Civil Procedure Code

A STUDY OF

First Appeal

Submitted to: Submitted by:

Dr. Karan Jawanda Mamta

Asst. Prof.(UILS,PU) 148/15

CHANDIGARH B.COM LL.B (H)
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ACKNOWLEDGEMENT

I would like to express my deep gratitude to my teacher, Dr. Karan, for her patient guidance,

enthusiastic encouragement and useful critiques of this project work. I would also like to

thank her for her advice and assistance in keeping my progress on schedule. My grateful

thanks are also extended to my family for their support and encouragement throughout my

study.

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TABLE OF CONTENTS

SECTION 96 - APPEAL FROM ORIGINAL DECREE..........................................................1

SECTION 97 - APPEAL FROM FINAL DECREE WHERE NO APPEAL FROM
PRELIMINARY DECREE........................................................................................................6
SECTION 98 – DECISION WHERE APPEAL HEARD BY TWO OR MORE JUDGES.....7
SECTION 99 – NO DECREE TO BE REVERSED OR MODIFIED FOR ERROR OR
IRREGULARITY NOT AFFECTING MERITS OR JURISDICTION....................................9
SECTION – 107 – POWER OF APPELLATE COURT.........................................................10
ORDER – 41 – APPEALS FROM ORIGINAL DECREES...................................................13
BIBLIOGRAPHY....................................................................................................................23

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SECTION 96 - APPEAL FROM ORIGINAL DECREE

INTRODUCTION –

The expression ‘appeal’ has not been defined any where under the Code of Civil
Procedure, 1908. However, it may be defined as “the judicial examination of decision by a
Higher Court of the decision of an inferior court”. 1 The Privy Council in Nagendra Nath v.
Suresh Chandra2 held that “any application by a party of an Appellate Court, asking to set
aside or reverse a decision of a subordinate court, is an appeal within the ordinary meaning
of the term. It is a right of entering a superior court and invoking its aid and interposition
to redress an error in the Court below”. It has been stated under Section 96 of the Code of
Civil Procedure (herein referred to as ‘CPC’) as:-
“(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 the Court authorized to hear appeals from the decisions of
such Court.
(2) An appeal may lie from an original decree passed ex parte.
(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.”

SCOPE AND APPLICATION –

The right of appeal is one of entering a superior court and invoking its aid and interposition to
redress the error of the court below. This section expressly gives a right to appeal from every
decree passed by any Court exercising original jurisdiction unless such right is denied by any
other law for the time being in force. It is well settled that a right of appeal must be given by
a statute or by some equivalent authority. But it is equally well settled that a right of appeal
inherits in no one and therefore an appeal for its maintainability must have the clear authority
of law and therefore an appeal for its maintainability must have clear authority of law and

1
Chamber's 21st Century Dictionary (1997, Edn.), p. 59.
2
AIR 1932 PC 165.

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that explains why the right of appeal is described as a creature of statute. 3 Where a legal right
is in dispute, the courts are governed by the ordinary rules of procedure applicable thereto
and an appeal lies if authorized by such rules, notwithstanding that the legal right claimed
arises under statute which does not in terms confer a right of appeal.
The law provides the remedy of an appeal because of the recognition that those
manning the judicial tier too commit errors. A Court of appeal has right and is indeed under
an obligation to appraise the conclusions reached by the Court of the first instance so as to set
right what are the errors of fact as also of law.

COMPETENCY OF APPEAL –
Where a legal right to a dispute, has to be adjudicated by courts of ordinary civil jurisdiction
ordinary rules of civil procedure become applicable, and an appeal lies. Whether an appeal is
valid or competent can be determined only after an appeal is heard, but there is nothing to
prevent the filing of an appeal which may ultimately be found to be incompetent. If a court
entertains an appeal which does not lie, a second appeal lies. Where the earlier judgment
rendered in appeal is recalled, the entire judgment stood upset and is no longer available for
deciding the appeal either to concur or accept the reasoning given in the judgment recalled.4

MAINTAINABILITY OF APPEAL –
Where during the pendency of the appeal, the sole defendant dies, his legal representatives
are not brought on the record, the order/judgment passed in the appeal is the nullity, second
appeal against such order/judgment is not maintainable.

AN APPEAL LIES FROM THE DECREE –

Where all defendants appealing have the same defense, there is only one appeal in such case.
An appeal lies from the decree and not from the judgment although the word “decisions”
appears in sub-sec (1). There can be appeal against findings embodies in the judgment but not
in the decree. The dismissal of an appeal against a pro forma defendant against whom no
relief was claimed does not stop the plaintiff from proceeding with the appeal against the
contesting defendants.

WHO CAN APPEAL –

3
Ganga v. Vijay, AIR 1974 SC 1126.
4
Laxmappa Bhimappa Hulsgeriv. Janamappa Shellappa Korwar, AIR 2004 SC 2445.

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S.96 does not enumerate the persons who can file an appeal under this section. It is however
fundamental that in order to be entitled to file an appeal the person must be aggrieved by and
dissatisfied with the judgment. Unless a person is aggrieved, prejudicially or adversely
affected by the decree he is not entitled to file appeal. In order to be entitled to file an appeal
as aggrieved person he must have a legal grievance which might have deprived him of the
benefit in case the judgment had gone the other way.

