Judicial functions related to appeal admissions under Order 41 Rule 11 cannot be delegated to administrative staff but must be performed by the court, as established by substantive provisions of the CPC.

ORDER :

N. Sathish Kumar, J.

Heard the learned counsel appearing for the appellant.

2. According to the learned counsel appearing for the appellant, except Item No.2 and part of Item No.3, he has no other grievance in respect of other properties. It is his contention that the Item No.2 is the separate property of his mother. Similarly, Item No.3, in respect of 72 cents, preliminary decree ought not to have been granted.

3. Taking note of the above submissions, this appeal is admitted for the above limited purpose.

4. Notice to the respondent returnable by 23.06.2025. Private notice is also permitted.

5. In the meanwhile, the registry is directed to call for the records from the trial Court.

6. Till such time, passing of final decree alone is stayed.

7. An attention of this Court has been drawn to a decision of a Hon'ble Division Bench of this Court in the case of V.S.Chandrasekaran vs. R.Uma in A.S(MD).No. 5 of 2025 dated 25.04.2025, wherein, esteemed Brother Judge, Mr. Justice G.R.Swaminathan, who authored the judgment after referring to Karupuchetty's case has observed as follows:

“The Hon'ble Judge after citing quite a few decisions of the Hon'ble Supreme Court (U.P.Avas Evam Vikas Parishad vs. Sheo Narain Kushwaha (2011) 6 SCC 456, Salem Advocate Bar Association, Tamil Nadu vs. Union of India (2005) 6 SCC 344 and Mahadev Govind Gharge vs. Special Land Acquisition (2011) 6 SCC 321 ) rightly concludes that the aforesaid amendment had taken away the right of automatic admission and that every appeal has to be posted before the court under Order 41 Rule 11 of CPC for orders as to admission. No exception can be taken to this conclusion and the approach is, if we may say with respect, well-founded. But that would be the position only if the procedure regarding admission of first appeals filed under Section 96 of CPC is governed by Order 41 of CPC alone.”

8. From the above, it is clear that the Hon'ble Division Bench did not take exception to the conclusion that every appeal has to be posted before the court under Order 41 Rule 11 of CPC for orders as to admission. My humble view is that right of appeal emanates from the substantive provision of Code, i.e., Section 96 of Code of Civil Procedure and not under Order II Rule 3 of the Appellate Side Rules, Madras High Court. The Division Bench, thereafter, extracted Order II of the Appellate Side Rules in its entirety and has observed as follows:

“Obviously, there is an inconsistency between Order 41 Rules 9 and 11 of CPC as interpreted by the Hon'ble Supreme Court and Order II Rules 1 to 3 of the Appellate Side Rules of the Madras High Court. His Lordship Mr.Justice N.Sathish Kumar is of the view that since the Appellate Side Rules were framed prior to the 1999 amendments to Order 41 of CPC, they have to give way. We respectfully disagree with the said view.”

9. This Court in the case of Karupuchetty @ Vaiyapuri (Died) v Papathi vide order dated 07.03.2025 made in A.S.No.148 of 2025 had examined the issue as to whether a first appeal under Section 96 of Code of Civil Procedure, 1908 was to be admitted automatically or whether the appeal ought to be listed for preliminary hearing for admission under Order XLI Rule 11. This Court took note of amendment to Order XLI Rule 9 and 11 by virtueof Act 46 of 1999 and found that the amended Order XLI Rule 11 did not require the Court to send for the record for the purposes of considering the appeal for admission/preliminary hearing. Therefore held that the old practice of the appeal being admitted by the Deputy Registrar under Rule 216 of the Standing Order cannot continue since the amended Order XLI Ru