Chamber Notes
The Memorandum of Appeal: The Closed List That Binds One Side
7 September 2026 · 15 min read
A memorandum of appeal is usually drafted from the judgment outwards. The findings are read, the ones that are wrong are marked, and what gets typed is a running account of the suit — who sued whom, what was pleaded, what the witnesses said, where the trial court went astray — with a set of grounds appended at the end, often lettered rather than numbered, and often ending in the phrase that the appellant craves leave to add to or amend the grounds at the time of hearing.
Order XLI Rule 1(2) of the Code of Civil Procedure asks for something close to the opposite of that document, and Rule 2 attaches a consequence to the difference. Together they set up an asymmetry that is easy to state and easy to forget: the grounds bind the appellant and do not bind the Court.
What Rule 1 requires
Rule 1(1) provides that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf, and that the memorandum shall be accompanied by a copy of the judgment. The closing words of that sentence were substituted by the Code of Civil Procedure (Amendment) Act, 1999 (Act 46 of 1999), with effect from 1 July 2002. A proviso allows the Appellate Court, where two or more suits were tried together and a common judgment delivered, and two or more appeals are filed against a decree covered by that judgment, to dispense with the filing of more than one copy of the judgment.
Rule 1(2) is the operative sentence for drafting: "The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively."
Five separate requirements are packed into it.
The grounds must be of objection to the decree appealed from. Not to the judgment, and not to individual findings for their own sake. An appeal under Section 96 lies from a decree; the judgment is the reasoning that produced it. A ground which, even if accepted, would leave the decree exactly where it is has not been framed against the right thing.
They must be set out under distinct heads. One ground, one head. A paragraph that carries three objections is not three grounds, and the difficulty it creates is not aesthetic — Rule 2 operates ground by ground, and a compound paragraph makes it uncertain what was taken.
They must be concise. The requirement is not stylistic. A ground is concise when it can be read once and understood as a single objection; anything longer is usually carrying the argument inside it, which the same sentence goes on to forbid.
They must contain no argument or narrative. This is the express prohibition, and it is the one most often disregarded. The facts of the suit are not grounds. The evidence is not a ground. The authority relied on is not a ground. The ground is the objection; the argument is what is made in support of it at the hearing.
And they must be numbered consecutively. Not lettered, and not renumbered from one under fresh headings.
Rule 1(3), inserted by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) with effect from 1 February 1977, adds that where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. The obligation is the appellant's, but both the time for performing it and the choice between deposit and security are left to the Appellate Court, so nothing is forfeited by presentation alone. What the sub-rule settles is that the question can be raised at the threshold, which is a reason to have an answer to it ready before the appeal is filed rather than after.
Rule 2, read in two halves
Rule 2 is a single sentence with a proviso, and it says two different things to two different people.
"The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground."
The first half is a restriction on the appellant. What is not in the memorandum cannot be urged, and cannot be heard in support of, except by leave. The rule does not say that leave will be refused, and in practice it is frequently granted; but it has to be asked for, which means the point has to be identified as a new ground and put to the Court as one. A prayer at the foot of the memorandum reserving liberty to add grounds is not leave. It is a request that no one has yet ruled on.
The second half is not a restriction at all. The Appellate Court, in deciding the appeal, is expressly not confined to the grounds in the memorandum or to those taken by leave. It may decide the appeal on a ground nobody pleaded.
The proviso supplies the only limit, and it is a limit of procedure rather than of subject-matter: the Court shall not rest its decision on any other ground unless the party who may be affected has had a sufficient opportunity of contesting the case on that ground. What the proviso protects is the opportunity to answer, not the boundary of the appeal.
Set the halves side by side and the design is plain. The memorandum is a closed list for the person who filed it and an open one for the Court that reads it. The appellant's ceiling is his own drafting; the Court's is only the requirement that whoever stands to lose by a new ground be heard on it first.
What happens to a memorandum that does not comply
Rule 3(1) provides that where the memorandum of appeal is not drawn up in the manner prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court, or be amended then and there. Rule 3(2) requires the Court, where it rejects a memorandum, to record the reasons for the rejection. Rule 3(3) requires that where a memorandum is amended, the judge, or such officer as he appoints, shall sign or initial the amendment.
Three points follow.
Rejection is discretionary, not automatic — "may be rejected" — and the rule offers two alternatives to it in the same breath.
Rejection is a reasoned order. Sub-rule (2) makes it so, which means it is a disposal capable of being examined, not an administrative return across a counter.
And an amendment carries a signature. Sub-rule (3) is a small provision with a practical use: it fixes the date and authorship of the change, so that what the memorandum contained at any given point is determinable from the record rather than from recollection. A ground inserted informally into a fresh print of the same document has none of that protection, and the question under Rule 2 is precisely whether the ground was set forth in the memorandum.
The application that has to travel with it
Rule 3A, inserted by the same 1976 amending Act with effect from 1 February 1977, deals with a memorandum presented out of time. Sub-rule (1) provides that when an appeal is presented after the expiry of the period of limitation, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.
The word is "accompanied". The application is not something to be moved when the office objects; it is part of what is presented. And the substance required is facts on affidavit, not a formula. An application which states that the delay was on account of the appellant's illness, and annexes nothing, sets forth a conclusion rather than the facts on which the Court is to be satisfied.
Sub-rule (2) provides that if the Court sees no reason to reject the application without the issue of a notice to the respondent, notice shall be issued and the matter finally decided before the Court proceeds to deal with the appeal under Rule 11 or Rule 13. The delay question is thus decided first and separately; it is not folded into the hearing on admission.