DISTINCTION BETWEEN APPEAL & REVISION –

The right of appeal is a substantive right, but there is no substantive right in making an
application under S. 115. An appeal is a continuation of the proceedings, in effect the entire
proceedings are before the appellate authority which has the power to review the evidence
subject to the statutory limitations prescribed. But in a revision, the revisional authority has
not the powers to review the evidence unless expressly conferred by a statute. It cannot travel
beyond the order passed or proceedings recorded by the inferior authority and make fresh
enquiry and pass orders on merits on the basis of the said enquiry.

SUB-SECTION (2) [EX PARTE DECREE] –

A defendant not applying under Order 9 Rule 13 can appeal against the ex parte decree under
this section. Even if an appeal is not maintainable under Order 43, an appeal lies against the
ex parte decree under Section 96. The Bombay High Court dissenting from the Madhya
Pradesh High Court in Sumera v. Madanlal5 has held that an appeal against ex-parte decree
filed after dismissal of restoration application under Order 9 Rule 13 is maintainable. 6 In an
appeal under Section 96(2) an error, defect or irregularity which has affected the decision of
the case can be challenged but in such an appeal it cannot be urged that the ex parte
proceedings were wrongly taken.
When an appeal is filed against an ex parte decree, nor it be converted into an appeal
under order XVIII Rule 1(d). When an ex parte decree is passed, the defendant has two clear
options, one, to file an appeal and another to file an application for setting aside the order in
terms of Order 9 Rule 13 of the Code of Civil Procedure. He can take recourse to both the
proceedings simultaneously but in the event the appeal is dismissed, as a result whereof the
ex parte decree passed by the Trial Court merges with the order passed by the Appellate
Court.

5
AIR 1989 MP 224.
6
KhurshedBanoov. Vasant MallikarjunManthalkar, AIR 2003 Bom 23.

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SUB-SEC (3) [CONSENT DECREE] –

Sub-section (3) is based on the broad principle of estoppel. It presupposes that the parties to
an action can expressly or by implication waive or forego their right of appeal by any lawful
agreement or compromise or even by conduct. Where there is a partial compromise and
adjustment of the suit by a lawful agreement and a decree is passed in terms thereof, and
decree to that extent is a consent decree and it is not appealable because of the express bar in
sub-s (3). Where a suit is decreed on claim admitted by defendant it is not a consent decree,
appeal is not barred. Consent decrees are passed under Order 23 Rule 3 and no appeal lies
from such decree.
Justice Raveendran speaking for the Bench in the case of Pushpa Devi Bhagat v.
Rajinder Singh7 laid down the law in the following words:

“The position that emerges from the amended provisions of Order 23 can be summed up thus:
i. No appeal is maintainable against a consent decree having regard to the specific
bar contained in s. 96(3) CPC.
ii. No appeal is maintainable against the order of the court recording the compromise
(or refusing to record a compromise) in view of the deletion of clause (m) Rule 1
of Order 43.
iii. No independent suit can be filed for setting aside a compromise decree on the
ground that the compromise was not lawful in view of the bar contained in Rule
3A.
iv. A consent decree operates as an estoppel and is valid and binding unless it is set
aside by the court which passed the consent decree, by an order on an application
under the proviso to Rule 3 of Order 23.
Therefore, the only remedy available to a party to a consent decree to avoid such consent
decree, is to approach the court which recorded the compromise and made a decree in
terms of it, and establish that there was no compromise. In that event, the court which
recorded the compromise will itself consider and decide the question as to whether there
was a valid compromise or not. This is because a consent decree is nothing but contract
between parties super-imposed with the seal of approval of the court. Validity of a
consent decree depends wholly on the validity of the agreement or compromise on which
it is made.”
7
AIR 2006 SC 2628.

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LIMITATION –
Condonation of delay in filing appeal without recording satisfaction of reasonable or
satisfactory explanations for the delay is not proper and judicious. Where an appeal is filed
along with an application for condonation of delay in filing that appeal, the dismissal of
appeal on the refusal to condone the delay is nevertheless a decision in appeal.

SUB-SECTION (4) [COURTS OF SMALL CAUSES] –

The sub-section is new, having been inserted by the Amendment Act, 1976. Though the
section provides for appeals against every decree, the new sub-section restricts that right and
bars appeal from facts against decrees passed in suits cognizable by the courts of small causes
and where the amount or value of the subject matter of the suit does not exceed three
thousand rupees. The sub-section has been enacted to bring the section in line with the
Presidency Small Cause Courts Act, 1882 and the Provincial Small Cause Courts Act, 1887
which contains similar restriction.

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SECTION 97 - APPEAL FROM FINAL DECREE WHERE NO APPEAL

FROM PRELIMINARY DECREE

INTRODUCTION –
“Appeal from final decree where no appeal from preliminary decree - Where any party
aggrieved by a preliminary decree passed after the commencement of this Code does not
appeal from such decree, he shall be precluded from disputing its correctness in any appeal
which may be preferred from the final decree.”

