SPECIAL ASSIGNMENT OF CRITICAL ESSAYS :

CIVIL PROCEDURE CODE

SUBMITTED BY :

Simran Toppo
ID No. 016/2016/1454
Semester IX, B.A. L.L.B (Hons.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

ATAL NAGAR, CHHATTISGARH
 2

SACE – I

QUESTION: Appeal is a statutory right and not a natural or inherent right. Explain the
statement with the help of relevant provision and cases.

As per the recent answer given by the Minister of Law and Justice, Shri Ravi Shankar
Prasad on September 20, 2020, these many cases are pending in the Supreme Court, High
Courts and District& Subordinate Courts1 -

It totals up to 3.9 crore cases.

Now, we can very well imagine that if Appeal will be made a natural/inherent Right, this number
will further increase to an unimaginable extent and will further overburden the Courts.

There is always a dilemma whether to consider the aspect of ‘providing complete justice’ or
whether to prevent ‘pendency’ of cases. That is why, to bring a balance between two contrasting
claims, the Parliament has given the status of ‘Statutory Right’ to Appeal.

 THE MEANING OF APPEAL

Various courts have defined Appeal in various cases.

In Attorney General V. Sillem2, the court said that – “It is a right of entering a superior court
and invoking its aid and interposition to redress an error of the court below”.
1
Parliamentary Questions, https://pqars.nic.in/annex/252/AU1381.pdf , (last visited April 15,2021)
 3

The Privy Council has also defined it in Nagendra Nath V. Suresh Chandra3 as – “It is a
complaint made to the higher court that the decree passed by the lower court is unsound and
wrong”.

Hence few things are clear that –

a) Appeal is always to a higher court

b) It acts a remedy against the error made by the lower court
 BASICS OF APPEAL UNDER CPC

Appeal under CPC can be broadly categorized under the following categories –

First Appeal
Section 96-99,
(which lies against
Order XLI
original decrees)

Second Appeal
(which lies against Section 100-103,
the decree of Order XLII
appellate court)

Kinds of Appeal
Section 104-106,
recognized under Appeal from order
Order XLIII
CPC

Appeal from
Order XLIV
indigent persons

Appeal to the Section 109-112,

Supreme Court Order XLV

 Requisites of Appeal

As basic as it seems but it needs to be written down. There are three requisites of Appeal –

i. Decree/Order
ii. An aggrieved person
iii. A reviewing body

2
(1864) 10 HLC 704 (715)
3
AIR 1932 PC 165
 4

 First Appeal

As already stated, this is dealt under Section 96-99 and Order 41.

S. 96 also allows appeal against ex-parte decree.

It also provides that the appeal against consent decree shall not be allowed. This flows from
principle of estoppel.

S. 99 provides that a decree shall not be reversed or modified if there is error/irregularity

which does not affect merits of the case or jurisdictional aspects.

 Second Appeal

S. 100 of the CPC says that second appeal lies in front of the High Court. And from the words
of the provision, it is clear that it can only lie if the High Court is satisfied that there is a
substantial question of law. This also allows appeal from ex-parte decree.

The proviso to this Section also provides that this Section shall not take away the powers of the
Court to hear any other substantial question of law which has not been formulated. However, for
this, it will have to provide reasons for it.

Section 102 provides that appeal shall not lie if the original suit is of recovery of money and the
value if not more than 25,000/-

Section 103 also gives special powers to the High Court to determine issues of fact in
exceptional circumstances.

 Appeals From Orders

This is dealt under Section 104. It provides that save as otherwise provided, appeal shall lie
against only the following orders –
 5

Order under S. 35A

Order under S. 91 or 92

Appealable Orders under

S. 104

Order under S. 95

Order under this code which

imposes fines or direct arrest
or detention in civil prison
(except when arrest/detention
is in case of execution of
decree)

S. 104(2) further provides another appeal from this shall not lie.

 Appeals to the Supreme Court

Section 109 provides that it can happen if the High Court certifies that –

a) There is an involvement of substantial question of law which is of general importance

b) If the High Court is of the opinion that it is necessary for it to be decided by the Supreme
Court

However, this is subject to Part IV, V and Rules made by the Supreme Court in this regard.