There is a loose end in that sentence worth noticing. Rule 13 — "Appellate Court to give notice to Court whose decree appealed from" — was omitted by the same 1999 amending Act, with effect from 1 July 2002. Rule 3A(2) still refers to it. The cross-reference now points at nothing, which is a reminder that the Code is a compilation rather than a redraft, and that a rule's internal references are not always a safe guide to what is currently in force.
Sub-rule (3) is the one with immediate consequences for an appellant who wants interim protection. Where an application under sub-rule (1) has been made, the Court is not to order stay of execution of the decree so long as it has not, after hearing under Rule 11, decided to hear the appeal. A time-barred appeal therefore carries no stay until two things have happened: the delay has been condoned, and the Court has decided at the Rule 11 stage to hear the appeal. Rule 11(1) permits the Appellate Court, after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears, to dismiss the appeal. Rule 11A adds that the endeavour shall be to conclude the Rule 11 hearing within sixty days from the date on which the memorandum of appeal is filed.
The respondent's memorandum
Rule 22(1) allows a respondent who has not appealed to do more than support the decree. He may state that a finding against him in the Court below on any issue ought to have been in his favour, and may take any cross-objection to the decree which he could have taken by way of appeal, provided he files the objection within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may allow.
Two features of that provision matter for drafting.
The period runs from service of notice of the day fixed for hearing — not from the filing of the appeal, not from the decree, and not from the appellant's service of the memorandum. It is an event that arrives from the Court, and it starts a one-month clock on a document that has to be drafted from scratch.
And Rule 22(2) provides that the cross-objection shall be in the form of a memorandum, and that the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, apply to it. Everything Rule 1(2) requires of the appellant's grounds — distinct heads, no argument or narrative, consecutive numbering — is required of the respondent's objections as well.
The Explanation to Rule 22(1) settles a question that would otherwise be awkward: a respondent aggrieved by a finding in the judgment on which the decree is based may file a cross-objection in respect of the decree in so far as it is based on that finding, even though, because of the Court's decision on some other finding sufficient to dispose of the suit, the decree is wholly or in part in his favour. A party who has won the decree but lost a finding is not without a remedy.
Rule 22(4) adds that where a respondent has filed a memorandum of objection and the original appeal is then withdrawn or dismissed for default, the objection may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. The cross-objection, once filed, has a life of its own.
What a ground has to be capable of doing
Two further provisions explain why the appellant's list is not the measure of what the appeal can produce.
Rule 33 gives the Appellate Court power to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require; and provides that the power may be exercised notwithstanding that the appeal is as to part only of the decree, and in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The illustration appended to the rule is the clearest statement of its reach: A sues X and Y for a sum of money and obtains a decree against X; X appeals, with A and Y as respondents; the Appellate Court decides in favour of X, and has power to pass a decree against Y.
Section 99 runs the other way. No decree shall be reversed or substantially varied, nor any case remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action, or any error, defect or irregularity in any proceeding in the suit, not affecting the merits of the case or the jurisdiction of the Court. A proviso, added in 1976, excepts non-joinder of a necessary party.
The two together mark out what a ground of objection is for. A ground has to be capable of altering the decree, because Rule 33 measures the outcome in those terms and Section 99 refuses to disturb a decree for anything that does not touch the merits or jurisdiction. Grounds framed against the reasoning, the conduct of the trial, or the language of the findings, without carrying the argument through to what the decree should have been, are not saved by the fact that they were numbered and set out under distinct heads.
The same rule at the next stage
Section 100 repeats the structure of Rule 2 in stricter terms for a second appeal. Sub-section (3) requires that the memorandum of appeal shall precisely state the substantial question of law involved. Sub-section (4) requires the High Court, where it is satisfied that such a question is involved, to formulate it. Sub-section (5) provides that the appeal shall be heard on the question so formulated, and that the respondent shall at the hearing be allowed to argue that the case does not involve that question; with a proviso preserving the Court's power to hear the appeal, for reasons to be recorded, on any other substantial question of law not formulated by it, if satisfied that the case involves such a question.
The pattern is identical and tightened. The appellant is confined to what he has stated, more strictly than under Rule 2 because what he states has to be precise and has to be a question of law. The Court is not confined, but has to record reasons before going outside — where Rule 2 requires only that the affected party be given a sufficient opportunity to contest.
A qualification
Order XLI is in the First Schedule, and under Section 122 a High Court may, after previous publication, make rules regulating its own procedure and that of the Civil Courts subject to its superintendence, and may by such rules annul, alter or add to any of the rules in the First Schedule. The paper-book format, the mode of presentation, the officer to whom a memorandum is presented, and the treatment of office objections are matters of local rule and practice, and they differ. What is set out above is the scheme of the Order, which is the floor. The rules of the particular Court have to be read with it.
The drafting consequence
Three things follow, and they are decided before the appeal is presented rather than at the hearing.
The grounds are drafted as the last step and treated as the operative part of the document, not as a summary of it. Each objection gets its own numbered head, stated as an objection to the decree, with the narrative and the argument left out. What is compressed into another ground for tidiness is a ground that has to be asked for later under Rule 2.
The prayer for liberty to add grounds is understood for what it is. It reserves nothing. If a ground is thought of after filing, the memorandum is amended under Rule 3, with the amendment signed or initialled, or leave is sought and obtained under Rule 2 on the record.
And a time-barred appeal is prepared as two documents, not one. The Rule 3A application, with the facts on affidavit, is presented with the memorandum; and no stay is available until the delay is condoned and the Court has decided at the Rule 11 stage to hear the appeal.
The prayer clause fixes what the Court is being asked to do. The memorandum of appeal fixes what the appellant may say in support of the asking — and, because Rule 2 binds only him, it is the one document in the appeal where the drafting limits nobody but the person who drafted it.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.