SCOPE AND APPLICATIONS –

The section settles a point on which opinions varied. It lays down that omission to appeal
from a preliminary decree within the period of limitation precludes a party from disputing its
correctness or raising any objection to it in appeal from the final decree. The object is that
questions decided by court at the stage of preliminary decree will not be open for registration
at the time of final decree, if no appeal had been preferred against the final decree. So an
appeal against the final decree would inevitably be limited to the points arising from
proceedings taken subsequent to the preliminary decree. A minor who does not avoid a
preliminary decree passed by non-compliance with Order 32 Rule 7, cannot avoid it by
preferring an appeal against the final decree. A preliminary decree in a mortgage or partition
suit embodies the final decision of the court. If an appeal is not filed against the preliminary
decree and its correctness is not challenged, it becomes final and the party aggrieved thereby
will not be permitted to challenge its correctness in an appeal against final decree. Where in a
suit for partition, the defendant asserted possession though defendant preliminary decree was
passed, no appeal was filed from the preliminary decree, at the time of passing of the final
decree, defendant would not be permitted to take plea that he was tenant in the suit premises.

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SECTION 98 – DECISION WHERE APPEAL HEARD BY TWO OR

MORE JUDGES

INTRODUCTION –
“Decision where appeal heard by two or more Judges –
(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided
in accordance with the opinion of such Judges or of the majority (if any) of such Judges.
(2) Where there is no such majority which concurs in a judgment varying or reversing the
decree appealed from, such decree shall be confirmed:
Provided that where the Bench hearing the appeal is 1[composed of two or other even number
of Judges belonging to a Court consisting of more Judges than those constituting the Bench]
and the Judges composing the Bench differ in opinion on a point of law, they may state the
point of law upon which they differ and the appeal shall then be heard upon that point only by
one or more of the other Judges, and such point shall be decided according to the opinion of
the majority (if any) of the Judges who have heard the appeal including those who first heard
it.
(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the
letters patent of any High Court.”

SUB-SECTION (1) AND (2) [APPEAL HEARD BY TWO OR MORE JUDGES ] –

The difference of opinion between judges who constitute the Bench hearing the appeal, on a
point of law alone would be referred to a third or other judges. By implication, on a question
of fact, when there is no majority opinion varying or reversing the decree, such decree should
be confirmed,8 appeal under Section 15 of the Letters Patent Act, would not lie. The words
“consisting of” in Section 98(2) shall mean and also considered to have relevance only to the
sanctioned strength. When the sanctioned strength is of three judges, and the two judges
differ in opinion and refer the matter to the opinion of the third judge, the matter should await
till the arrival of the third Judge, and the Judgment of the lower Court should not be
confirmed.9 The proper course for the judges who have dissented in their respective opinions
while hearing a writ petition is not to pass final order either allowing or dismissing the same
but to state their point of difference after expressing their opinions. If the point of difference

8
Tej Kaur v. Kirpal Singh, AIR 1995 SC 1681.
9
Sikkim Subba Associates v. State of Sikkim, AIR 2001 SC 2062.

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is not stated, it will be for the third judge to whom the case is referred to ascertain the same
and to give his opinion thereon.10 The word “may” in the proviso cannot be read as equivalent
to “shall”. It is discretionary.

SUB-SECTION (3) [LETTERS PATENT] –

It was inserted by S. 2 of the Repealing and Amending Act 18 of 1928. In a situation arising
from a difference of opinion among the two judges comprising a division bench of High
Court there are two provisions – one in S.98 and the other in clause 28 of the Letters Patent.
The basic difference between these two provisions is that (i) under clause 28 reference is
obligatory and not discretionary as in S.98 and (ii) under clause 28 reference may be both on
points of law and fact and not point of law only in S.98. Before the insertion of sub-section
(3) the courts were divided in opinion, but it was generally held that in second appeals from
mofussil S.98 applied and Clause 36 applied to appeals under the Letters Patent.

10
Shriram Industrial Enterprises Ltd. v. Union of India, AIR 1996 All 135 (FB).

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SECTION 99 – NO DECREE TO BE REVERSED OR MODIFIED FOR

ERROR OR IRREGULARITY NOT AFFECTING MERITS OR
JURISDICTION

INTRODUCTION –
It has been stated under Section 99 which has been stated as:-
“Section 99 - No decree to be reversed or modified for error or irregularity not affecting
merits or jurisdiction - No decree shall be reversed or “substantially varied, nor shall any case
be remanded in appeal on account of any mis joinder or non-joinder of parties or causes of
action or any error, defect or irregularity in any proceedings in the suit, not affecting the
merits of the case or the jurisdiction of the Court. Provided that nothing in this section shall
apply to non-joinder of a necessary party.”

SCOPE & APLICATION –

This section indicates the principle to be adopted in hearing appeals. A decree shall not be
reversed or varied and merely because there has been any error, defect or irregularity in any
proceedings in the suit. But where the error, defect or irregularity is of such importance as to
affect the merits of the case (i.e. production of a wrong decision) or the jurisdiction, it
becomes a material irregularity justifying the interference of the court. A defect of this kind
cannot be cured under this section. S. 167 Evidence Act, S.11 Suits Valuation Act. 11 S. 99
clearly says that a defect which does not affect the merits of the case or the jurisdiction of the
court cannot invalidate the decision. A jurisdictional defect or a procedural irregularity or
illegality is open to correction by an appellate court only when it has occasioned a failure of
justice.12 Non-transposition of defendants as co-plaintiff in a suit where defenses of all other
defendants were fully considered and adjudicated upon by the High Court allowing her
appeal is cured by S. 99.
Misjoinder includes non-joinder. If non-joinder of parties is of a kind that affects
jurisdiction in the sense that court cannot make a decree in the absence of the parties
concerned S. 99 cannot cure it.

