JUDGMENT N. Kumar, J. 1. This is a plaintiff's regular first appeal under Section 96 of the Code of Civil Procedure, against the Judgment and Decree of the Trial Court, which has declined to grant the relief of specific performance of the contract of sale. 2. For the purpose of convenience, the parties are referred to as they are referred to in the suit. 3. The subject matter of the suit is landed property bearing Sy. No. 22/3 measuring 7-08 guntas and Sy. No. 270/1 measuring 0-02.08 guntas. Both are situated at Maranagere Village, Kasaba Hobli, Tiptur Taluk, situated within the boundaries mentioned in the schedule and herein referred to as the schedule properties. 4. The first defendant is the owner of the schedule property. He has offered to sell the schedule property to the plaintiff for a consideration of a sum of Rs. 53,75,000/-. An agreement of sale came to be executed on 21.07.2008 in favour of the plaintiff. Under the agreement, a sum of Rs. 1,00,000/- was paid. The receipt of which, the first defendant has acknowledged in the agreement itself. It is agreed the defendant No. 1 shall execute the registered sale deed in favour of the plaintiff within three months from the date of sale agreement, whenever the plaintiff called him to execute the registered sale deed. The defendant No. 1 shall execute the sale deed by receiving the balance sale consideration of the amount of Rs. 52,75,000/-. The case of the plaintiff is that the defendant No. 1 had agreed to get measured the suit properties from the competent authorities and to fix up the boundaries of the suit lands before execution of the registered sale deeds. Further, he agreed to furnish the relevant documents and also kept ready for delivery of all the title deeds as and when demanded by the plaintiff. The time fixed was three months from the date of the completion of the above said formalities, i.e., measurement and fixing up of the boundaries of the suit lands. In the meanwhile, he secured the balance of sale consideration of Rs. 52,75,000/- and called upon defendant No. 1 to execute the registered sale deed in his favour as he was ready with the amount of balance of the sale consideration. But defendant No. 1, for some reason or the other was postponing the execution of the sale deed. In the meanwhile, he secured the balance of sale consideration of Rs. 52,75,000/- and called upon defendant No. 1 to execute the registered sale deed in his favour as he was ready with the amount of balance of the sale consideration. But defendant No. 1, for some reason or the other was postponing the execution of the sale deed. To the surprise of the plaintiff, he received a legal notice dated 03.11.2008 from the defendant No. 1 calling upon him to get registered the sale deed within Seven days from the date of receipt of the legal notice, failing which, the advance amount would be forfeited. The plaintiff issued a reply to the said legal notice on 10.11.2008 by reminding the defendant the measurement and fixing up of the boundary clause. The plaintiff also demanded defendant No. 1 to abide by the terms and conditions of the sale agreement. On 01.12.2008, defendant No. 1 sent a reply notice, by furnishing certain Photostat copies of the documents which were not relevant to the suit lands. The plaintiff got issued a reply dated 10.12.2008 by stating that the survey sketch along with the notice were of the years 1993 and 1998 and those documents are irrelevant pertaining to the sale agreement dated 21.07.2008 since the defendant No. 1 had clearly agreed to measure the suit lands and fix up the boundaries afresh in the presence of the plaintiff. In both the aforementioned legal notices, plaintiff demanded defendant No. 1 to comply with the terms of the sale agreement and further demanded him to execute the registered sale deed pertaining to suit lands. Despite the same, defendant No. 1 failed and neglected either to comply with the terms of the sale agreement or to execute the registered sale deed pertaining to the suit lands. Thereupon, the plaintiff issued a public notice through "Vijaya Karnataka", Kannada daily newspaper dated 30.04.2010 by informing the general public about the sale agreement dated 21.07.2008 executed by defendant No. 1 in his favour and by calling for objections, if any, from the third parties. Plaintiff did not receive any objections from third parties or intending purchaser. The plaintiff has been and was ready and willing to pay the balance consideration amount of Rs. 52,75,000/- to defendant No. 1 and get registered the sale deed at his expenses. Plaintiff did not receive any objections from third parties or intending purchaser. The plaintiff has been and was ready and willing to pay the balance consideration amount of Rs. 52,75,000/- to defendant No. 1 and get registered the sale deed at his expenses. There was no breach of contract on the part of the plaintiff. It was only the defendant No. 1 who has committed the breach of contract. The plaintiff is therefore entitled to enforce the agreement of sale executed by defendant No. 1. 5. In the meanwhile, even though the agreement of sale in favour of the plaintiff was subsisting and the time prescribed for payment of value of full consideration has not yet expired, the plaintiff came to know the second defendant in collusion with the first defendant, being aware of the agreement of sale in favour of plaintiff, got executed a registered sale deed dated 30.12.2010 in his favour and also took possession of the suit schedule properties from defendant No. 1. The defendant No. 2, being aware of the earlier suit agreement in favour of the plaintiff is not a bona fide purchaser of the suit schedule properties and the sale deed is a fraudulent one, unenforceable and not binding on the plaintiff. The defendant and everybody in the locality were well aware of the sale agreement dated 21.07.2008. On coming to know the sale in favour of defendant No. 1, the plaintiff approached both the defendants and enquired about the same. Both the defendants gave evasive answers. Therefore, the plaintiff was constrained to file the suit for specific performance of the agreement of sale and for execution of the sale deed, for possession of the suit schedule properties and for other consequential relief's. 6. Defendants 1 and 2, after service of summons entered appearance and filed a common written statement. They did not dispute the agreement of sale entered into between the plaintiff and defendants. The first defendant admitted the agreement of sale. The second defendant pleaded his ignorance about the agreement. The receipt of Rs. 1,00,000/- under the agreement dated 21.07.2008 was not disputed. The period of three months prescribed for execution of the sale deed was also not disputed. The first defendant admitted the agreement of sale. The second defendant pleaded his ignorance about the agreement. The receipt of Rs. 1,00,000/- under the agreement dated 21.07.2008 was not disputed. The period of three months prescribed for execution of the sale deed was also not disputed. However, it was stated that the allegation where the defendant No. 1 has agreed to get measured the suit schedule properties from competent authorities and to fix up the boundaries, etc., is not correct. In fact, the understanding between the plaintiff and the first defendant was that relevant documents has to be made ready for the purpose of registration. The allegation that time was fixed as three months from the date of completion of the above said formalities are not correct. The allegation that the plaintiff was ready to pay the balance sale consideration and defendant No. 1, for some reason or the other was postponing execution of the sale deed, etc., are absolutely false. The issue of the legal notice, the reply notice, yet another legal notice and the publication in "Vijaya Karnataka", Kannada daily newspaper are all admitted. The allegation that the plaintiff was ready and willing to perform his part of the contract was specifically denied. 7. After traversing the allegations in the plaint, the defendants have set out their version. The first defendant executed agreement to sell in favour of the plaintiff, agreeing to sell the suit schedule properties for consideration of Rs. 53,75,000/-. A sum of Rs. 1,00,000/- was received under the agreement. A period of three months was fixed for execution of the sale deed as the first defendant being an aged person was in urgent need of money. The first defendant was always ready and willing to execute the registered sale deed as per the terms of the agreement. The first defendant also made everything ready in order to facilitate due registration of the sale deed in favour of the plaintiff. In spite of repeated requests and demand made by the first defendant, the plaintiff failed to get the sale deed registered in his favour and went on postponing under one pretext or other. The first defendant got issued a legal notice dated 03.11.2008 calling upon the plaintiff to pay the balance of sale consideration of Rs. In spite of repeated requests and demand made by the first defendant, the plaintiff failed to get the sale deed registered in his favour and went on postponing under one pretext or other. The first defendant got issued a legal notice dated 03.11.2008 calling upon the plaintiff to pay the balance of sale consideration of Rs. 52,75,000/- within Seven days of receipt of the notice, failing which the advance amount will be forfeited and the agreement stands cancelled. The plaintiff gave an evasive reply dated 10.11.2008 stating that the first defendant has to furnish all relevant documents, get the land measured and to fix up the boundaries. The said contention of plaintiff is not at all a bona fide contention. Therefore, the first defendant got another notice issued on 01.12.2008 along with Photostat copies of all relevant documents, which were quite sufficient to get the sale deed registered. The plaintiff, knowing fully well that all the documents are ready for registration and since he was not ready to get the sale deed registered, issued another evasive reply dated 10.12.2008. The act of the plaintiff throughout was not a bona fide one. The plaintiff having paid small advance amount of Rs. 1,00,000/- wanted to take the first defendant for a ride since the first defendant was aged about 81 years and he was in need of money at the time of the execution of the agreement and on account of failure on the part of the plaintiff, he suffered heavy loss. Since he was in urgent need of money, he executed a registered sale deed in favour of the second defendant dated 30.12.2010 for consideration of Rs. 25,00,000/-. The first defendant suffered huge loss on account of default committed by the plaintiff. 