 Appeals of Indigent Persons

This is dealt under Order XLIV of CPC. As per Rule 1 of this Order, indigent person for the
purpose of this Order is the one who is unable to pay the fee of appeal. For this, that person will
have to accompany an application along with the Memorandum of Appeal and after that, the
person may be allowed to appeal as an indigent person.
 6

Rule 3 lays down a detailed procedure of inquiry to ascertain whether the person is indigent.

 Powers of the Appellate Court

This is provided under Section 107. It provides that the powers of Appellate Court shall be as
follows –

To determine the case

to its finality

Remand the case

Powers of the
Framing of issues and
Appellate Court
referring it to trial
(Section 107)

Taking of additional
evidence or require it
to be taken from some
other court

Subject to the
provisions, same
powers as the court of
original jurisdiction

 Appeal happens only of question of law

In Santanu Kumar V. Bairagi Charan Das4, the Court clearly said that appeal can only be of
question of law not of facts.

 No New Plea Allowed in Appeal

In Mohd. Abdul Razack V. Syed Meera Ummal5, it was clearly said that new plea shall not be
allowed in appeal.

The above two points are general rule. Exceptions can be found under various provisions.

4
AIR 1995 Ori 300
5
AIR 1976 Mad 212
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 APPEAL IS A STATUTORY RIGHT AND NOT A NATURAL/INHERENT RIGHT

It has become an established principle in law that Appeal is only a statutory right and not an
inherent/natural right.

In Oriental Bank of Commerce V. R.K. Uppal6, the Supreme Court clearly said that “Right to
appeal is not an inherent right…The extent of power of an appellate forum and the mode and
manner of its exercise can always be provided in the provision that creates such right”.

In M/S Super Cassettes Industries Ltd. V. State of UP7, it was said by the Supreme Court that –
“It is well known that Right of Appeal is not a natural or inherent right. It cannot be assumed to
exist unless expressly provided for by statute. Being a creature of Statute, remedy of appeal must
be legitimately traceable to the statutory provisions”.

Justice Khanna also pointed out this in Anant Mills Co. Ltd. V. State of Gujarat8 - “It is well
settled by several decisions of this court that the rights of appeal is a creature of a statute…”

Also, in Garikapati V. Subbiah Choudhary9, the Supreme Court said that – Right to appeal is a
vested right”. This clearly implies that it is not inherent.

 Right to Suit is a Natural/Inherent Right, not the Right to Appeal

This was clearly said by Chandrachud J. in Ganga Bai V. Vijay Kumar10 - “There is a basic
distinction between the right of suit and the right of appeal. There is an inherent right in every
person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one’s
peril, bring a suit of one’s choice. It is no answer to a suit howsoever frivolous the claim, that
the law confers no right to sue. A suit for its maintainability requires no authority of law and it
is enough that no statute bars the suit. But the position in regard to appeals is quite the
opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability
must have the clear authority of law”.

6
Civil Appeal No. 128 of 2007
7
CIVIL APPEAL NO. 3058 OF 2008
8
AIR 1975 SC 1234
9
AIR 1957 SC 540
10
AIR 1974 SC 1126
 8

Also, in Dayawati V. Inderjit11, the Supreme Court pointed out another difference between the
Right to Suit and Right to Appeal – “The only difference between a suit and an appeal is that an
appeal only reviews and corrects the proceeding in a cause already constituted but does not
create the cause”.

 Article 21 or 14 are not violated if the Parliament bars Right to Appeal

In Oriental Bank of Commerce V. R.K. Uppal12, the Supreme Court said that – “None of the
facets of natural justice requires that there should be right of appeal from any decision”.

In 2012 Judgment of Bombay High Court delivered by Justice Abhay Oka and Justice
Sadhana Jadhav13, the court said that – “The legislature can confer the said right or can make
available the said right conditionally. It (legislature) may withdraw the said right by amending
the statute which confers the right of appeal….. a legislation cannot be struck down on the
ground that there is a violation of Article 21 as a result of failure to provide for an Appeal
against a conviction”.

 Statutory Right to Appeal does not mean Right to choose a forum also

In Gopal Krishna V. Meenakshi14, the Court said – “the right to appeal is undoubtedly a
substantive right…but there is no vested rights in procedure. Hence, no one can claim that one’s
appeal should be heard by a particular court. Change in forum of appeal, therefore, cannot be
said to cause prejudice to a party”.