11
Kiran SInghv. Chaman, AIR 1954 SC 340.
12
George v. Thekkekkara, AIR 1979 Kar 1 (FB).

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SECTION – 107 – POWER OF APPELLATE COURT

INTRODUCTION –
“Power of Appellate court.-
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall
have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as
nearly as may be the same duties as are conferred and imposed by this Code on Courts of
original jurisdiction in respect of suits instituted therein.”

SUB-SECTION (1) –
First appellate court is competent to enter into all questions of fact and record a final finding
on all those questions including the appreciation of the trial evidence. If the essential
ingredients necessary for finding of a fact of sub-tenancy have not in fact been found by the
Courts below even the Supreme Court is bound to examine the question where injustice or
wrong is done. Before reversing a finding of fact, the appellate court has to bear in mind the
reasons ascribed by trial court. An appeal is a continuous of a suit or proceedings wherein the
entire proceedings are going to be left open for consideration by the appellate authorities,
which has the power to review the entire evidence subject, of course, to the prescribed
statutory limitations. But in the case of revision whatever powers the revisional authority may
have, it has no power to reassess and reappreciate the evidence unless the statute expressly
confers on it that power. That limitation is implicit in the concept of revision. The appeal
being a proceeding in continuation of the original suit, the first appellate Court is vested with
a similar power as of the Court of original jurisdiction. 13 The only rule of practice which it
has to bear in mind is that when there is conflict of oral evidence of the parties on any matter
in issue and the decision hinges on the credibility of witnesses, then caped the trial judge’s
13
Vasant Ganesh Damle v. ShrikantTrimbakDatar, AIR 2002 SC 1237.

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notice or there is sufficient balance of improbability to displace his opinion where the
credibility lies the appellate court should not interfere with the findings of the trial court on a
question of fact. The appellate court can remand the case for recording further evidence.14

CLAUSE (B)
The appellate court can exercise powers of remand under the circumstances mentioned in
Order 41 rule 23 and 25. But it does not restrict the court’s power of remand in any other
suitable case in the exercise of its inherent jurisdiction under Section 151. 15The appellate
court has power to remand a case either under Rule 23 or under Rule 23-A. A remand cannot
be ordered lightly. It can be ordered if the following conditions are satisfied – (a) The suit
must have been disposed of by the trial court on a preliminary point; (b) The decree under
appeal must have been reversed. An order of remand is appealable.

CLAUSE (C)
The appellate Court can frame issue other than those framed by trial court, but refer them for
trial.16 The points of distinction between Rules 23, 23-A and Rule 25 are as follows: (1)
While after remand under Rules 23 or 23-A, the whole case goes back for decision to the
lower court, under Rule 25 the case is retained in the file of the appellate Court and only
issues are remitted to the lower court for trial and findings thereon; (b) An order of remand
under Rules, 23, 23-A is a final order which cannot be reconsidered by the court which
passed it except on review, while an order under Rule 25 is an interlocutory order which is
open to be reconsidered by the court which has passed it; (c) Whereas an order under Rules
23, 23-A is appealable, an order under Rule 25 is not appealable.

CLAUSE (D) – RULES – 27 – 29 –

Section 107 enables an appellate court to take additional evidence or require such other
evidence to be taken subject to such conditions and limitations as are prescribed under Order
41, Rule 27. Principle to be observed ordinarily is that the appellate Court should not travel
outside the record of the lower Court and cannot take evidence in appeal. Section 107(d) is an
exception to the general rule, and additional evidence can be taken only when the conditions
and limitations laid down in the said rule are found to exist. The Court is not and the parties
are not entitled as of right to the admission of such evidence and the matter is entirely in the
14
Thachara Bros. v. M.K. Marymol, (1999) 1 SCC 298.
15
Steel Authority of India v.New Marine Coal Co. Ltd, AIR 1996 SC 1250.
16
ViswanathaAchariv. Kanakasabapathy, AIR 2005 SC 3109.

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discretion of the Court, which is of course to be exercised judicially and sparingly. 17Rule 27
enumerates the circumstances in which the appellate court may admit additional evidence,
whether oral or documentary, in appeal. They are as under:- 18 (1) Where the lower court has
improperly refused to admit evidence which ought to have been admitted; or (2) Where such
additional evidence was not within the knowledge of the party or could not, after exercise of
due diligence, be produced by him at the time when the lower court passed the decree; or (3)
Where the appellate court itself requires such evidence either (a) to enable it to pronounce
judgment; or (b) for any other substantial cause.

