Code of Civil Procedure, 1908 | Appeals from appellate decrees
Order XLII Rule 3 CPC - Application of Order XLI Rule 14 in Second Appeals
Order XLII Rule 3 of the Code of Civil Procedure, 1908 explains how a reference to the "Court of first instance" in Order XLI Rule 14(4) must be understood when the appeal arises from an appellate decree or order.
Order XLII Rule 3 CPC - Statutory provision
Heading: Application of rule 14 of Order XLI.
Reference in sub-rule (4) of rule 14 of Order XLI to the Court of first instance shall, in the case of an appeal from an appellate decree or order, be construed as a reference to the Court to which the appeal was preferred from the original decree or order.
Order XLII Rules 2 and 3 were inserted by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976), section 88, with effect from 1 February 1977.
Meaning and practical effect of Rule 3
Order XLI Rule 14 deals with publication and service of notice of the day fixed for hearing an appeal. Sub-rule (4) concerns when service of notice of proceedings incidental to an appeal is unnecessary for certain respondents. It refers to a respondent who has appeared and filed an address for service in the "Court of first instance" or who has appeared in the appeal.
In an ordinary first appeal, the Court of first instance generally means the court that originally tried the suit. In a second appeal governed by Order XLII, Rule 3 changes the meaning of that expression for the purpose of Order XLI Rule 14(4): it refers to the court in which the first appeal against the original decree or order was preferred.
This clarification helps identify the relevant earlier appellate proceedings when considering whether notice of an incidental proceeding must be served on a respondent. It does not itself create an unrestricted exemption from service; the requirements and exceptions in Order XLI Rule 14(4), and applicable court rules, still govern.
Related CPC provisions
Order XLI Rule 14 - Publication and service of notice
Rule 14 provides for notice of the hearing of an appeal and its service on respondents. Sub-rule (4), subject to its conditions, dispenses with notice of incidental proceedings to certain respondents who have not participated or provided an address for service. Sub-rule (5) preserves the right of a respondent referred to in the appeal to defend it.
Order XLII Rule 1 - Procedure in second appeals
Rule 1 applies the rules of Order XLI, so far as may be, to appeals from appellate decrees. Rule 3 supplies a specific interpretation for applying Order XLI Rule 14(4) in that setting.
Section 100 CPC - Second appeals
Section 100 provides for a second appeal to the High Court from an appellate decree of a subordinate court where the High Court is satisfied that the case involves a substantial question of law, subject to the statutory conditions. Order XLII Rule 2 addresses formulation of that question at the relevant stage.
Illustration of how Order XLII Rule 3 works
Suppose a civil suit is decided by a trial court, and the resulting decree is challenged before a district appellate court. A further second appeal is then filed before the High Court. When applying the reference to the "Court of first instance" in Order XLI Rule 14(4) to proceedings in the second appeal, Order XLII Rule 3 directs attention to the district appellate court where the first appeal was preferred, rather than the original trial court.
Whether notice is required in a particular proceeding depends on the respondent's participation, address for service, the nature of the proceeding, and applicable procedural rules.
Official legislation and further reading
Read the Code of Civil Procedure, 1908 (official India Code PDF), including Section 100, Order XLI Rule 14 and Order XLII Rules 1 to 3. State amendments and applicable High Court rules should also be checked where relevant.
This article explains the central CPC provisions for general legal information and is not a substitute for advice on a particular case.