8. The second defendant pleaded that he was not at all aware of the agreement between the plaintiff and the first defendant and no relief can be claimed against second defendant. Since the first defendant was in urgent need of money, executed a registered sale deed in favour of second defendant. Since the time is the essence of contract and the said time has been fixed under notice and on account of non-performance of the obligation by the plaintiff, the agreement having been cancelled and the advance amount having been forfeited, the plaintiff is not entitled to any relief even against the first defendant. Since the time is the essence of contract and the said time has been fixed under notice and on account of non-performance of the obligation by the plaintiff, the agreement having been cancelled and the advance amount having been forfeited, the plaintiff is not entitled to any relief even against the first defendant. The second defendant being a bona fide purchaser of the suit schedule properties from the first defendant, the plaintiff is not entitled to any relief against the second defendant also. 9. On the aforesaid pleadings, the Trial Court framed the following issues: i) Whether the plaintiff proves that he was ever ready and wiling to perform contract? ii) Whether defendant proves that plaintiff failed to comply the terms and conditions of agreement to sell? iii) Whether defendant proves that he has legally terminated the contract and forfeited advance amount? iv) Whether the plaintiff is entitled for the relief as prayed for? v) What order or decree? 10. The plaintiff, in order to substantiate his claim got himself examined as PW-1 and produced 21 documents, which are marked as Exs. P1 to P21. On behalf of the defendants, first defendant was examined as DW-1 and second defendant was examined as DW-2 and they produced 18 documents, which are marked as Exs. D1 to D18. 11. The Trial Court on consideration of the aforesaid oral and documentary evidence on record, held that the plaintiff has failed to prove that he was ever ready and willing to perform his part of the contract. The defendant has proved that the plaintiff has failed to comply with the terms and conditions of the agreement to sell. The Court below held that the contract is validly terminated but it held that the defendant was not justified in forfeiting the amount of Rs. 1,00,000/- received by him under the agreement. Therefore, it passed a decree dismissing the suit of the plaintiff for specific performance of the contract but decreed the suit directing the first defendant to pay Rs. 1,00,000/- with interest at 12% p.a. from the date of the agreement till the realization of the decreetal amount. Aggrieved by the Judgment and Decree of the Trial Court, the plaintiff is in appeal. 12. Sri. S.P. Shankar, Senior Counsel appearing for the plaintiff/appellant contended that it is a regular first appeal filed under Section 96 read with Order 41 Rule 1 of CPC. Aggrieved by the Judgment and Decree of the Trial Court, the plaintiff is in appeal. 12. Sri. S.P. Shankar, Senior Counsel appearing for the plaintiff/appellant contended that it is a regular first appeal filed under Section 96 read with Order 41 Rule 1 of CPC. Section 96categorically states, "an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court". Once the statute gives such a right, the question of dismissing such an appeal at the stage of admission is not permitted in law and therefore, the Court cannot at the stage of admission dismiss the appeal on merits. 13. Secondly he contended that time was not the essence of the contract. Under the contract, there were mutual obligations to be performed by each party to the contract. The condition precedent for plaintiff to pay the balance sale consideration was that the first defendant has to furnish all the documents of title, get the property measured and boundaries fixed. It is only thereafter that the defendant No. 1 had to call upon the plaintiff to pay the money. He was ready with the money, which he would have paid and therefore, the Trial Court without properly appreciating the terms of the contract, the evidence on record, erred in holding that plaintiff was not ready and willing to perform his part of the contract. In fact, the defendant has produced the certified copy of the other proceedings initiated by the plaintiff to demonstrate that he is in the habit of entering into the agreements, committing defaults and filing suits, which evidence has been taken into consideration by the Trial Court, in order to refuse to exercise the discretion vested in the Court under Section 20 of the Specific Relief Act. The discretion, which is vested under Section 20 is a judicial discretion and he has not judiciously exercised his jurisdiction and he has taken into consideration the irrelevant facts and therefore, on that ground, the Judgment and Decree of the Trial Court requires to be set aside. 14. Sri. A. Ravishankar, the learned counsel for the defendant - respondent contended that under the terms of the contract, the plaintiff should have called upon the defendant to perform his part of the contract within the period of three months stipulated under the agreement. 14. Sri. A. Ravishankar, the learned counsel for the defendant - respondent contended that under the terms of the contract, the plaintiff should have called upon the defendant to perform his part of the contract within the period of three months stipulated under the agreement. The plaintiff ought to have been ready and willing to perform his part of the contract and to perform such act, he must be ready with the balance sale consideration within the stipulated time and he should have issued a legal notice to the defendant calling upon him to perform his part of the contract. On the contrary, it is the defendant, who issued the notice reminding the plaintiff of his obligation and again giving him seven days time to perform his part of the contract. But however, the plaintiff, in the given time did not perform his part of the contract and raised all untenable objections contrary to the terms of the agreement, which necessitated the defendant to terminate the contract. As he was an old man of 80 years and he was very badly in need of money, he had to sell the property to a lesser amount of Rs. 25,00,000/- thus, incurring huge loss and therefore, he submitted that the finding of the Trial Court that, the plaintiff was not ready and willing to perform his part of the contract does not call for interference. The defendant has validly terminated the contract. It cannot be faulted with. It is based on legal evidence. Therefore, he submits that no case for even admission of the appeal is made out. 15. In the light of the aforesaid facts and circumstances of the case, the points that arise for our consideration in this appeal are as under: (1) Whether this Court is bound to admit an appeal filed under Section 96 of the Code of Civil Procedure, in other words it has no power to dismiss the appeal at the stage of admission? (2) Whether the finding of the Trial Court that the plaintiff was not ready and willing to perform his part of the contract at any point of time calls for interference? (3) Whether the finding of the Trial Court that the defendant has validly terminated the contract is erroneous? POINT No. 1 16. (2) Whether the finding of the Trial Court that the plaintiff was not ready and willing to perform his part of the contract at any point of time calls for interference? (3) Whether the finding of the Trial Court that the defendant has validly terminated the contract is erroneous? POINT No. 1 16. The right to appeal is one of entering a Superior Court to invoke its aid and intervention to set aside the errors alleged to have been committed by the Court exercising original jurisdiction. A right of appeal in hers in no one. The right of appeal is a substantive right conferred on a party by the statute. An appeal for its maintainability must have the clear authority of law. The right of appeal is described as a creature of statute. The right of appeal, which is a statutory right can be conditional or qualified. Unless a right of appeal is clearly given by statute, it does not exist whereas a litigant has independently of any statute has right to institute any suit of a Civil nature in some Court or another. The right of appeal is not a mere matter of procedure but is a substantive and vested right to be governed by the law prevailing at the date of the suit and not by the law that prevails at the date of decision or on the date of filing of the appeal. The vested right of appeal can be taken away only by a subsequent enactment, if it is so provided expressly or by necessary implication. The right of appeal being a creature of the statute, its scope must be determined by reference to the provisions of the statute conferring it. An Appellate Court can exercise only such powers as are confided to it. Section 96 of the Code of Civil Procedure provides a right of appeal. It reads as under: 96. Appeal from original decree. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex pane. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (2) An appeal may lie from an original decree passed ex pane. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees. 17. Section 96 of the Code of Civil Procedure gives a right of appeal from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decision of such Court. An appeal under Section 96 lies only from a decree. The jurisdiction of the Court in the First appeal is to the extent conferred by the Legislature. No litigant possesses any natural or inherent right to appeal against any order, unless a statute confers it and it is to the extent it is conferred. Therefore, it is necessary to look at the statute as provided under the Code of Civil Procedure in order to understand the scope of appeal and the power vested in the Court to hear and decide such appeal. 18. Order 41 of the Code of Civil Procedure sets out meticulously the procedure for considering the appeals filed under Section 96 of the Code of Civil Procedure. Order 41 Rule1 deals with the format of the appeal which should be in the form of memorandum and the content of the memorandum. Rule 2 deals with grounds which may be taken in appeal whereas Rule 3 deals with rejection or amendment of memorandum. If an appeal is not filed within the time prescribed, Rule 3A provides for seeking condonation of delay. Rule 4provides for filing of common appeals where common question of law and facts are involved. Rule 5 deals with stay of judgments and decrees passed by the Trial Courts or by the Appellate Courts. It also provides for stay of the judgment and decree by the very Court that passed the decree pending appeal. Rule 6 provides for taking security for restitution of property taken while executing the decree appealed from. Further after the Rule 8 of the Code a special heading styled as "procedure on admission of appeal" is provided. 19. Therefore, it is necessary to understand the meaning of the word admission of appeal. Rule 6 provides for taking security for restitution of property taken while executing the decree appealed from. Further after the Rule 8 of the Code a special heading styled as "procedure on admission of appeal" is provided. 19. Therefore, it is necessary to understand the meaning of the word admission of appeal. The same is not provided in the Code. However, the Karnataka High Court, by virtue of the powers conferred by Article 225 of the Constitution India and Section 54 of the States Re-organization Act, 1956 (Central Act 37 of 1956) read with Sections 122 and 129 of the Code of Civil Procedure, 1908 and Section 19 the Mysore High Court Act(1 of 1884) and all other enabling powers has, with the previous approval of the Government of Karnataka, promulgated and issued, the High Court of Karnataka Rules, 1959 with respect practice and procedure to be followed at the High Court The said Rules define the following words as under: Rule 1 (e) - "Admission Judge" or "Admission Court" means the Judge for the time being dealing with admission of cases and with interlocutory applications: (p) - "To admit a case" means to decide to issue notice to respondent or direct issue of notice to respondent after preliminary perusal of papers or preliminary hearing under the provisions of Order 41, Rule 11 of the Code of Civil Procedure or section 421 of the Code of Criminal Procedure or any other like provision of any other law for the time being in force. (q) - "To Admit a Case to Register" or "To Register a Case" means entering the same in the appropriate register and giving it a number in accordance with the practice of the Court after the Registrar is satisfied that the papers of the particular case have been presented to the High Court within the time, if any, limited therefore by any law for the time being in force, that proper court fee, if any, payable in respect of those papers has been paid, that all enclosures required by or under these Rules have been furnished and that the papers in all respects comply with the provisions of law and of these Rules applicable to the same relating to the presentation of such papers. 20. 20. From the aforesaid definitions, it is clear that to admit a case means to decide to issue notice to respondent or direct issue of notice to respondent after preliminary perusal of papers or preliminary hearing under the provisions of Order 41 Rule 11 of the CPC. Further, it says that the words "Admission", "For Admission" or similar expressions shall be construed accordingly. Further, it makes it clear that where upon such preliminary perusal or hearing the Court decides not to issue notice, the case is said to be dismissed summarily. Therefore, the procedure on admission of appeal as prescribed under the Code is to be followed only when an appeal is admitted. 21. Order 41 applies equally to the Lower Appellate Court as well as the High Court. As the High Court has provided the Rules for Admission of appeal in the High Court of Karnataka Rules 1959, the same has to be followed in addition to the procedure prescribed in the Code of Civil Procedure. Although the High Court of Karnataka, in exercise of the powers conferred by Section 122 of the CPC has framed the Karnataka Civil Rules of Practice, but similar rules as applicable to lower appellate Courts are not provided. Therefore, in the absence of the Rules, the procedure prescribed in the Code has to be followed by the lower appellate Courts. 22. Rule 9 deals with Registry of memorandum of appeal. Prior to the amendment in the year 1999, the rule read as under: R. 9. Registry of memorandum of appeal.- (1) Where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation and shall register the appeal in a book to be kept for the purpose (2) Register of Appeals. - Such book shall be called `Register of Appeals'. The aforesaid rule is substituted by the CPC Amendment Act of 1999. It reads as under: R. 9. Registry of memorandum of appeal.- (1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose. (2) Such book shall be called the register of appeal.. 23. It reads as under: R. 9. Registry of memorandum of appeal.- (1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose. (2) Such book shall be called the register of appeal.. 23. This provision has been explained by a three Judge Bench of the Supreme Court of India in the case of Salem Advocate Bar Association Vs. Union of India reported in AIR 2003 SC 189 . It is observed that the apprehension that this rule requires the appeal to be filed in the Court from whose decree the appeal is to be filed, is unfounded. It was held that the appeal is to be filed under Order 41 Rule 1 of CPC in the Court in which it is maintainable. All that Order 41 Rule 9 of CPC requires is that a copy of memorandum of appeal which has been filed in the Appellate Court should also be presented before the Court against whose decree the appeal has been filed and endorsement thereof shall be made by the decreeing Court in a book called the Register of Appeals. Perhaps the intention of the Legislature was that the Court against whose decree the appeal has been filed should be made aware of the factum of filing of the appeal. That is all the object of the said amendment. 24. Rule 10 provides for furnishing of security for costs. It reads as under: R. 10. Appellate Court may require appellant to furnish security for costs. - (1) The Appellate Court may, in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both. Where appellant resides out of India. - Provided that the Court shall demand such security in all cases in which the appellant is residing out of India, and is not possessed of any sufficient immovable property within India other than the property if any to which the appeal relates. (2) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal. 25. (2) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal. 25. As is clear from the aforesaid provision the object of Rule 10 is to secure the respondent in an appeal from the risk of having to incur further costs which he might never recover from the appellant. The Appellate Court may call upon the appellant to furnish security even before the respondent is called upon to appear. The said power could be exercised after the appearance of the respondent and on an application made by the respondent. Sub-clause (2) of Sub-Rule 2 explicitly states, where such security is not furnished within such time as the Court orders, the Court shall reject the appeal. Therefore, an appeal could be rejected for non-furnishing of the security as ordered by the Appellate Court even before the respondent is called upon to appear and answer. It is after compliance with these procedural requirements, the appeal is to be taken up for consideration for admission. 26. Order 41 Rule 11 reads as under: R. 11. Power to dismiss appeal without sending notice to Lower Court. - (1) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal. (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. (4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. 27. As the heading of the said provision makes it clear, an appeal filed under Section 96 of the CPC could be dismissed without sending notice to Lower Court. If the Appellate Court finds no merit in the appeal then it shall dismiss the appeal without even issuing notices to the respondents. 28. 27. As the heading of the said provision makes it clear, an appeal filed under Section 96 of the CPC could be dismissed without sending notice to Lower Court. If the Appellate Court finds no merit in the appeal then it shall dismiss the appeal without even issuing notices to the respondents. 