SUB-SECTION (2) –
Thepowers of an appellate or revisional authority, unless stated otherwise in the governing
statute, are co-extensive with those of original authorities. Section 107(2) does not have the
effect of rendering an appellate court a court of original jurisdiction when exercising its
powers to pass incidental orders. All that Section 107(2) states is that subject to limitation
contained in the Code the powers of the appellate Court shall be co-extensive with the powers
and obligations conferred and imposed upon the courts of original jurisdiction in respect of
suits filed before them. Such orders passed in interlocutory applications will be orders passed
in appeal. The appeal is considered to be an extension ofthe suit because under Section 107 of
the Code of Civil Procedure, the appellate Court has the same powers as are confined by the
Code onthe Courts of original jurisdiction in respect of suits instituted therein. Such a power
can be exercised by the appellate Court “as nearly as may be” exercised by the trial Court
under the Code. If the powers conferred upon the Trial Court are under a specified statute and
not under the Code, it has to be ascertained as to whether such a power was intended to be
exercised by theappellateCourt as well. Such a position can be ascertained by having
reference to the specified law by keeping in mind the legislative intention of conferment of
power onthe appellate Court either expressly or by necessary implication.

ORDER – 41 – APPEALS FROM ORIGINAL DECREES

17
MahabirSInghv. Naresh Chandra, AIR 2001 SC 134.
18
Rule 27(1)(a), (aa) & (b).

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FORM OF APPEAL –
The memorandum sets forth, concisely and under distinct heads, the grounds of objection to
the decree appealed from, without any argument or narrative, such grounds being numbered
consecutively. 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. 19The appellant
shall not, except by leave of the court, urge or be heard in support of any ground of objection
not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal,
shall not be confined to the grounds of objection set forth in the memorandum of appeal or
taken by leave of the court under this rule: Provided that the court shall not rest its decision
on any other ground unless the party who may be affected thereby has had a sufficient
opportunity of contesting the case on that ground.20The appellant court however is entitled to
decide an appeal even on a ground not set forth in the memorandum of appeal. Where the
memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be
rejected, or be returned to the appellant for the purpose of being amended within a time to be
fixed by the court or be amended then and there; where the court rejects any memorandum, it
shall record the reasons for such rejection. Where a memorandum of appeal is amended, the
Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment. When
an appeal is presented after the expiry of the period of limitation specified there for, it shall
be accompanied by an application supported by affidavit setting forth the facts on which the
appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal
within such period.If the court sees no reason to reject the application without the issue of a
notice to the respondent, notice thereof shall be issued to the respondent and the matter shall
be finally decided by the court before it proceeds to deal with the appeal under rule 11 or rule
13, as the case may be. Where an application has been made under sub-rule (1), the court
shall not make an order for the stay of execution of the decree against which the appeal is
proposed to be filed so long as the court does not, after hearing under rule 11, decide to hear
the appeal.21 In State of Madhya Pradesh v. Pradeep Kumar, the object of this provision is
two-fold; firstly, to inform the appellant that the delayed appeal will not be entertained unless
it is accompanied by an application explaining the delay; and secondly, to communicate to

19
Order XLI, Rule 1 (3).
20
Order XLI, Rule 2.
21
Order XLI, Rule 3-A.

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respondent that it may not be necessary for him to get ready on merits as the court has to first
deal with an application for condonation of the delay as a condition precedent. The defect is
curable. Where there are more plaintiffs or more defendants than one in a suit, and the decree
appealed from proceed on any ground common to all the plaintiffs or to all the defendants,
any one of the plaintiffs or of the defendants may appeal from the whole decree, and
thereupon the Appellate Court may reverse or vary the decree in favor of all the plaintiffs or
defendants, as the case may be. Where there are more plaintiffs or more defendants than one
in a suit, and the decree appealed from proceed on any ground common to all the plaintiffs or
to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole
decree, and thereupon the Appellate Court may reverse or vary the decree in favor of all the
plaintiffs or defendants, as the case may be.22

STAY OF PROCEEDINGS –
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 having been preferred from the decree; but the Appellate Court may
for sufficient cause order stay of execution of such decree.Explanation An order by the
Appellate Court for the stay of execution of the decree shall be effective from the date of the
communication of such order to the court to first instance, but an affidavit sworn by the
appellant, based on his personal knowledge, stating that an order for the stay of execution of
the decree has been made by the Appellate Court shall, pending the receipt from the
Appellate Court of the order for the stay of execution or any order to the country, be acted
upon by the court of first instance.(2) Stay by court which passed the decree :—Where an
application is made for stay of execution of an appealable decree before the expiration of the
time allowed for appealing there from, the court which passed the decree may on sufficient
cause being shown order the execution to be stayed.No order for stay of execution shall be
made under sub-rule (1) or sub-rule (2) unless the court making it is satisfied—(a) that
substantial loss may result to the party applying for stay of execution unless the order is
made; (b) that the application has been made without unreasonable delay; and(c) that security
has been given by the applicant for the due performance of such decree of or as may
ultimately be binding upon him.Subject to the provisions of sub-rule (3), the court may make
an ex parte order for stay of execution pending the hearing of the application.(5)
Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to
22
Order XLI, Rule 4.

