Legal Service India.

com

Law Articles
SEARCH

Section 96- Appeal From Original Decrees- A

Comprehensive Study
This article basically focuses on appeal from original decrees made under Section
96 of the Code of Civil Procedure. The First part of the Project Report deals with
introduction as to what is meant by appeal and especially appeal from original
decrees. The second Part of the Project Report deals with the nature and scope of
the Section. The third part of the Project Repot deals with the leading case laws on
right to appeal and Doctrine of Merger and lastly, the conclusion of the article.

The expression appeal has not been defined in the Code of Civil Procedure 1908. It
is an application or petition to appeal higher Court for are consideration of the
decision of appeal lower court.1 It is appeal proceeding for review to be carried out
by appeal higher authority of appeal decision given by appeal lower one.2 An
appeal is appeal creature of statute and right to appeal is neither an inherent nor
natural right.

Appeal person aggrieved by appeal decree is not entitled as or right to appeal from
decree. The right to appeal must be given by statute. Section 9 confers on appeal
litigant, independently of any statute, appeal right to institute appeal suit of civil
nature in appeal court of law. So he has appeal right to apply for execution of
appeal decree passed in his favour, but he has no right to appeal from appeal
decree or order made against him, unless the right is clearly conferred by statute.
Section 96 of the Code gives appeal right to litigant to appeal from an original Top
decree. Section 100 gives him appeal right to appeal from an appellate decree in
certain cases. Section 109 gives him right to appeal to the Supreme Court in certain
cases. Section 104 gives him right to appeal from orders as distinguished from
decrees.

Section 96 of Code of Civil Procedure

Appeal from Original decrees 3

Appeal is provided under Section 96 of the CPC, which says that except as provided
in CPC or any other law for timbering in force, an appeal shall lie from any decree
passed by court exercising Original Jurisdiction to appeal Court authorized to hear
the appeal from the decision of the Court i.e.
Section 96 makes it clear that no appeal lies from appeal decree passed by the
Court with the consent of the parties. However, an appeal may lie fro original
decrees which is passed exparte i.e. without hearing of the parties. No appeal lies
against the decree passed by small cause court, if the value of the subject-matter
does not exceed Rs. 10,0004 except on appeal question of law. Ordinarily, only
appeal party to the suit adversely affected by appeal decree or any of his
representatives in interest may file an appeal. However, appeal person who is not
appeal party to the decree or order may prefer an appeal with leave of the court, if
he is bound or otherwise prejudicially affected by such decree or odder, as in such
an eventuality he may be said to be an “aggrieved person.”5

Right To Appeal: A Statutory And Substantive Right

Right to appeal is statutory and substantive right. It is not merely appeal procedural
right. Statutory right means must be conferred by statute unless it provides there
won't be any right to appeal. While right to institute a suit is not conferred by law.
The right is inherent. But right to appeal has to be conferred by appeal statute.
Where statute provides for right to appeal, it may constitute appeal machinery
where shall the appeal lie. While the same isn't true for right to sue. A civil suit has
to be filed subject to condition of jurisdiction. An appeal is appeal substantive right.
Right to appeal can't be taken retros0pectively because general rule of specific
interpretation. Substantive law operates prospectively unless an express statute
provides so.

When does right to appeal to appeal accrues to any person?

As soon as judgment is pronounced against party, right to appeal arises. Right to

appeal doesn't arise when adverse decision is given, but on the day suit is
instituted i.e. proceedings commenced, right to appeal get conferred. Thus, it can
be said the Right to appeal is appeal substantive right vested in parties from the
date suit instituted. The right to appeal can be waived by a party under a legal and
valid agreement, and if a party has accepted the benefits under the decree, he is
stopped from challenging its legality. The right to appeal also stands destroyed if
the court to which appeal lies is abolished altogether without any forum being
substituted in its place.

