UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY, CHANDIGARH

APPEALS UNDER CIVIL PROCEDURE CODE

SUBMITTED TO: DR. KARAN JAWANDA

SEMESTER: 8th
SECTION: C
ROLL NO: 159
 INTRODUCTION

Any person who feels aggrieved by any decree or order of the court may prefer an appeal in the superior court if
the appeal is provided against that decree or order. A right to appeal is not a natural or an inherent right. An
appeal is a creature of the statute and there is no right of appeal unless it is given clearly and in express terms. It
is a vested right and accrues to the litigant and exists as on and from the date the lis commences.

The expression “appeal” has not been defined in the code, but it may be defined as the judicial examination of
the decision by a higher court of the decision of an inferior court[1]. It means removal of a cause from an
inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is thus
a remedy provided by law for getting the decree of the lower court set aside. In other words, it is a complaint
made to the higher court that the decree passed by the lower court is unsound and wrong. The right to appeal
must, at this juncture, be compared and distinguished from a right to file a suit. As said, the right to appeal is a
statutory right and any such right must have the express authority of a law. The right to sue or to file a suit is,
however, an inherent right and no express authorization from any statute may be required to institute a suit. It is
enough that no statute expressly bars the institution of such suit.

Under the Code of Civil Procedure, the following are the provisions relating to the right of appeal:
1. Sections 96-112 and Orders 41 to 45.
2. First appeals : Ss. 96-99A, 107 and Order 41.
3. Second Appeals : Ss. 100-103, 108 and Order 42.
4. Appeals from orders : Ss. 104, 108 and Order 43.
5. Appeals to the Supreme Court : Sections 109 and Order 45.
6. Appeals by indigent people : Order 44.

It is in the background information provided here that the aspect of an appeal being a continuation of the suit
will be examined.

PROCEDURE RELATED TO APPEALS.

The appeal being the continuation of the suit is held not without any reason; it may be examined in the light of
the following propositions:
1. The appellate court has all the powers and has to do all those things necessary that a trial court has and
has to do. In this sense, even when the case goes on appeal, it is just the name that has undergone a
change; the form and substance still remain the same.
2. In the same vein as above, the appellate court has to do all that has been done by the trail court in that
particular case, and then either agree or disagree from the trial court.
3. Hence, even the appellate court has to write a judgement and pass a decree. In the event of the court
upholding the lower court’s decision, the appellate court may write down the same decree, without
changing it, and the decree will now be deemed to have been that of the appellate court.
4. Finally, the suit is not deemed to be “finally concluded” for matters of res judicata till the appeals are
over. This implies that it is deemed that the same suit is progress even while the appeals are on. It is only
 when the courts have finally come to a conclusion, after all possible appeals have been used and tried by
the appellant, that the suit is said to have been conclusively decided.

The above said propositions point out, in essence, what is implied when it is said that the appeal is a
continuation of the suit. The various provisions relating to the appeals have already been stated in the
introduction to this work. A detailed look into these provisions at this juncture becomes pertinent.

FIRST APPEALS

As already stated in the introduction, the provisions relating to the first appeals are sections 96-99A, 107 and
order 41. Section 96 of the code recognizes the right to appeal from every decree passed by any court of
original jurisdiction. It does not enumerate the persons capable of appealing. Two conditions have to be fulfilled
before an appeal may be filed under this section :
1. The subject matter of an appeal is always a decree; an appeal is allowed only after a decree has been
passed, which implies the conclusive determination of the suit.
2. The party appealing must have been adversely affected by such determination.

The ordinary rule is that only a party to a suit adversely affected to by the decree or any of his representatives in
interest may file an appeal. But a person who is not a party to the suit may file an appeal, only if the court has
granted special leave, provided that he is either bound by the decree or order or is aggrieved by it or is
prejudicially affected by it. The case of Adi Pherozshah v. H.M. Seervai1, the court observed that the test to see
whether a person is aggrieved or not is to see whether he has a genuine grievance because an order has been
made which prejudicially affects his interests either pecuniary or otherwise. Similarly, a person who has waived
his right to appeal or agrees not to appeal loses his right to appeal. The right to appeal is also lost if the court to
which the appeal lies is abolished and no court is substituted in it’s place.