28. Sub-rule (1) of Rule 11 before amendment read as under: "(1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader." 29. This Court in the case reported in AIR 1970 MYSORE 138, interpreting Rule 11 of Order 41 at paragraph 7, held as under: "7. Although Rule 11 of Order 41 of the Code of Civil Procedure authorises the appellate Court to dispense with a requisition for the record, such summary disposal even without the assistance of record is permissible only in a case in which the questions arising for adjudication in the appeal are such that a perusal of the evidence produced by the parties is unnecessary to assist such disposal. So it may be possible for an appellate Court to desist from sending for the record if the question involved is a pure question of law, and the view taken by the Court of first instance is so unexceptionable that it would be hardly necessary either to send for the record or to notify the respondent. Similarly a disposal without the record may also be possible where the facts are not in dispute or where the correctness of the conclusions on a question of fact reached by the Court of first instance is not assailed." 30. Sub-Rule (4) of Rule 11 has been inserted in the year 1976 by CPC amendment Act of 1976. Sub-Rule (4) has now made it obligatory for the Appellate Court not being a High Court to deliver judgment recording in brief the grounds for dismissing the appeal under Sub-rule (1). Sub-Rule (4) of Rule 11 has been inserted in the year 1976 by CPC amendment Act of 1976. Sub-Rule (4) has now made it obligatory for the Appellate Court not being a High Court to deliver judgment recording in brief the grounds for dismissing the appeal under Sub-rule (1). It provides that where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief, its grounds for doing so and a decree shall be drawn up in accordance with the judgment. What follows from this provision is after the Appellate Court hears the appellant or his counsel and finds that no ground is made out for admitting the appeal, it can dismiss the appeal at the stage of admission. This power can be exercised not only by the High Court, but even by the First Appellate Court, whether it be Civil Judge (Sr. Dn.) or the District Judge. The only difference is, if the Civil Judge (Sr. Dn.) and the District Judge are exercising their power under Sub-rule (1) of Rule 11 and dismisses an appeal at the stage of admission, they shall deliver a judgment recording in brief its grounds for doing so whereas the High Court can say "No grounds. Dismissed". The reason is that, against the judgment and decree of the First Appellate Court, a Regular Second Appeal lies to the High Court under Section 100 of the Code. When once an appeal is provided against an order, a duty is cast on the Court, which is passing the judgment, to show its application of mind to the facts of the case and the reasons for its judgment so that it could be appreciated by the next Appellate Court. When the High Court dismisses the First Appeal, the statute does not provide for a second appeal. All that the party could do is to invoke the power of the Apex Court under Article 136 of the Constitution of India. However, the Courts in the country have insisted that the High Court also should deliver a judgment recording in brief its grounds for dismissing the appeal without being admitted. 31. The Madhya Pradesh High Court in the case of SMT. MUNIYA BAI Vs. STATE OF MADHYA PRADESH & OTHERS reported in AIR 1987 MADHYA PRADESH 202, interpreting sub-rule (4) of Rule 11 has held as under: "2. 31. The Madhya Pradesh High Court in the case of SMT. MUNIYA BAI Vs. STATE OF MADHYA PRADESH & OTHERS reported in AIR 1987 MADHYA PRADESH 202, interpreting sub-rule (4) of Rule 11 has held as under: "2. When the appeal was admitted, one of the substantial questions of law framed at that time was whether the impugned judgment was not violative of Sub-rule (4) of Rule 11, Order 41, C.P.C. The question has to be answered today in appellant's favour for reasons to follow and I quote the relevant provision: "Where an Appellate Court, not being the High Court, dismisses an appeal under Sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment." 3. It may be mentioned that in 1977, the afore quoted provision was brought on the Statute Book by C.P.C. (Amendment) Act, 1976 with a singular and salutary object. The Legislature considered it necessary to expressly circumscribe the power of the appellate Court, other than a High Court, to dismiss summarily an appeal by requiring such a Court, when doing so, to render a reasoned judgment and also to draw up a decree in accordance with the judgment. In the instant case, the question to be considered is whether the two-fold violation of the provision has rendered void the impugned judgment. It is not disputed that no decree has been drawn up in this case while it has to be considered still whether the "ground" which is given in the judgment for dismissal of the appeal was sufficient compliance of the requirement of the provision. In so far as the question as to whether non-drawal of a decree has vitiated the judgment is concerned, the decision in Jagat Dhish, AIR 1961 SC 832 (though rendered prior to the amendment) is still relevant, according to me. It was held in that case that when decree was not drawn up in any case, it will be the duty of the High Court to direct the Court below to draw up the decree because their Lordships took the view that the requirement of Rule 1 of Order 41, C.P.C. was mandatory and had to be fulfilled. It was held in that case that when decree was not drawn up in any case, it will be the duty of the High Court to direct the Court below to draw up the decree because their Lordships took the view that the requirement of Rule 1 of Order 41, C.P.C. was mandatory and had to be fulfilled. A certified copy of the decree has to accompany a memorandum of appeal according to Rule 1 and as such, the appeal would not be in form and competent without there being before the Court certified copy of the decree appealed from when the appeal is heard. Thus, non-drawal of a decree in the instant case by the Court below would not vitiate the judgment, but it is not necessary in this case to make any direction to the Court below fordoing so for the simple reason that the judgment itself is not in accordance with the requirement of Sub-rule (4) itself, and has to be set aside. 4. I address myself, therefore, now to the only surviving contention. In construing the expression "grounds", I would still read the necessity of giving due importance to the requirement in the selfsame provision of drawl of a "decree" in accordance with the "judgment". A decree has to be a "formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit" according to Section2(2), C.P.C. When the rights of parties are sought to be conclusively determined by any judgment rendered in accordance with Sub-rule (4) of Rule 11 aforesaid, I have no doubt that the "grounds", though "recorded in brief, must be "grounds" dealing with, and disposing of, the contentions agitated in the plaint or W.S. and in the memorandum of appeal. Indeed, contention orally pressed by counsel and disposal thereof must be manifested on the face of the judgment. Because reasonable opportunity must be allowed to the litigant to press his appeal, summary dismissal of appeal under Sub-rule (4) has to be eschewed when rights of constitutional complexion are agitated inasmuch as summary "judgment", "recording in brief its grounds" cannot be rendered judicially in such matters. The legislative object of the new provision, according to me, was to do at once two things to effectuate the constitutional imperative of Article39A. The legislative object of the new provision, according to me, was to do at once two things to effectuate the constitutional imperative of Article39A. One, to make the process of justicing rational, reasonable and accountable, two, to short-circuit litigative process by mandating the appellate Court to render reasoned judgment so that not only the unsuccessful appellant is enabled thereby to make up his mind whether to impugn the judgment or be satisfied therewith but to enable also the second appellate Court to make up its mind on the perusal of the reasons given in the impugned judgment as to whether that judgment warrants interference." 32. A Division Bench of the Gujarat High Court in the case of HARIJAN VANABHAI DEVABHAI AND OTHERS Vs. KHODA GRAM PANCHAYATH reported in AIR 1994 GUJARAT 1 has held as under: "2........Though there is power under Order 41, Rule 11(1), CPC to summarily dismiss the First Appeal without the issuance of notice to the respondent, yet, the Court must be chary in exercising the power and if it chooses to do so must express its own reason as the appellate forum for summarily rejecting the First Appeal. The reason is obvious. An order dismissing an appeal under Order 41, Rule 11(1), C.P.C. is open to appeal as a decree under the C.P.C. and as a judgment under the Letters Patent, as has happened in the present case. The further appellate forum should be enabled to understand the independent reasons which weighed with the lower appellate forum in summarily dismissing the appeal." 33. The aforesaid sub-rule (4) of Rule 11 fell for consideration before the Division Bench of the Madhya Pradesh High Court in the case of DHANROOP AND ANOTHER Vs. PURUSHOTTAMDAS PUROHIT AND OTHERS reported in AIR 2000 MADHYA PRADESH 118, wherein it has been held as under: "4....Sub-rule (4) of Rule 11 provided that where such appeal was dismissed by an Appellate Court, "other than the High Court" it was to deliver a Judgment recording in brief Its grounds for doing so. 5. It appears that expression "not being the High Court" was being read and interpreted to relieve the High Court of its otherwise inherent obligation to support its order/s by reasons. But that was not so and any such view would not only impinge upon all cannons of justice but would also render such orders wholly arbitrary. 6. 5. It appears that expression "not being the High Court" was being read and interpreted to relieve the High Court of its otherwise inherent obligation to support its order/s by reasons. But that was not so and any such view would not only impinge upon all cannons of justice but would also render such orders wholly arbitrary. 