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make the deposit or furnish the security specified in sub-rule (3) of rule 1, the court shall not
make an order staying the execution of the decree. 23(1) Where an order is made for the
execution of a decree from which an appeal is pending, the court which passed the decree
shall, on sufficient cause being shown by the appellant, require security to be taken for the
restitution of any property which may be or has been taken in execution of the decree or for
the payment of the value of such property and for the due performance of the decree or order
of the Appellate Court, or the Appellate Court may or like cause direct the court which
passed the decree to take such security. (2) Where an order has been made for the sale of
immovable property in execution of a decree, and an appeal is pending from such decree, the
sale shall, on the application of the judgment debtor to the court which made the order, be
stayed on such terms as to giving security or otherwise as the court thinks fit until the appeal
is disposed of.24 The powers conferred by rules 5 and 6 shall be exercisable where an appeal
may be or has been preferred not from the decree but from an order made in execution of
such decree.25

SUMMARY DISMISSAL –
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; 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; The
dismissal of an appeal under this rule shall be notified to the court from whose decree the
appeal is preferred; 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. 26 The discretion however must
be exercised judiciously and not arbitrarily. Such power should be used very sparingly and
only in exceptional cases. When an appeal raises triable issues, it should not be summarily
dismissed. Every appeal shall be heard under rule 11 as expeditiously as possible and
endeavour shall be made to conclude such hearing within sixty days from the date on which
the memorandum of appeal is filed.27

23
Order XLI, Rule 5.
24
Order XLI, Rule 6.
25
Order XLI, Rule 8.
26
Order XLI, Rule 11.
27
Order XLI, Rule 11-A.

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PROCEDURE AT HEARING –
 Right to begin –
On the day fixed, or on any other day to which the hearing may be adjourned, the appellant
shall be heard in support of the appeal. The court shall then, if it does not dismiss the appeal
at once, hear ... respondent against the appeal and in such case the appellant shall be entitled
to reply.28
 Dismissal for default and restoration –
Where on the day fixed, or on 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. Explanation: Nothing this sub-rule shall be construed as
empowering the court to dismiss the appeal on the merits. Hearing appeal ex parte. — Where
the appellant appears and the respondent does not appear, the appeal shall be heard ex
parte.29The appeal, however, cannot be dismissed although the notice has not been served
upon the respondent, if the respondent appears when the appeal is called on for hearing.
Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 [***, the appellant may
apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that
he was prevented by any sufficient cause from appearing when the appeal was called on for
hearing or from depositing the sum so required, the court shall re-admit the appeal on such
terms as to costs or otherwise as it thinks fit. 30Where the appeal has been dismissed for
default or for non-payment of process fees, the appellant may apply to the appellate court for
restoration of the appeal. On sufficient cause being shown, the appellate court shall restore
the appeal on such terms as to costs or otherwise as it thinks fit.31
 Ex Parte hearing and rehearing –
Where an appeal is heard ex parte and judgment is pronounced against the respondent, he
may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the court that the
notice was not duly served or that he was prevented by sufficient cause from appearing when
the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to
costs or otherwise as it thinks fit to impose upon him.32
 Addition of respondent –

28
Order XLI, Rule 16.
29
Order XLI, Rule 17.
30
Order XLI, Rule 19.
31
Rafiqv. Munshilal, (1981) 2 SCC 788.
32
Order XLI, Rule 21.

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Where it appears to the court at the hearing that any person who was a party to the suit in the
court from whose decree the appeal is preferred, but who has not been made a party to the
appeal, is interested in the result of the appeal, the court may adjourn the hearing to a future
day to be fixed by the court and direct that such person be made a respondent. No respondent
shall be added under this rule, after the expiry of the period of limitation for appeal, unless
the court, for reasons to be recorded, allow that to be done, on such terms as to costs as it
thinks fit.33 The object is to protect parties to the suit who have not been made respondents in
the appeal from being prejudiced by modifications being made behind their back in the
decree under appeal.34

CROSS – OBJECTIONS –
The Supreme Court examined the nature and scope of cross-objections as provided in Order
41 of the Code of Civil Procedure, 1908, in Superitending Engineer &Ors. v. B.Subba
Reddy35. The Principles applicable to cross-objections are reproduced as:
“12. In SahaduGangaramBhagadev. Special Deputy Collector.Ahmadnagar and Anr.36, this
Court was considering the question of nature of cross-objections in the context of payment of
court fee under the Bombay Court Fees Act, 1959. It was submitted that Article 3 of Schedule
1 of the said Act was inapplicable because that article referred to "plaint, application or
petition (including memorandum of appeal), to set aside or modify any award otherwise than
under the Arbitration Act, 1940" and that no court fee was payable on cross-objections, This
Court held as under Before Article 3 of Schedule 1 can be attracted, there must be (1) a
plaint, application or petition (including a memorandum of appeal); (2) in that plaint,
application or petition (including memorandum of appeal), there must be a prayer to set aside
or modify any award; and(3) the award in question must not be one under the Arbitration Act,
1940. There is no dispute that the proceedings with which we are concerned in this case fulfil
two out of the three requirements enumerated above. The award concerned in the proceedings
is not one made under the Arbitration Act, 1940 and through his cross-objection the appellant
seeks to get the award modified. The only point in controversy is whether the cross-objection
filed by the appellant can be considered as “application or petition” within the meaning of
Article 3 of Schedule I. The words in the bracket “including memorandum of appeal” in our
opinion refer to the word ‘petition’ immediately preceding those words. In other words the
33
Order XLI, Rule 20.
34
Subramaniamv. Veerabhadram, (1908) 31 Mad 442.
35
AIR 1999 SC 1747.
36
AIR 1971 SC 1887.