 CONCLUSION
Hence, it is clear from all these provisions and case laws that Appeal is a statutory Right not an
inherent Right. It is the Right to Suit which is inherent, not the Right to Appeal. This has been
affirmed in n number of judgments. The reading of provisions relating to appeal also show that it
happens only in the circumstances which has been mentioned specifically.

11
AIR 1996 SC 1423
12
Supra
13
PTI, Accused has no inherent right to appeal against conviction: HC, DNA (November 29, 2021, 8:56pm)
https://www.dnaindia.com/mumbai/report-accused-has-no-inherent-right-to-appeal-against-conviction-hc-
1763756
14
AIR 1967 SC 155
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SACE – II

Question: Attachment of property is a very harsh step to be taken against the judgement debtor.
Do you agree with the statement? Comment on the relevant provisions. Substantiate your answer
with suitable case law.

Majority of people think that pronouncing a judgment is a tough part. However, the execution of
decree is even tougher.

In the execution part, the outcome of adjudication is set into action and therefore it is called
‘execution’.

Section 51 of the CPC provides for five modes such as – Appointment of Receiver; Delivery of
property specifically decreed etc. And one of them is – ‘Attachment and sale or the sale without
attachment of any property’.

However, this is a very harsh step taken against a judgment debtor because property is very
personal and sensitive to people. So, many a times, a person may be happily willing to go to jail
but will not want attachment of its property.

 MEANING OF ATTACHMENT

Attachment has not been defined under the Civil Procedure Code. However, it has been defined
under Section 2(1)(d) of the Prevention of Money Laundering Act, 2002. It defines it as –
“Prohibition of transfer, conversion, disposition or movement of property…”

 OBJECTIVES OF ATTACHING PROPERTY

In District Magistrate and Anr. V. Naga Baba Mahant Amar Das Chela15, the Patna High
Court explained that purpose of attaching property. It said – “The purpose of attachment by civil
court under the Code of Civil Procedure is a preliminary step to be taken to make the properties
available for sale for satisfaction of the decree”.

15
1993(1)BLJR 196
 10

Thus basically, the purpose of attachment is only to secure the property from alienation.

 PROVISIONS IN CPC

The provisions which relates to Attachment are – Section 51, Section 60-64, Order 21 Rule
41-57 of CPC.

Section 51 provides for various modes by which a court can execute a decree. These are as
follows –

Delivery of any
property
specifically
decreed

Attachment and Sale or

the Sale without
attachment of any
property

Modes of
Execution Arrest and
(Section 51) detention in Prison

Appointment of
Receiver

Such other manner

as is required by
the nature of relief

Also, it was held in Yashpal Singh V. ADJ16, that the executing court has the power to mould
the relief granted to the plaintiff in accordance with the changed circumstances.

In Gudiwala Munemma V. Jawardhal [2007 (2) ALT 8], the Andhra Pradesh High Court said
that – “the decree holder can choose any mode of execution of the decree available under the
Code, the executing Court cannot insist upon him to follow a particular mode”.

16
(1992) 2 SCC 504
 11

Also, in M.A.A. Raoof V. K.G. Lakshmipathi17, the Madras High Court said that – “It is
immaterial that the place of business of judgment debtor is outside the jurisdiction of the court”.

 What can be attached

Section 60(1) states various things which can be attached.

Lands, Houses or Other

Buildings

Goods

Money, Bank-notes, Cheques,

Things liable to be
Bills of Exchange, Hundis,
attached [Section
Promissory Notes, Government
60(1)]
Securities, Bonds

Other Securuties for

Money, Debts, Shares in
a Corporation

Except otherwise
provided - all saleable
property of judgment-
debtor (be it movable or
immovable)

 What cannot be attached

Apart from the things which can be attached, Section 60(1) also provides for things which
cannot be attached.

It contains so many things but for the sake of conciseness, only have been mentioned. These
are as follows –

17
AIR 1969 Mad 268
 12

- Items of necessities – like wearing apparel, vessels of cooking, bed and its bedding, personal
ornaments which are necessary to be worn by religious indicts.
- Tools of Artisan – which will also include things like cattle, seed-grain etc., to the extent that
it is necessary for him for his livelihood (if judgment debtor is an agriculturist)
- Pensions – This includes Government pensions, service family pension and political pensions
- If the judgment debtor is also obeying the decree of Maintenance – Then, his one-third
salary will be exempted from attachment.
- money which he pays under an life insurance policy
- Any allowance which has been exempted from attachment, by law

There are various other exemptions but those have not been mentioned.