6. After all, the right to file the appeal under Order 41 is a valuable right and it can't be allowed to be dealt with casually and mechanically. An appellant was entitled to know how his/her claim was dealt with and why it was rejected and why contentions raised were found unacceptable. This was all the more necessitated in the first appeal wherein findings of fact assumed finality and were required to be arrived at on careful appraisal of evidence on record, determination of points of dispute and the law governing the subject. If such appeal was allowed to be rejected summarily without assigning reasons briefly it would seal the date of appellant and confront him with concurrent findings of fact in the absence of any effort or application of mind by the First Appellate Court to reappraise the evidence on record to ascertain whether trial Court determination was sustainable. Above all it would deprive him of his valuable right to know the basis for rejection of the appeal. 7. It may as well be construed that Legislature had excluded the High Court from requirement of briefly stating the grounds for preliminary rejection of an appeal by using the expression "not being the High Court" in Rule 11(4), but it cannot be overlooked that such dismissal order passed was consequentially as much a judgment on which a decree was to be drawn and which finally decided the right and liabilities of the parties. 8. It is well settled by now that the reasoning constituted the heart and soul of a Court judgment or for that matter any judicial order. A Court had an inherent obligation to support its action by reasons, otherwise all its judgments/orders would tantamount to a dictate and a fiat. It was immaterial whether a Judgment/order was by a higher Court or a lower one, because all such Courts were to function judicially and in conformity with the norms of Justice. A Court had an inherent obligation to support its action by reasons, otherwise all its judgments/orders would tantamount to a dictate and a fiat. It was immaterial whether a Judgment/order was by a higher Court or a lower one, because all such Courts were to function judicially and in conformity with the norms of Justice. Therefore, nothing, much less a construed legislative exemption could relieve the High Court of its fundamental obligation of supporting its order or judgment by reasons. There maybe cases, frivolous or petty, where one line dismissal order could be justified. But that would not hold true where rights and liabilities of the parties were to be decided for good. 9. Viewed thus, the expression "not being the High Court" occurring in Rule 11(4) was required to be read down and not interpreted rigidly to empower the High Court to pass one word summary dismissal orders, moreso in civil first appeals which required a re-appreciation and reappraisal of the evidence on record and re-determination of the points in dispute. It could not be so interpreted to relieve the High Court of its basic obligation to pass order/judgment in tune with the elementary cannons of justice. Moreover the Rule was only a procedural one and could not be overstretched to pose a hurdle in the stream of justice and to facilitate telegraphic summary dismissal of appeals by the High Court. Even if it was to be construed technically, still it was to be ignored by the High Court to eliminate possibility of any arbitrariness and to conform to the basic tenets of Justice. 10. We accordingly hold that Rule 11(4) of Order 41, CPC could not be construed to stop or prevent the High Court from supporting its summary dismissal order in appeals by reasons. The High Court was otherwise expected to pass reasoned orders to ensure that justice was not only done but appeared to be done and this Rule did not do away with its basic obligation of doing justice in deciding the rights and liabilities of the contesting parties." 34. In fact, the Apex Court in the case of KIRANMAL ZUMERLAL BORANA MARWADI Vs. In fact, the Apex Court in the case of KIRANMAL ZUMERLAL BORANA MARWADI Vs. DNYANOBA BAJIRAO KHOT AND OTHERS reported in (1983) 4 SCC 223 , took exception to the dismissal of the Regular First Appeal under Order 41 Rule11 CPC and set aside the order of the High Court and remanded the matter to the High Court. 35. In this connection, reference may be made to the report of Justice Malimath Committee, Chapter III p. 30, which reads as under: "Indeed, the provisions of Order XLI Rules 11, 11A and 12 of the Code of Civil Procedure read together make it obligatory for the Appellate Court to fix a day for the preliminary hearing of appeal as expeditiously as possible and to make endeavor to conclude such hearing within sixty days from the date of which the memorandum of appeal is filed and, unless the appeal is summarily dismissed at preliminary hearing, to fix a day for final hearing. In other words, the question of fixing a day for the final hearing of appeal arises only if the appeal is not summarily dismissed at the preliminary hearing which has to be fixed as expeditiously as possible after the memorandum of appeal is filed. These provisions should be strictly followed. However, care should be taken that an appeal which raises triable issue is not dismissed in limine. We would also like to emphasis that when an appeal is dismissed in limine, a brief order giving reasons for dismissal at the preliminary stage should invariably be recorded. A similar recommendation has been made by the Law Commission of India in its 79th report. 36. Therefore notwithstanding the provision of Sub-rule (4) of Rule 11 of Order 41, Code of Civil Procedure, the High Court is expected to pass a reasoned order even in dismissing the appeal on the first day of hearing at the admission stage in absence of the respondents, to ensure that justice is not only done but appears to have been done. Provisions of Order 41 Rule 11(4) does not do away with its basic obligation of doing justice in deciding rights and liabilities of the contesting parties. Provisions of Order 41 Rule 11(4) does not do away with its basic obligation of doing justice in deciding rights and liabilities of the contesting parties. When an appeal is dismissed in limine, a brief order giving reasons for dismissal at the preliminary stage should invariably be recorded when the rights of parties are sought to be conclusively determined by any judgment rendered in accordance with sub-rule (4) of Rule 11, 'grounds', though 'recorded in brief' must be 'grounds' dealing with and disposing of the contentions agitated in the plaint or written statement, and in the memorandum of appeal. The contention orally pressed by Counsel and disposal thereof must be manifested in the face of the judgment. The legislative object of sub-rule (4) is to make the process of justicing rational, reasonable and accountable and also to short circuit litigative process by a reasoned order, so that the unsuccessful appellant should be in a position to know the merits of his/her case and make up his/her mind either to accept the judgment or challenge the same in a higher forum. 37. By Amendment Act of 1999 the words "sending for the record if it thinks fit so to do" has been omitted. Similarly, the words "without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or its pleader" is also deleted. Therefore, the intention of the Legislature is manifest. It is in tune with the policy of speedy disposal of cases. Sending for the record, sending notice to the Court from whose decree appeal is preferred and serving notice on the respondent or his pleader would involve considerable time. In cases where there is absolutely no merit in the appeal and without records, without hearing the respondent and his pleader, the appeal could be dismissed, thus the aforesaid obligation on the part of the Court is done away with. 38. In fact the aforesaid provision came up for consideration before a Division Bench of this Court in the case of M.C. Mohammed Vs. Smt. Gowrammma & others reported in AIR 2007 KAR 46 . After noticing the statutory provisions, at para 24 it was held as under: "24. 38. In fact the aforesaid provision came up for consideration before a Division Bench of this Court in the case of M.C. Mohammed Vs. Smt. Gowrammma & others reported in AIR 2007 KAR 46 . After noticing the statutory provisions, at para 24 it was held as under: "24. In the light of the provisions of Order XLI, Rule 11, Section 128of CPC and the provisions of the Rules made by this Court under Section 122 of CPC, we do not find there is any justification in the contention of the learned Counsel for the appellant that the appeal cannot be disposed of at the admission stage. We hold that the Regular First Appeals are required to be posted for admission and also are required to be heard for admission and it is only after the Court satisfies itself of the prima facie case for admission, either the Court may admit or may issue notice, if no case is made out for admission or if the matter could be disposed of after hearing both the contesting sides at the stage of admission itself, the Court can dispose of the appeal at the admission stage." 