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word 'petition' includes the memorandum of appeal as well. The question is whether a cross-
objection filed by a respondent in an appeal can be considered as a memorandum of appeal.
We have no doubt that it is a memorandum of appeal in substance though not in form. It is a
right given to a respondent in an appeal to challenge the order under appeal to the extent he is
aggrieved by that order. The memorandum of cross-objection is but one form of appeal. It
takes the place of a cross-appeal. It is true that while Article 1 of Schedule 1 refers to 'cross-
objection', Article 3 of that Schedule does not refer to cross-objection as such but that in our
opinion make no difference. It is only an inartistic drafting.
13. In Hakam Singh v. Gammon (India) Ltd.37, the appellant was aggrieved by the order of
the Allahabad High Court directing that a petition filed under Section 20 of the Arbitration
Act, 1940 in a subordinate court be returned to him for presentation to the proper court. This
Court upheld the order of the High Court and said, with reference to Section 41 of the Act,
that the Code in its entirety applied to proceedings under that Act and that the jurisdiction of
the courts under the Act to entertain a proceeding for filing an award was accordingly
governed by the provisions of the Code.
14. InN. Jayaram Reddy and Anr.v. Revenue Divisional Officer and Land Acquisition
Officer, Kurnool38, this Court was considering the nature of cross-appeals and cross-
objections. It said:Cross-appeal and cross-objections provide two different remedies for the
same purpose and that is why under Order 41, Rule 22, cross-objections can be preferred in
respect of such points on which that party could have preferred an appeal. If such be the
position of cross-objections and cross-appeal a differentiation in the matter of their treatment
under Rules 3 and 4 cannot be justified merely on the ground that in case of cross-objections
they form part of the same record while cross-appeals are two independent proceedings.To
say that cross-appeals are independent of each is to overlook the obvious position which
parties adopt in cross-appeals. Interdependence of cross-appeals is the same as
interdependence appeal and cross-objections because as in the case of appeal and cross-
objections a decision with regard to appeal would directly impinge upon the decision in
cross-objections and vice versa. Indubitably the decision in one of the cross-appeals would
directly impinge upon the decision in the other because both ultimately arise from the same
decree. This is really the interdependence of cross-appeals and it is impossible to distinguish
cross-appeals from appeal and cross-objections".This Court then said that the cases which
have taken the view that the view in cross-appeals the position is different than the one in

37
AIR 1971 SC 740.
38
AIR 1979 SC 1393.

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appeal and cross-objections do not proceed on any discernible legal principle. Nor can they
be explained by any demonstrable legal principle but in fact they run counter to the
established legal principle.
15. InMs. H.M. Kamaluddin Ansari & Co. v. Union of India and Ors.39, this Court was again
considering the ambit and scope of Section 41 of the Arbitration Act. It said:The appellant in
the instant case took the stand that there was no concluded contract between the parties
including arbitration. Therefore, the order of injunction passed in the instant case could not be
for the purpose of and in relation to arbitration proceedings. Faced with this difficulty Shri
S.N. Kaicker, learned Counsel for the appellant, fell back upon Clause (a) of Section 41 to
content that Clause (a) makes the CPC applicable to all proceedings before the court and to
all appeals under the Act and, therefore, the appellant was entitled to invoke Order 39 of the
Code to get an injunction order even if the conditions of Clause (b) of Section 41 were not
satisfied. We are afraid this contention cannot be accepted.Clause (a) of Section 41 makes
only the procedural rules of the CPC applicable to the proceedings in court under the
Arbitration Act. This Clause does not authorise the court to pass an order of injunction. The
power is conferred by Clause (b) of Section 41. The source of power, therefore, cannot be
traced to Clause (a). If the contention of Shri Kaicker is accepted, the appeals would lie under
Sections 96, 100 or 104 of the CPC but the Arbitration Act itself provides for appeal under
Section 39. Besides, if Clause (a) of Section 41 gave wide powers to pass an order of
injunction, Clause (b) of Section 41 would become otiose.
16. InAlopiNath and Ors. v. Collector, Varanasi40, this Court in a brief order said:We have
heard learned Counsel for the parties. The short question is as to the admissibility of the
cross-objection under the provisions of the Uttar Pradesh Nagar MahapalikaAdhiniyam, 1959
where an appeal against quantum has been filed and the respondent has not preferred an
appeal. We have looked into the provisions of Sections 377, 379 and 381 of the Act and are
inclined to take the view that the provision of Order 41 Rule 22 of the CPC would be
inconsistent with the provisions of the Act inasmuch as an appeal is admissible only by a
certificate or special leave as provided in provisions (a) and (b) respectively of Section
381(1). It is difficult to contend that a cross-objection is anything other than an appeal as
generally understood in law. In the circumstances, benefit of Section 377 or of Sub-section
(4) of Section 381 of the Act is not available. The appeal therefore fails. There is no order as
to costs.