The Court hearing the appeal, has the power to implead a person as respondent
who has not been so impleaded where it appears to the court that he may be a
person and interested in the result of the appeal. 6
Top
Appeal from nal decree when no appeal from preliminary decrees
In cases where preliminary and final decree are required to be passed, and if a
party aggrieved by preliminary decree does not prefer an appeal, he cannot be
permitted to raise disputes about correctness of such decree in any appeal against
final decree.

An appeal is a constitution of proceedings. The appellate court can re-examine

questions of fact and law and May even re-appreciate evidence. The powers of the
first appellate court are co-extensive with those of the civil court of original
jurisdiction. However, there may be certain self-imposed restraints in the exercise of
such powers. However they are discretionary and Do not fetter jurisdiction of the
courts. Unlike revision or review where limited grounds of interference are available,
the appellate proceedings offer a much wider scope in deciding about correctness
of the judgments of the courts below. First appeal may be filed on a question of fact
or on a question of law or on a mixed question of fact and law may arise in a case.7
In determining the appellate forum, the value of the subject matter of the suit is
material and not the claim in appeal.8

The judgment of the appellate court should state the points for determination, the
decision thereon, the reasons fro the decision, and the relief to which the appellant
is entitled. The appellate court should state its own reasons; thus it is not enough to
say in the judgment, “I concur with the decision of the Munsiff has given on each
point.' If this is done, the judgment will be set aside by the High court in second
appeal. After the judgment is pronounced, the decree will be drawn up.

Who can appeal?

1. Any party to the suit, who is adversely affected by the decree or the transferee of
interest of such party has been adversely affected by the decree provided his name
was entered into record of suit.
2. An auction purchaser from an order in execution of a decree to set aside the
same on the grounds of fraud.
3. Any person who is bound by the decree and decree would operate res judicata
against him.

Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316
In this case, the Trial Court judge prohibited the exhibition of film both in India and
abroad. Session Judge permitted the exhibition of film in abroad. Subsequently, a
party who moved in appeal did not have locus standi. It was reversed by division
bench saying that its not proper on the part of judge as he entertained the suit on
which party has no locus standi.9

Leading Case Law on Right to Appeal and Doctrine of Merger

1. Sadhu Singh v. Dharam Dev 1981 SCC 510

In this case, in Punjab there used to appeal right of preemption and in Muslim
Personal Law, if appeal person wants to sell immovable property, he must ask the
person who have adjoining property.

In 1973, an Act was passed, Punjab Premption Repeal Act, 1973 by which premptory
right was abolished. Provision: “No Court shall pass appeal decree in any
preemption suit.” In this case, decree has already been passed by Court of Original
Top
jurisdiction and matter was pending in appeal.
The issue before the Court was that: Whether the appellate Court can pass appeal
 pp p pp
decree?
It was held that the lower Courts decree would get merged into appellate Courts
decree. Where decree is drawn on appellate order and once act passed, no
premptory right. In this proceeding the appellate Court is deprived of power to pass
appeal decree.

Con icting situation when legislation is passed - There may be two situations:
1. A right to appeal exist on the date of institution of suit and subsequent law
passed taking right to appeal.
2. No right to appeal on the date of institution of suit but subsequently law passed
granting right to appeal.
2. State of Bombay v. Supreme General Films and Exchange AIR 1960 SC 980
In this case it was held that right to appeal cannot be taken away, if available on the
date of institution of suit and subsequently law passed taking away right to appeal.

3. Delhi Cloth & General Mills v. I T Commissioner AIR 1927 PC 242

Where right to appeal is created subsequently shall not be available to a litigant if

the suit was instituted prior to such creation.

4. Veeraya v. Subbia Choudhry AIR 1957 SC 540

Right to appeal get vested on the date suit is instituted. A new right to appeal gets
created can't be availed by the parties to a proceeding which commenced earlier
during the creation of new rights.