39. Thus Rule 11 of Order 41 expressly provides that the Appellate Court has the power to dismiss the appeal without sending notice to the lower Court. Sub-rule (1) of Rule 11provides that when the appeal papers are all in order and are posted before the Court, it shall fix a day for hearing the appellant or his pleader. It is obvious that it is to find out whether the appeal preferred by him requires to be admitted or not. On the appeal being posted before the Court, if the party and the counsel are absent, the Court has been vested with the discretion to dismiss the appeal. But it is not mandatory. Sub-rule (2) provides that if the day fixed or any other day to which the hearing may be adjourned, means when on the first date of hearing the appellant's counsel is absent, the Court can adjourn the hearing of the appeal. But even on the adjourned day also, the appellant and his counsel are absent when the appeal is called on for hearing, then the Court in it discretion may make an order that the appeal be dismissed. But even on the adjourned day also, the appellant and his counsel are absent when the appeal is called on for hearing, then the Court in it discretion may make an order that the appeal be dismissed. Therefore, it is clear that merely because an appeal is filed under Section 96 and the appeal is a substantive right, which is recognized under the statute, the admission of the appeal is not automatic. To get the appeal admitted, the appellant or his counsel should appear before the Court and point out the defect in the judgment and decree, which calls for interference by the Appellate Court and convince the Court that a triable issue exists which merit admission. What the Appellate Court has to do when it is not convinced that a case for admission is made out, is stipulated under Rule 11 sub-rule (4) i.e., dismiss the appeal. 40. In fact the Parliament has taken care to introduce Rule 11A, prescribing the period within which this admission process is to be completed. It reads as under: Rule 11A. Time within which hearing under rule 11 should be concluded. - Every appeal shall be heard under rule 11 as expeditiously as possible and endeavor shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed. 41. It provides that every appeal shall be heard under Rule 11 as expeditiously as possible and endeavor shall be made to conclude such hearing within 60 days from the date on which the memorandum of appeal is filed. The intention of the Legislature is very clear. An appeal filed under Section 96 of the Code should be either admitted or should be dismissed within 60 days from the date of appeal being presented before the Shirastedar in the Court Office. But in practice, in the lower courts some times, if there is no urgency, the appeal papers will not be placed before the Judge even after 60 days. In the High Court when the parties do not comply with office objections even for six months, the appeal will not come before the Court for admission. Nobody is applying mind to these breaches committed contrary to the mandate of law. When the matter is not even listed before the Court, how could the Court be blamed for the delay in disposal of these appeals. 42. Nobody is applying mind to these breaches committed contrary to the mandate of law. When the matter is not even listed before the Court, how could the Court be blamed for the delay in disposal of these appeals. 42. Therefore, the statute specifically provides for a stage of admission of appeal both at the High Court level and also at the Lower Appellate Court level. This provision has not been noticed nor put into practice. On the contrary, it is practiced in breach. This is a provision, which is enacted by the Parliament for early judicial intervention by the Judges in Regular First Appeal. It is because of want of early judicial system by the Courts, there is inordinate delay in disposal of these appeals, which normally take anywhere between five to ten years for adjudication. What the Appellate Court has to bear in mind at this stage is, in the Trial Court, the plaintiff had an opportunity to put-forth his pleading in detail. The defendant has met the case of the plaintiff by filing a written statement. Issues are framed. Witnesses from both sides are examined, cross-examined in length; many times they are recalled and re-examined in length, Commissions are ordered, expert evidence is obtained, Commissioner's report is obtained. Then a lengthy argument is adduced citing the statutory provisions as also the judgment of this Court and the Apex Court. Thereafter, the learned Judge, after a hard fought trial, which may sometimes spread over for a period of ten years pronounce the judgment on all issues. Precious judicial time of one member of the Judiciary has been spent in this adjudication process. The object of providing a statutory appeal is to examine whether Judges have erred in deciding the cases. There should be a mechanism for correction of those mistakes. Therefore, statutory right of appeal is provided. It does not mean that in every case, the appeal is to be admitted and kept in cold storage for five years and then decided. The object of providing a statutory appeal is to examine whether Judges have erred in deciding the cases. There should be a mechanism for correction of those mistakes. Therefore, statutory right of appeal is provided. It does not mean that in every case, the appeal is to be admitted and kept in cold storage for five years and then decided. What the statute mandates is, at the stage of admission of the appeal if, the learned Judges were to apply their mind and find out from the members of the bar as to what is the error in the judgment, and when the error is pointed out, with their rich experience, they can consider the error as pointed out in the judgment and find out whether there is any substance. If there is no substance in the argument, there is no question of admitting the appeal for hearing. Because of such automatic admission today, the litigants are encouraged to file appeal even though there is no merit. The reason is obvious. The present judicial process comes in handy to enjoy property and money belonging to others. In a suit for recovery of money after a hard fought battle, a decree is passed, the money belonging to the plaintiff is in the hands of the defendant. If he were to be a business man, with that money, he will multiply the money and at the end of the day, after five years or ten years, he does not mind repaying that money. In a suit for recovery of possession or ejectment, the defendant is in possession of the property, in respect of which he has suffered a decree. Because he got into possession at an earlier point of time at a nominal rent, an appeal enables him to continue and enjoy the property, thus depriving the decree holder - the plaintiff from enjoying the possession of the property and some times, from enjoying the property during his life time. In the case of partition suits, where relationships are admitted and nature of property is also admitted, and if appeals are filed against the preliminary decree, the defendants would be in enjoyment of the property belonging to the family. Plaintiff normally is a person, who is excluded from enjoyment of the property. Some times, the plaintiff may not see the fruits of the decree during his lifetime. Plaintiff normally is a person, who is excluded from enjoyment of the property. Some times, the plaintiff may not see the fruits of the decree during his lifetime. Similarly summary disposal even without the assistance of the record is permissible only in a case in which the questions arising for adjudication in the appeal are as such as that perusal of the evidence produced by the parties is unnecessary. Similarly if the question involved is a pure question of law, the view taken by the court of first instance is so unexceptionable and that view is based on earlier judgment of the Court or the Apex Court, and that when the appellate Court sees no reason to differ from the aforesaid law laid down, order of dismissal is the only order that can be passed. Similarly a disposal may also be possible where the facts are not in dispute or where the correctness of the findings on a question of fact recorded by the Court of first instance is not assailed in the appeal. Unsuccessful party in the suit being conscious of the fact that there is no chance of succeeding in the appeal too, still prefers an appeal only to take advantage ensuring to him because of working of the judicial system. The members of the bar should also understand their responsibility and if they want speedy disposal of cases, they should also play their role effectively in order to give effect to the provisions enacted by the Parliament. 43. Though there is power under Order 41, Rule 11(1) of the Code of Civil Procedure 1908 to summarily dismiss the first appeal without issuance of notice to the respondent, yet, the Court must be chary in exercising that power. First appeal is a valuable right and the parties have a right to be heard, both on questions of law and fact. It has to be decided by giving reasons in support of the findings. In the event of the appellant and his counsel making out a case for admission what the Court should do, is provided in Rule 12. It reads as under: Rule 12. - Day for hearing appeal.-(1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal. (2) Such day shall be fixed with reference to the current business of the court. 44. It reads as under: Rule 12. - Day for hearing appeal.-(1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day for hearing the appeal. (2) Such day shall be fixed with reference to the current business of the court. 44. Unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a date for hearing the appeal. In Rule 11, the phrase used is "hearing the appellant". In Rule 12, the phrase used is "hearing the appeal". The stage of the hearing of the appeal would arise only if, after hearing the appellant, the Court is convinced that the matter requires consideration and if it does not dismiss the appeal under Rule 11(1) of the Code. Thereafter, the Appellate Court shall give notice to the parties. The next stage in the hearing of the appeal is what is provided under Order 41 Rule 16. It reads as under: Rule 16. Right to begin. - (1) On the day fixed, or on any other day to which the hearing may be adjourned, [A] the appellant shall be heard in support of the appeal. (2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply. 45. The words "On the day fixed or any other day to which hearing may be adjourned, the appellant shall be heard in support of the appeal" What does it mean? Already, the appellant is heard at the stage of admission and now again the law says, it is the appellant, who shall be heard in the appeal. After fixing the date of hearing and issue of notice to the respondents, it should call for records. On the day, the appeal is again set down for hearing of the appeal, the records are before the Court. Now, when a counsel makes a submission pointing out the errors in the judgment, the Court can verify from the records whether there is any substance in the submission. The evidence both oral and documentary are available. All that the Court has to do is to apply its mind, request the appellant to point out from the evidence on record as to how he supports his contention. The evidence both oral and documentary are available. All that the Court has to do is to apply its mind, request the appellant to point out from the evidence on record as to how he supports his contention. Therefore, the judge, with rich experience, should be able to make out whether there is any substance in the grounds urged. When, the person to be heard even at the stage is the appellant, he should substantiate the grounds of appeal. If the appellant or his counsel fails to substantiate the ground, what should happen is as contained in Sub-rule (2) of Rule 16. If the appellant or his counsel are not able to substantiate the ground, which is urged with reference to the records, the law mandates that the appeal shall be dismissed at once. But if the appellant's counsel makes out a ground, then the law mandates that, the respondent should be heard. After hearing the respondent, the appellant shall be entitled to a reply. This is the scheme, which is provided under Order 41 read with Section 96 of the Code. Though the appellant has been given a statutory right of appeal, the very statute prescribes how the Court has to hear the said appeal. The Court cannot go beyond these provisions. The Court cannot ignore these provisions. The Court cannot refuse to follow the procedure prescribed under the law. Therefore, from the aforesaid scheme of Order 41 Rule 11 up to Rule 16 of the Code, it is clear that in every appeal under Section 96, whether it be in the High Court or in the Lower Appellate Court, there is a stage for admission. Admission of the appeal is not automatic. Appellant has to make out a case for appeal to be admitted. If he fails to make out a case for admission, appeal shall be dismissed without there being need to notify the respondent. Even if a case is made out for admission, the Appellate Court has to call for the records, fix the date of hearing, call upon the appellant to substantiate the ground which he has made out at the time of admission. If he is not able to make out that ground with reference to the records, the Appellate Court shall dismiss the case. If he is not able to make out that ground with reference to the records, the Appellate Court shall dismiss the case. Only if he makes out a ground, then they have to hear the respondent and then the appellant has to be heard in reply. Unfortunately, we do not see any of the Courts following this procedure, and non observance of which is the root-cause for delay in disposal of these Regular appeals. Because it is not dealt with in this manner, the litigants are taking undue advantage of the procedural lapse by the Judges in dealing with the appeals. 46. At this juncture, we may mention Rule 5 of Order 41 which provides for stay by the Appellate Court. It provides that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal being stayed for the decree. It is clear that mere filing of an appeal would not operate as the stay of the judgment and decree. Therefore, there is no prohibition for the Court, which passed the decree to execute the decree in the absence of a stay order. Sub-Rule (3) provides that though the Appellate Court has the power to stay the judgment and decree of the Trial Court, no order for stay of execution shall be made under Sub-rule (1) or Sub-rule (2) unless the Court making it, is satisfied that the substantial loss may result to the party applying for stay of execution unless the order is made; that the application has been made without unreasonable delay; and that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. Therefore, as admission of an appeal is not automatic, grant of an order of stay is also not automatic. An obligation is cast on the Court by the statute to see that the conditions stipulated in Sub-rule (3) are complied with before granting an order of stay. In other words compliance of those terms is a condition precedent for operation of the stay order. Insisting on all those conditions is a sine qua non for granting an order of stay. In other words compliance of those terms is a condition precedent for operation of the stay order. Insisting on all those conditions is a sine qua non for granting an order of stay. This provision may also be read along with Sub-rule (3) of Rule 1 of Order 41 of the Code, which reads as under: Rule 1(3) 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. 47. It provides that where the appeal is against a decree for payment of money, the appellant shall within such time as the Appellate Court may allow to deposit the amount disputed in the appeal or furnish security in respect thereof as the Court may think fit. This is an amendment brought into the Code in the year 1976. Probably similar provision in the taxing statute of the land is an inspiration for the introduction of these provisions. A reading of the provision makes it clear that there cannot be a stay for an admitted claim. A stay has to be confined only to the disputed claim and if it is a money decree that disputed amount is to be deposited. The reason behind all these provisions is to discourage the defendant from preferring the appeal when there is no merit in the appeal. Despite the fact there is no merit and yet he prefers an appeal, he has to satisfy those conditions and thereby, he would have to pay double the amount of the decree. The Court insists upon the compliance of these provisions in letter and spirit, it is sure that it will eliminate and exclude substantial number of frivolous litigations, that are coming in the way of speedy disposal of deserving cases. Therefore, Appellate Judge has to bear in mind these statutory provisions enacted by the Parliament which enables not only speedy disposal of appeals but also exclusion of frivolous appeals being filed in the Court. 48. Therefore, Appellate Judge has to bear in mind these statutory provisions enacted by the Parliament which enables not only speedy disposal of appeals but also exclusion of frivolous appeals being filed in the Court. 48. In the light of the aforesaid discussion, we do not find any substance in the contention that under Section 96 read with Order 41 of the Code, appeal being a substantive right, a re-look of the judgment of the Trial Court is required in all cases and that appeal cannot be dismissed at the stage of admission. POINT Nos. 2 AND 3 49. Now in this background we have to look into the facts of this case and find out, whether a good ground is made out for admission of this appeal. From the pleadings and the evidence on record, it is not in dispute that the 1st defendant is the owner of the schedule property. He has entered into an agreement to sell the property with the plaintiff. The total consideration agreed upon is Rs. 53,75,000/-. Rupees One lakh is paid on the date of the agreement. Three months is the time prescribed for completion of the sale transaction. The term of the contract stipulates that the defendant No. 1 has to execute the sale deed whenever the plaintiff called upon him to execute the sale deed, within three months. At the time of execution of the sale deed, he is expected to handover all the relevant documents. He is also expected to get the property measured and get the boundaries fixed. It is not in dispute that the land in question is not a land, which is not surveyed. It is a land which is surveyed with a fixed boundary and a specific survey number. The 1st defendant is in peaceful possession and enjoyment of the said property. The material on record shows that the 1st defendant was aged 78 years on the date of the agreement. The recitals of the agreement also shows that he needed money immediately to meet his family commitments and also for the development of his children and therefore was anxious to sell the property and he was on the lookout for a purchaser. The plaintiff had offered the highest price and therefore, he had agreed to sell the property to him. The plaintiff was preferred because, he quoted the highest price. The plaintiff had offered the highest price and therefore, he had agreed to sell the property to him. The plaintiff was preferred because, he quoted the highest price. Now the evidence on record shows that neither within three months nor after three months, plaintiff approached the 1st defendant calling upon him to produce the documents, measure the property and put him in possession by executing the sale deed. On the contrary, it is the defendant No. 1, who got issued a legal notice dated 03.11.2008, where he has categorically stated that he is ready and willing to execute the sale deed as per the terms of the agreement to sell dated 21.07.2008. In spite of repeated requests, the plaintiff did not show any interest and therefore, he called upon the plaintiff to pay Rs. 52,75,000/- within 7 days of receipt of the notice failing which, he would forfeit the advance amount paid by him and cancel the agreement of sale. On receipt of the said legal notice, the plaintiff sent a reply as per Ex. P6 dated 10.11.2008, stating that it is false to allege that in the sale agreement, time has been fixed for three months for execution