In Balavenkatagari Rama Muni Reddy V. K. Fakruddin18, the Andhra Pradesh High Court said
that – “The amounts payable in relation to the matters mentioned in clauses (g, h, I, Ia, j, l and
o) are exempt from attachment”.

While talking about exemption, we must also talk about Partial Exemption provided under
Section 61 of the CPC. It empowers the State Government to exempt portion of agricultural
produce as it thinks necessary for due cultivation and for support of judgment debtor, until next
harvest

 What happens if property is attached in the execution of decrees of several courts

Section 63 provides that in this case, the court of highest shall be prioritized and if there is no
different between the grades of the court, then the court who has attached the property first shall
be prioritized.

 Alienation of Property after attachment : Void

Section 64 provides that if, after attachment, the property has been alienated, it shall be void.
However, if alienation is in pursuance of a contract entered before the attachment, it shall be
valid.

18
Civil Revision Petition No. 3532 of 2015
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 Attachment in Case of decree for rent or mesne profits or other matter

As per Order XXI, Rule 42, attachment may be done before the amount due from him has been
ascertained.

 Attachment of movable property(apart from agricultural produce)

As per Order XXI, Rule 43, in this case, attachment shall be done by actual seizure and the
officer who is attaching will keep it in his own custody or in his subordinate’s custody.

It also provides that if it subject to speedy decay or the expenditure required to keep it will
exceed its value, the officer may sell it once.

 Attachment of Agricultural Produce

As per Order XXI, Rule 44, it will be done by affixing a copy of warrant of attachment.
Where this warrant will be attached shall depend upon circumstances. For e.g. If that agricultural
produce is a growing crop, affixation shall be done on land.

 Attachment of debt, share and other property which is not in possession of judgment-
debtor

As per Order XXI, Rule 46, it shall be done by a written order prohibiting certain things such
as transfer, fixing limits etc. Then, it will be affixed in some conscious part of court-house and
another copy shall be sent to the one who is having possession.

 Attachment of Share in movables

As per Order XXI, Rule 47, it shall be done by issuing notice to the judgment-debtor
prohibiting him from transferring his share or interest in any way.

 Attachment of Salary or Allowances of Servant of Government or Railway Company or

Local Authority

As per Order XXI, Rule 48, this may be done via an order that the amount will be withheld
from salary or allowance. However, this shall be subject to section 60.
 14

In Shriram Chits Pvt. Ltd., Tirupati Branch V. Govinda Swamy19, the Andhra Pradesh High
Court said – “Order XXI Rule 48 of CPC clearly empowers the Court to attach the salary or
allowances of a Government servant, whether the judgment-debtor or the Disbursing Officer is
or is not within the local limits of the jurisdiction of the Court and the only limitation is that it
should be done subject to the provisions of Section 60 of CPC”.

Not only that, in Nagarjuna Grameena Bank V. Medi Narayana20 and also in D. Anasuya V.
Melichavaru Rajeswara Rao21, in the former, the Supreme Court dealt with the situation where
the property is in Scheduled Areas. It said – “If cause of action arose in the schedule area, As
such, as the decree as well as salary attachment warrant are null and void without jurisdiction”.

 Attachment of Salary or Allowances of Private Employees

This Rule (Article 48A) applies to those who are not covered under Rule 48. In this also,
subject to Section 60, this may be done via an order that the amount will be withheld from
salary or allowance.

 Attachment of Partnership Property

As per Order XXI Rule 49, save as otherwise provided, the partnership property will not be
attached unless a decree has been passed against the firm or partners of that firm.

The court may attach property in the same decree or a subsequent decree; appoint a receiver;
direct accounts and inquiries and make an order for sale or any other appropriate order.

 Attachment of Negotiable Instrument

In Shyam Singh V. Collector, District Hamirpur, U.P.22, the crux of this order was explained as
- As per Order XXI Rule 51, the attachment shall be made by actual seizure and shall be
brought to the Court and it shall be made subject to the Court until the subsequent order.