Section 96(2) provides for an aggrieved party against whom an ex parte decree has been passed to file an appeal
against such decree. Under clause 3 of the section, an appeal against a consent decree has been prohibited, and
very justifiably so for obvious reason. A final decree owes its origin to the preliminary decree2, therefore a
failure to appeal against a preliminary decree precludes a person for filing an appeal against the final decree3.

As stated above, sections 96-99A enact the substantive law as regards First Appeals, while order 41 lays down
the procedure relating to thereto. The expressions appeals and memorandum of appeal denote two different
things. The appeal is the judicial examination by a higher court of the decision of the inferior court. The
memorandum of appeal contains the grounds on which the judicial examination is invited. The order lays down
the requirements that have to be complied with for validly presenting an appeal4.

1 AIR 1971 SC 385.

2 Supra n 1, at 265.

3 Section 97 of the C.P.C.

4 Order 41, r. 1.
Rule 2 precludes the appellant to urge, except with the leave of the court, any grounds of objection not set forth
in the memorandum of appeal. Where the memorandum of appeal is not in the proper form, the court may reject
it or return to the appellant for the purpose of making amendments5. Under the provision of Rule 3A, where an
appeal has been presented after the expiry of the period of limitation specified therefor, it should be
accompanied by an application that the applicant had sufficient cause for not preferring an appeal within the
said time. This rule was inserted during the 1976 Amendment Act to give effect to the recommendation of the
Privy Council6.

Rule 5 provides for the stay of execution of decree or order. After an appeal has been filed, the appellate court
may order stay of proceedings under the deree or execution of such decree. But mere filing of an appeal does
not suspend the operation of the decree; the following grounds must be satisfied before the court may grant a
stay :
1. the application has been made without any unreasonable delay,
2. substantial loss will result to the applicant unless such order is made, and
3. security for the due performance of the decree or order has been given by the applicant.

Rule 11 deals with the power of the appellate court to summarily dismiss an appeal. This rule embodies a
general principle that whenever an appeal is preferred, the appellate court is entitled to reject the appeal
summarily, after hearing the appellant, if no prima facie substance exists. Where an appeal raises triable, it
should not summarily dismiss the suit. A case on this aspect is Mahadev Tukaram v. Smt Sugandha7. In this
case, a will was executed by an old man of 80 years. Although he was literate, the will bore his thumb
impression and not his signature. No other document bearing his thumb impression was produced to support the
reason that thumb impression was taken because his hand was shaky. Out of the six attesting witnesses, only two
were examined. The evidence of the doctor was also not convincing. The trial court held the will as genuine and
the matter on appeal to the High Court was dismissed summarily. On second appeal the court held that the High
Court was not justified in dismissing the appeal summarily, since the first appeal had triable issues.

Rule 16 says that the appellant has the right to begin, just like in the case of an original suit wherein the plaintiff
has the right to begin. If the appeal is not dismissed summarily, then the court shall hear the respondent against
the appeal and the appellant then be entitled to reply. Like in the case of the original suit, if the plaintiff does not
appear for the hearing, the case may be dismissed, so is the case during the appeal too. If the appellant does not
appear when the appeal is called for hearing, the court may dismiss the appeal in default8. The same result
ensues in the case of the non-payment of the process fee by the appellant, similar to that of the situation of the
original suit. Under rule 19, the appeal may be restored after being dismissed if the appellant files for such
action and shows sufficient cause.