of the sale deed from the date of the agreement. He wanted the 1st defendant to furnish all the relevant documents, get the schedule property measured from the competent authorities and to fix up the boundaries in terms of the sale agreement within a fortnight form the date of receipt of this reply. What the contract provided was that, the 1st defendant should furnish all the relevant documents. He should get the boundaries fixed, identified and get the property measured. Getting the property measured by competent authorities is not a term of the contract. Fixing up the boundaries in terms of the sale agreement is also not a term of the agreement. Therefore, it shows unwillingness on the part of the plaintiff to perform his part of the contract. On receipt of the said reply notice, the 1st defendant sent one more notice as per Ex. P1 dated 01.12.2008. Along with the said reply, he sent the photo copies of all the relevant documents, which are required for registration and stated that he has inquired with the Sub-Registrar who had informed him that the documents, which are sent to the plaintiff along with notice are sufficient for registration of the document. P1 dated 01.12.2008. Along with the said reply, he sent the photo copies of all the relevant documents, which are required for registration and stated that he has inquired with the Sub-Registrar who had informed him that the documents, which are sent to the plaintiff along with notice are sufficient for registration of the document. Again, he called upon the plaintiff to get the sale deed registered within 7 days from the date of the receipt of the notice, failing which, he would proceed against the plaintiff as stated earlier. Along with the said letter, he furnished a copy of the Record of Rights of the schedule properties and also Survey sketch as per Ex. D8, the title deed as per Ex. D9, under which he had purchased the property, Ex. D10, the Tax paid receipts and encumbrance certificate. On receipt of the said reply, the plaintiff sent Ex. P8 dated 10.12.2008. It was replied again by reiterating that the property has to be measured by the competent authorities and fix the boundaries and the documents, which are sent are not at all relevant for the agreement dated 21.07.2008. Thus, he did not show his eagerness to perform his part of the contract, nor did he offer the balance sale consideration. Now the documents produced by him during the course of trial clearly shows that either on the date of the agreement of sale or on expiry of three months from the date of agreement of sale or on the date of his reply notice sent or even subsequently, he was not ready with the balance sale consideration. His unwillingness to perform his part of the contract is clear from the stand he has taken in the reply notice. It is this evidence, which he weighed with the Court in coming to the conclusion that was not ready and willing to perform his part of the contract. The law on the point is well settled. Interpreting Section 16 of the Specific Relief Act, 1963, this Court aft reviewing the entire case law on the point in the case Smt. Padmini Raghavan Vs. Mr. H.A. Sonnappa, sin dead by his L.Rs. and others reported in ILR 2014 KA 233 held as under: 51. The law on the point is well settled. Interpreting Section 16 of the Specific Relief Act, 1963, this Court aft reviewing the entire case law on the point in the case Smt. Padmini Raghavan Vs. Mr. H.A. Sonnappa, sin dead by his L.Rs. and others reported in ILR 2014 KA 233 held as under: 51. Thus, Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemish less throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. 52. Thus in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. It is indisputable that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of the contract. If the plaintiff fails to either aver or prove the same, he must fail. It is indisputable that in a suit for specific performance of contract, the plaintiff must establish his readiness and willingness to perform his part of the contract. The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till the date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract. 53. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. In so far as willingness is concerned, it reflects the mental attitude of the plaintiff to part with or pay the balance sale consideration agreed to be paid. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. In so far as willingness is concerned, it reflects the mental attitude of the plaintiff to part with or pay the balance sale consideration agreed to be paid. If there are any reservations without any justification, or it is made conditional on the happening of any event which is not agreed upon, it shows his unwillingness to perform his part of the contract. The obligation imposed by Section16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with. 50. Therefore, it is a question of jurisdiction of the Court to pass a decree for specific performance. That jurisdiction could be exercised only when the plaintiff, who has come to the Court avers in the plaint that he is ready and willing to perform his part of the contract and then prove the said averment, by acceptable evidence. It is only then, the Court gets the jurisdiction to pass a decree for specific performance. In the instant case, though there is a specific averment regarding readiness and willingness to perform the part of the contract, there is no evidence to prove the said readiness and willingness. It is only then, the Court gets the jurisdiction to pass a decree for specific performance. In the instant case, though there is a specific averment regarding readiness and willingness to perform the part of the contract, there is no evidence to prove the said readiness and willingness. Therefore, the contention that time was not the essence of the contract, the contract provides for mutual obligations and only when the 1st defendant has performed his obligations, the obligation of the plaintiff to perform his part of the contract would arise and the clause in the agreement itself is to be treated as a notice on the part of the plaintiff calling upon the defendant to perform his part of the contract, has no merit, as it runs counter to the evidence on record. It was also contended that when once a party to the contract repudiates the agreement in view of Section 64 of the Contract Act, the other party therein, need not perform any promise therein contained in which he is the promisor. All that the provision says is that if a contract is voidable and one of the parties avoids the contract and rescind the contract, the party rescinding the contract, if he has received any benefit there under from other party to such contract, he shall restore that benefit. The said provision does not enable the other party to contend that because of the rescission, he is under no obligation to perform his part of the contract. He need not perform his part of the contract and he cannot enforce the contract. Therefore, he cannot maintain a suit for specific performance and if he has accepted the rescission of the contract, all that he is entitled to is, the benefit which has accrued, if he had been a party to the contract. That is what the Trial Court after holding that the contract is validly terminated, did not allow the 1st defendant who had rescinded the contract to retain the benefit, which he had received under the contract and directed refund of the amount with interest. Hence, that provision would not ensure to the benefit of the plaintiff. Therefore, the judgment of the Trial Court does not call for any interference. 51. Yet another aspect which weighed with the Court is that the plaintiff was aged 78 years at the time of filing of the appeal. Hence, that provision would not ensure to the benefit of the plaintiff. Therefore, the judgment of the Trial Court does not call for any interference. 51. Yet another aspect which weighed with the Court is that the plaintiff was aged 78 years at the time of filing of the appeal. He was very badly in need of money. He had kept this property for sale. Because the plaintiff offered highest price, it was given to him. The time stipulated was only three months. When he did not perform his part of the contract within three months, the defendant issued notice giving one more opportunity to him to perform the contract within 7 days. When the said legal notice was replied, again one more opportunity was given to the plaintiff to perform his part of the contract again giving him 7 days time. Even then, the plaintiff did not come forward to perform his part of the contract. Therefore, the old man who wanted to discharge his obligations wanted to sell this property and because of this contract, he was prevented from selling the property till the agreement was rescinded. Therefore, as the plaintiff did not perform his part of the contract within the three months period stipulated under the agreement, and also did not perform the contract, after two legal notices, the termination of the contract is valid, as rightly held by the Court below. Now the evidence on record shows that the first defendant was constrained to sell the property to the 2nd defendant at 50% of the sale consideration, which he had agreed with the plaintiff. Seen from any angle, the judgment of the Trial Court cannot be found fault with. It is in accordance with law. It is in conformity with the equity in the case and the discretion is properly exercised as provided under Section 20 of the Act. 52. It is submitted that the 1st defendant has deposited the entire amount with interest in the Trial Court. The plaintiff is entitled to receive the said amount forthwith. Therefore, no case for admission is made out. Hence, appeal is dismissed. 53. Registry is directed to show the name of Sri. A. Ravishankar as counsel appearing for the 2nd respondent. Appeal Dismissed