39
AIR 1984 SC 29.
40
[1986] Supp. SCC 693.

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17. InR. Mcdill& Company Pvt. Ltd. v.Gouri Shankar Sarda and Ors.41, one of questions
before the Court was whether the provisions of Order 23 of the Code apply to an application
for stay of suit filed under Section 34 of the Act. It referred to Section 41 of the Act which
provided that provisions of the Code shall apply to all proceedings before the court subject of
course to the provisions of the Arbitration Act and of any rules made thereunder. This Court
in that case referred to a commentary by R.S. Bachawat on the Law of Arbitration wherein
the author with reference to various decisions of the High Court pointed out as to which
provisions of the Code have been held to be applicable to proceedings under the Act.
Reference was also made to some early decisions of this Court and it was held that provision;
of Order 23 of the Code were applicable in view of Section 41 of the Act.
18. InRamanbhaiAshabhai Patel v.DabhiAjitkumarFulsinji and Ors.42, the main question for
consideration before this Court was whether the appellant could be said to be guilty of a
corrupt practice as contemplated by Section 123(3) of the Representation of People Act,
1951. When counsel for the respondent referred to the finding of the High Court regarding
the validity of the second respondent's nomination paper, counsel for the appellant raised a
preliminary objection to the effect that the first respondent was not competent to challenge
the correctness of the finding as he had not preferred an appeal therefrom. In the course of
discussion in the judgment, this Court observed:Apart from that we think that while dealing
with the appeal before it this Court has the power to decide all the points arising from the
judgment appealed against and even in the absence of an express provision like Order XLI,
22 of the CPC it can devise the appropriate procedure to be adopted at the hearing. There
could be no better way of supplying the deficiency than by drawing upon the provisions of a
general law like the CPC and adopting such of those provisions as are suitable. We cannot
lose sight of the fact that normally a party in whose favour the judgment appealed from has
been given will not be granted special leave to appeal from it. Considerations of justice,
therefore, require that this Court should in appropriate cases permit a party placed in such a
position to support the judgment in his favour even upon grounds which were negatived in
that judgment.
19. Following this decision, this Court again in Bhanu Kumar Shastriv. Mohan Lal Sukhadia
and Ors.43, on the question of challenging of findings without preferring an appeal observed
that the considerations of justice required that " this Court should in appropriate cases permit

41
(1991) 2 SCC 548.
42
AIR 1965 SC 669.
43
AIR 1971 SC 2025.

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a party placed in such a position to support the judgment in his favour even upon grounds
which are negatived in that judgment.
20. However, both the above cases are not the cases where the Court was considering the
scope and substance of cross-objection.
21. We may also refer to two decisions of the High Courts -one of the Patna High Court and
the other of the Calcutta High Court. A Division Bench of the Calcutta High Court in
Ramasray Singh v. Bibhisan Sinha, was considering the objection that though statutory right
of appeal is given under Section 38(3) of the Bengal Money Lenders Act, there is no right
given to file cross-objection and that if a litigant is aggrieved by a decision of any court under
Section 38 of the said Act his remedy is to file an appeal. High Court negatived the
contention and held:It is to be observed that by Section 38, Bengal Money-Lenders Act, a
right of appeal is given in express terms. By Sub-section (3) of Section 38, a declaration
under that section is to be subject to an appeal, if any, as if it were a decree of the Court. The
right of appeal, under that section is given to an established Court, namely, the Court of the
District Judge. Nothing is stated expressly in the Sub-section as to the procedure regulating
such appeal. In our view, where nothing is stated expressly as to the procedure of an appeal
before a District Judge, the law will import that the ordinary procedure of that Court on
appeal will apply. The ordinary procedure of an appeal is that the respondent has the right to
file cross-objection and therefore it is quite clear that the respondent has the right to file a
cross-objection.
22. In Bihar State Electricity Board v.Khalsa Bros., a Division Bench of the Patna High
Court speaking through L.M. Sharma, J. (as His Lordship then was) said:The Supreme Court
cases arose under the Representation of the People Act, 1951 and the Calcutta case under the
Bengal Money Lenders Act. The observations made- in these cases support the principle
which Mr. Chatterjee is relying. So far the arbitration Act is concerned, the view in favour of
the maintainability of a cross-objection appears to be stronger inasmuch as Section 41 of the
Act says that subject to the provisions of, and the rules made under the Act, the Civil
Procedure Code shall apply to all proceedings before the court and to all appeals under the
Act. There does not appear to be any provision inconsistent with the application of the Civil
Procedure Code. The decision of the Court so far it has gone against the plaintiff-respondent
is clearly appealable under Section 39 and I therefore, hold that the cross-objection is
maintainable.

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23. While there was no provision like Section 41 of the Arbitration Act in the Bengal Money
Lenders Act in the Calcutta case. Patna case was under the Arbitration Act itself. As we will
presently see Patna case does not appear to lay good law.

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BIBLIOGRAPHY

 Sarkar, S.C., Sarkar’s The Law of Civil Procedure, Wadhwa and Company, Nagpur, 11th
Edition, 2006.
 Mulla, Sir Dindhah F., Prasad, B.M., Mohan, Manish, Mulla The Code of Civil
Procedure, LexisNexis Butterworths Wadhwa, Nagpur, 18th Edition, 2011.
 Takwani, C.K., Civil Procedure, Eastern Book Company, 6th Edition, 2011.

WEBLIOGRAPHY

 http://www.legalblog.in/2010/12/cross-objections-under-code-of-civil.html

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