5 Order 41, r. 3.

6 Statement of Objects and reasons.

8 Rule 17(1).
As is the case with the original suit, if the respondent does not appear but the appellant does, the court may
proceed ex-parte9. If the case goes in the favour of the appellant, the respondent may apply for the rehearing of
the appeal. If he is able to satisfy the court that he had sufficient cause for not having appeared for the scheduled
hearing, the court may accept the application10. However, ordinarily the court should not pass an ex-parte decree
except on reliable evidence.

Again, as in the case of the original suit, where joinder of parties is allowed, so in the case of an appeal
respondents may be added under the provisions of rule 20. Where it appears to the appellate court at the hearing
of the of the appeal that any person who was a party to the suit in the trial court 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 of the appeal and
direct such person be joined as a respondent. The object of this rule 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.

Section 107 and rules 23-29 and 33 of the order 41 specify the powers of the appellate court while hearing
first appeals. Section 107(1)(a) and rule 24 enables the court to dispose off a case finally. The general rule is
that the case should, as far as possible, be disposed of on the evidence on record and should not be remanded for
fresh evidence. Where the lower court has omitted to frame any issues, or to try any issue or to determine any
question of fact which may be essential to the right decision of the suit upon merits, the appellate court may
frame issues and refer them for trial to the lower court and shall direct that lower court to take the additional
evidence required. The lower court shall try such issues and shall return the findings and the evidence to the
appellate court within the time fixed by the higher court.
Section 107(1)(b) and Rule 23 and 23A talk about the remand of the suit. Remand means to send back. Where
the trial court has decided a suit on a preliminary point without recording the findings on other issues and if the
appellate court reverses the decree so passed, it may send back the case to the trial court to decide other issues
and determine the suit. This is called remand. By passing an order of remand, the appellate court directs the trial
court to reopen and retry the case. The case of Kalipad Dinda v. Kartick Chandra11, the court observed that the
order for a remand can be made only if the following conditions are satisfied:

Þ The suit must have been disposed of by the trial court on a preliminary point. A point may be called a
preliminary point if it is such that the decision thereon in a particular way is sufficient to dispose of the whole
case, without the necessity for a decision on the other points. Preliminary points may be questions of limitation
or res judicata.

Þ The decree must have been reversed under the appeal.

Þ Other grounds available under Rule 23A.

In this case, suit for declaration of title was dismissed by the trial court, which disbelieved the evidence. In
appeal, the court passed an order for remand for the trial court to rehear the suit giving opportunity to the parties
to adduce fresh evidence. Against this order of remand, the defendant filed a revision under Section 115. The

9 Rule 17(2).
10 Rule 21.
11 AIR 1977 Cal 3.
preliminary objection was raised as to the maintainability of the revision application on the ground that the
appeal ought to have been filed against the order passed by the appellate court. The court held that the revision
application is maintainable since the remand was made under the inherent powers of the court under Section 151
of the code, and not under Order 41, rule 23. Hence, for this kind of an order, only revision is allowed and not
an appeal.

As a general rule, the appellate court shall decide an appeal on the evidence lead by the parties before the trial
court and should not admit additional evidence for the purpose of the disposal of the suit. Section 107(1)(d),
however, empowers an appellate court to take additional evidence to require such evidence to be taken subject
to the conditions laid down in Rule 27 of the Order 41. They are as follows:
1. Where the lower court has improperly refused to admit evidence which ought to have been admitted,
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 require such evidence to pronounce judgment or for any other substantial
cause.
A very important provision is Section 107(2) of the Code, which says that apart from the over and aforesaid
powers, an appellate court has the same powers as an original court. This provision is based on the general
principle that an appeal is continuation of a suit and therefore, an appellate court can do, while the appeal is
pending, what the original court could have done while the suit is pending. This aspect has been looked into in
the leading case of Praduman Kumar v. Virendra12. The facts of the case were as follows.