19
2011 (3) AL T 528
20
Civil Appeal No. 5030-5036 of 2004
21
2014 1 ALD 555
22
1993 Supp1 SCC 693
 15

 Attachment of Property in custody of Court or Public Officer

As per Order XXI, Rule 52, the attachment shall be done by notice to such Court or Officer. In
this, request shall be made that such property/interest/dividend be subject to further orders of the
Court.

 Attachment of Immovable Property

As per Order XXI, Rule 54, the attachment in this case shall be made via an order, which will
prohibit the judgment-debtor’s power to transfer or charge the property in any way, whatsoever.
After that, necessary formalities will be completed such as – affixation of notice in conspicuous
part of the Court house, Collector’s house etc.

 Removal of Attachment after Satisfaction of Decree

Order XXI, Rule 55 provides that the attachment shall be deemed to be withdrawn in following
cases –

a) All charges and expenses arising out of that attachment has been paid to the court
b) Satisfaction of the decree has been done otherwise
c) Decree is set aside or has been reversed

 Attachment does not take away ownership of the judgment debtor from the property

In Balkrishan Gupta V. Swadeshi Polytex Ltd.23, the Apex Court explained that – “Until such
sale is effected, all other rights of the judgment debtor remain unaffected even if the shares
may have been seized by the officer of the court under Rule 43 of Order XXI of the CPC, for the
purpose of effecting the attachment…”

Hence, it is clear from this case that the attachment does not take away the ownership of the
Judgment debtor from the property. It only happens after the sale after attachment.

23
AIR 1985 SC 520
 16

In this regard even Allahabad High Court had also pronounced a judgment – Chandra Deo
Pandey V. Sheo Das Pandey24. It said – “While the property is under attachment, the suit for
declaration of title is maintainable and such a suit is not hit by proviso to Section 42 of the
Specific Relief Act, 1877”.

 CONCLUSION

From the above mentioned judgments and provisions, we can clearly see that attachment is a
very harsh step taken against a judgment debtor. It is harsh because of the following things –

i) It ultimately results in sale of property

ii) It does not take away the ownership from judgment debtor but technically strips him off
of majority of rights of the owner

However, its harshness has been minimized to a great extent. This is evident from the fact
that CPC - provides for various things which cannot be attached (Section 60); very just and fair
procedure has been provided for Seizure of the property(Section 62) and Attachment is
reversible if conditions are fulfilled (Order XXI, Rule 55).

This proves that even though attachment is a very harsh step against judgment debtor, its
harshness has been minimized to a great extent by the provisions under CPC.

24
AIR 1977 All 319
 17

REFERENCES

 Textbooks
1. CK TAKWANI, CIVIL PROCEDURE, (EBC 2020)
2. M.P JAIN, INDIAN CONSTITUTIONAL LAW, (Lexis Nexis 2019)
 Research Papers
1. G.SUDARSHAN, II Additional District Judge, Jagtial, Karimnagar District, Attachment of
Property in Execution of Decree,
https://districts.ecourts.gov.in/sites/default/files/sudershan%20ATTACHMENT%20OF%20P
ROPERTY%20IN%20DECREE.pdf , (Last Visited December 15, 2021)
 Articles
1. Vasudha Tamrakar & Garima Tiwari, Appeals - Section 96 of Code of Civil Procedure -
Appeal From Original Decrees, LEGAL SERVICES INDIA, (December 16, 2021, 8:34pm)

https://www.legalserviceindia.com/article/l63-Appeals.html

2. Shruti Singh, Attachment of Property: interesting facts you must know about, IPLEADERS,
(December 14, 2021, 6:22pm)

https://blog.ipleaders.in/attachment-of-property-interesting-facts-you-must-know-about/

3. Sanjeev Kumar Choudhary, Appeal and Right to Appeal : A Basic Understanding,

LAWYERS CLUB INDIA, (December 15, 2021, 8:22pm)

https://www.lawyersclubindia.com/articles/appeal-and-right-to-appeal-a-basic-understanding-
6638.asp

4. Ashi Kaim, All about Appeals under the Code of Civil Procedure, LATEST LAWS,
(December 17, 2021, 7:11pm)

https://www.latestlaws.com/articles/all-about-appeals-under-the-code-of-civil-procedure
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 Website
1. CHANDIGARH JUDICIAL ACADEMY, http://cja.gov.in/data/Executions.pdf , (Last
Visited December 14, 2021)