Case Laws on Doctrine of Merger

Ram Chandra Abhyankar v. Krishnaji Dalladarya AIR 1970

SC 1
In this case Supreme Court laid down three conditions for the application of
Doctrine of Merger:
1. the supereior jurisdiction should be appeallte or revisional in nature
2. jurisdiction should have been excercised after the issuance of notice
3. After a full hearing in presence of both the parties i.e. on lu the part where the
superior court's order goes into detail of issue, to that extent only inferior court's
order gets merged.

It will depend on the nature of jurisdiction exercised, the content and subject
matter of challenged capable of being laid down. The superior court should be
capable of being reversal or modifying or affirming the order put in issue before it.
In writ jurisdiction, the jurisdiction is not appellate or revisional but it is a collateral
challenged on the principle of natural justice.

5. Kuna Ahymed v. State of Kerala AIR 2000 SC 2608

Kerala legislation passed the Act, kereala Private Forest Act, 1971 whereby appeal
forest tribunal was constituted. It was to determine whether any private forest is to
be vested in government or not? On behalf of the [petitioners, they raised appeal
dispute about 1020 acres of forest land. The tribunal held in favour of petitioners.
Top

Kerala Government appeal against the decision of Forest Tribunal before Kerala
 e a a Go e e t appea aga st t e dec s o o o est bu a be o e e a a
High Court. The Kerala High Court dismissed the appeal by detailed order. No
provision for further appeal in the act, so Kerala Government filed appeal SLP under
article 136 before the a SC, which was dismissed. Subsequently the Act was
amended and appeal new Section 8c was introduced providing for review of order
of High Court. Consequently appeal revision petition was filed before Kerala High
Court for review its earlier order in appeal.

Appeal preliminary decree was taken on behalf the petitioner that Kerala High
Courts order get merged with Supreme Court's order whereby SC had dismissed the
SLP on merits i.e. there doesn't exist an order of High Court which can be reviewed.

This objection was dismissed by Kerala High Court. Appellant went to Supreme
Court against the preliminary decree.

The issue before the Court was that- where aSLP is filed and dismissed, whether
there is appeal ground for the application of Doctrine of Merger?

Justice Lahoti. Observed in detail: What the stage of SLP?

When “slp” is heard by SC, it is only leave for admission for appeal. The court
doesn't exercise appellate jurisdiction, but just discretionary jurisdiction to admit or
deny the appeal.

"Where the SLP is dismissed by appeal brief or cryptic order or reasoned order
must be taken into consideration. Therefore, while dismissing SLP, Supreme Court is
giving appeal detailed judgment and pronouncing certain principles of law, those
provisions are binding on lower court by virtue of Article 141. But, where dismissal
SLP is appeal brief order, then there is no law.”

Conclusion
The expression appeal has not been defined in the Code of Civil Procedure 1908. It
is an application or petition to appeal higher Court for are consideration of the
decision of appeal lower court. It is appeal proceeding for review to be carried out
by appeal higher authority of appeal decision given by appeal lower one. In appeal
is appeal creature of statute and right to appeal is neither an inherent nor natural
right.

Appeal person aggrieved by appeal decree is not entitled as or right to appeal from
decree. The right to appeal must be given by statute. Section 9 confers on appeal
litigant, independently of any statute, appeal right to institute appeal suit of civil
nature in appeal court of law. So he has appeal right to apply for execution of
appeal decree passed in his favour, but he has no right to appeal from appeal
decree or order made against him, unless the right is clearly conferred by statute.
Section 96 of the Code gives appeal right to litigant to appeal from an original
decree. Section 100 gives him appeal right to appeal from an appellate decree in
certain cases. Section 109 gives him right to appeal to the Supreme Court in certain
cases. Section 104 gives him right to appeal from orders as distinguished from
decrees.

As soon as judgment is pronounced against party, right to appeal arises. Right to

appeal doesn't arise when adverse decision is given, but on the day suit is
instituted i.e. proceedings commenced, right to appeal get conferred. Thus, it can
be said the Right to appeal is appeal substantive right vested in parties from the
Top
date suit instituted.