The respondent in this case obtained permanent tenancy rights from the appellant in a piece of land. Later the
respondent transferred his tenancy rights to another person. Upon the non payment of the rent for 2 years, the
appellant, the owner of the land, filed a suit for a decree for ejectment and for the recovery of the arrears in rent
in the court of the City Munsiff. The respondents prayed that they should be given relief against the forfeiture of
their tenancy rights under Section 114 of the Transfer of Property Act. The trial judge held that the conditions
relating to deposits in the Court of rent of arrears, interest thereon, and costs of the suit were not complied with
and decreed the plaintiff’s claim. In appeal to the District court, the tenant offered to clear all the possible dues
and the costs. The court held that since the tenant was willing to pay the amount, he should be given the benefit
of Section 114.

The second appeal to the case was summarily dismissed by the High Court. The case went on to appeal to the
Supreme Court. The appellant contested that the court having the jurisdiction to grant reprieve against the
forfeiture lies with the court of the first instance and the second, that the Trial court having given the tenants the
opportunity to pay all the amounts, it was beyond the power of the appellate court to give a second opportunity
to them.

The Supreme Court negativing this contention held that there is no bar to the jurisdiction of the appellate court
in deciding the matter as it did, and hence the appeal was dismissed. It was observed that the appellate court has
all the powers as the trial court in deciding the matter conclusively.

12 AIR 1969 SC 1349

The preceding part of this chapter dealt with the provisions of the code, which deal with the first appeals. First
appeals are the appeals that go from the court where the original suit was first filed and the decree passed. If
either of the parties to the first appeal is not satisfied even with the decree of the court of first appeal, they may
prefer second appeal to the appropriate court. This then becomes the second appeal of the suit. Order 42 of the
code deals with the provision relating to the second appeal. The provision provided for is very simply put in the
code, holding that all the provisions that apply to the first appeal, so far as may be required, be applicable to the
second appeal too.

However, Section 100 of the code, dealing with the substantive part of the code, holds that the court of second
appeal may take up a case on second appeal only on a question of law. Any question of fact may not form part of
the inquiry of the court. In the case of Durga Chowdharani v. Jawahir Singh13, the court had observed that
there is no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact, however gross
the error may seem to be.

In this case the appellant, widow of a certain person, filed a suit against the elder brother of her late husband to
have a decree passed in her favour declaring her to be the heiress to her husbands property, which was being
claimed by the elder brother, the respondent. The appellant’s right to the property depended upon her proving
the fact that there had been a partition of the family property and therefore, the elder brother had no claim to it.
The respondent contested this claim. The appellant tried to argue that the lower courts had not looked into the
available evidence properly, and hence it amounted to defect in the procedure of law, therefore appealable to the
higher court in the second appeal. The court in this case held that an erroneous finding of the facts is a different
thing from an error or defect in the procedure. This implies that however gross the defect might be in the finding
of the facts, it cannot be construed as compelling the court of second appeal to deal with a question of fact.
Accordingly, the appeal in this case was dismissed.

Section 103 of the code provides that the High Court may, if the evidence on record is sufficient, determine any
question of fact necessary for the disposal of the appeal, provided that the matter had not been determined by the
lower appellate court or which has been wrongly determined by such court by reason of any illegality, omission,
error or defect such as is referred to in sub-section (1) of section 10014. However, this section does not empower
the High Court to frame questions of facts on issues that had not been raised at all in the lower Court.

Section 102 of the code says that no appeals are allowed from any suit of the nature cognisable by Courts of
Small Causes, when the amount or value of the of the subject matter of the original suit does not exceed Rs.
Three thousand. Effectively, this section bars second appeals from what may be called “petty” cases. The bar
operates if two conditions are satisfied: I. The suit was cognisable by a court of small causes;

II. The amount of the subject matter does not exceed three thousand rupees.

Thus, a double test has to be satisfied; the nature of the controversy and the value of the suit.

