, the court below records the required evidence and findings and returns them to the appellate court, which then proceeds with the appeal under Rule 26.
Distinction between remand and reference of issues
Under Rules 23 and 23A, the case is remanded for further adjudication by the court below. Under Rule 25, only specified issues are referred for trial and findings; the appellate court retains the appeal for final determination. Rule 26A applies to both situations for the limited purpose of fixing the parties' appearance date.
Practical illustration
Suppose an appellate court reverses a decree and orders a retrial under Rule 23A. Its remand order should also state the date on which the parties must appear before the trial court to receive directions. Similarly, if the appellate court sends a particular factual issue for findings under Rule 25, it should fix an appearance date before that court, although the appeal continues before the appellate court.
Frequently asked questions
Is the next hearing date mandatory in a remand order?
Rule 26A directs the appellate court to fix a date for appearance where the order is made under Rule 23, Rule 23A or Rule 25. Whether an omission affects a particular order depends on the facts and applicable law.
Does Rule 26A apply to every appellate order?
No. It specifically concerns remands under Rules 23 and 23A and references of issues under Rule 25.
Does Rule 26A prescribe a deadline for completing the retrial?
No. It concerns the date of appearance before the court below, not a universal deadline for completing a retrial. In a Rule 25 reference, the appellate court may fix or extend the time for return of findings under that rule.
Official legal reference
Read the Code of Civil Procedure, 1908 on India Code for the statutory text of Order XLI, Rules 23 to 27. The statutory wording and any applicable local amendments should be verified for the relevant court.
This article provides general legal information and is not a substitute for advice on an individual case.