Code of Civil Procedure, 1908 | Order 45

Order XLV Rule 11 CPC - Effect of Failure to Comply with Order

Order XLV Rule 11 of the Code of Civil Procedure, 1908 explains what happens when an appellant does not comply with an order requiring further security or payment in proceedings connected with an appeal to the Supreme Court.

Key principle: Non-compliance stays the appeal proceedings. The appeal cannot proceed without an order of the Supreme Court, and execution of the decree under appeal is not stayed in the meantime merely because the appeal is pending.

Text of Order XLV Rule 11 CPC

Effect of failure to comply with order

Where the appellant fails to comply with such order, the proceedings shall be stayed, and the appeal shall not proceed without an order in this behalf of the Supreme Court, and in the meantime execution of the decree appealed from shall not be stayed.

Meaning and legal effect

The words "such order" refer to an order of the kind contemplated by Order XLV Rule 10, under which the court may require the appellant to provide adequate further security or make a necessary payment for preparation or transmission of the appeal record.

Proceedings shall be stayed: The procedural progress of the appeal is suspended when the appellant fails to comply with the relevant order.
Supreme Court order required: Once Rule 11 applies, the appeal may not proceed without an order of the Supreme Court authorising it to do so.
Execution is not stayed: During this period, the decree appealed from remains capable of execution, unless an effective stay arises under some other applicable order or provision.

Connection with Order XLV Rule 10

Rule 10 deals with the power to require additional security or payment after admission of an appeal but before transmission of the record to the Supreme Court. Rule 11 supplies the consequence if the appellant fails to obey that order. The provisions should therefore be read together.

Practical illustration

Suppose the court directs an appellant to deposit additional money for preparing and transmitting the appeal record within a fixed period. If the appellant does not make the payment, Rule 11 provides for a stay of proceedings. The appeal cannot continue without the Supreme Court's order, and the decree-holder is not prevented by that appeal alone from pursuing execution of the decree.

Section 109 CPC: Governs appeals to the Supreme Court from judgments, decrees or final orders in civil proceedings of a High Court, subject to the constitutional requirements. Article 133 of the Constitution: Addresses the certificate required for certain civil appeals to the Supreme Court. Article 136: Separately confers discretionary special-leave jurisdiction on the Supreme Court. The procedure and applicable rules depend on the route by which the Supreme Court is approached.

Order XLI Rule 5 CPC: States the general principle that an appeal does not by itself operate as a stay of proceedings under a decree or order; a stay must be ordered where legally available. Order XLV Rule 13 CPC: Addresses certain powers of the court pending an appeal to the Supreme Court.

Official legal sources

Consult the India Code portal for the Code of Civil Procedure, 1908 (Act 5 of 1908), the Constitution of India and the Supreme Court of India for applicable Supreme Court Rules, directions and practice information.

Legal information only. Statutory amendments, procedural rules and judicial orders applicable to the particular case should be checked before relying on this explanation.