13

14 Sec on 103.
ti
APPEALS FROM ORDERS

SECTIONS 104 to 108 and Order 43 provides for appeals against orders. They state that certain orders are
appealable and other orders are not appealable. But it is possible to attack such orders in an appeal against the
final decree. These sections also provide the forum for an appeal. Order can be defined as "the formal
expression of any decision of a civil court which is not a decree" Therefore, an adjudication by a court that does
not come under a "decree" is an "order". An appeal of an order can be filed within ninety days before the High
Court and within thirty days from the date of the order, before another court. SECTION 106 states that appeals
against orders in cases in which they are appealable shall be brought before the court to where an appeal would
lie from the original suit.

Some of the instances of appealable orders are-

1. An order awarding compensatory costs in respect of false or vexatious claims or defence.

2. An order refusing leave to institute a suit against public nuisance.

3. An order rejecting an application to set aside the dismissal of a suit for default.

4. An order rejecting an application to set aside an ex parte decree.

5. An order dismissing a suit or striking out defense for non- compliance with an order for discovery.

6. An order granting or refusing to grant interim injunction.

7. An order refusing to restore an appeal dismissed for default of appearance by appellant.

8. An order refusing to rehear an appeal heard ex parte.

9. An order of remand.

10. An order granting an application for review

OTHER ORDERS

Section 105 enacts that every order whether appealable or not, except an order of remand, can be attacked in an
appeal from the final decree on the ground that there is an error, defect or irregularity in the order and that such
error, defect or irregularity affects the decision of the case. The principle underlying Section 105 is that when an
interlocutory order is appealable, the party against whom such order is made is not bound to prefer an appeal
against it. There is no such law which compels a party to appeal from every interlocutory order by which he
may feel affected. Section 105 makes it clear that an order appealable under Section 104 may be questioned
under this section in an appeal from the decree in the suit, even though no appeal has been preferred against the
interlocutory order.
ORDER WITH SUITS BY INDIGENT PERSONS.

Order 44 deals with appeals made by indigent persons. Any person entitled to file an appeal who is unable to
pay the court fee needed for the memorandum of appeal must file an appeal followed by a memorandum of
appeal and then the Court may permit him to appeal as an indigent person. The present situation is that, on all
the grounds applicable to an ordinary citizen, an indigent person can also file an appeal. Also, an indigent
individual can file cross-objections.

Rule 3 states that if the appellant has been permitted to sue in the trial court as an indigent party, no further
investigation is required if the appellant files an affidavit claiming that he has not ceased to be an indigent
person since the date of the appeal of the decree. . Where the appellant is said to have been an indigent person
after the date of the decree of appeal, the appellant's inquiry shall be carried out by the appellate court or, on its
request, by the officer of that court. The question to be considered by the court at the point of hearing an appeal
is whether the applicant is an indigent citizen.

The appeal will be allowed, if he is indigent, and the memorandum of appeal will be registered. If he is not
indigent, the appeal would be denied. The period of limitation for presenting an application for leave to appeal
as an indigent person is sixty days (High Court) and to other courts it is thirty days. The limitation starts from
the date the decree is appealed from.

GENERAL APPEALS TO THE SUPREME COURT

General appeals to the Supreme Court are laid down under provisions of Articles 132, 133 and 134A of the
Constitution of India with regard to civil matters. An appeal shall lie to the Supreme Court from any judgment,
decree or final order in a civil proceeding of a High Court, if the High Court certifies that—

The case involves a substantial question of law of general importance; and In the opinion of the High Court the
said question needs to be decided by the Supreme Court.

CONDITIONS

Under Section 109 of the Code, an appeal would lie to the Supreme Court only if the following conditions are
satisfied-

Judgment, decree or final order- An appeal lies before the Supreme Court only against the High Court's
decision, decree or final order. A verdict, decision or final ruling to which an appeal can be brought before the
Supreme Court must be one aimed at bringing the dispute between the parties to an end. In respect of an
interlocutory order, no certificate can be granted. The test whether the order is final or not will not depend on
whether the controversy is finally over, but whether the controversy raised before the High Court is finally over
or not.

Substantial question of law of general importance- If the High Court certifies that the dispute concerns a
substantial question of law of general significance, an appeal will fall to the Supreme Court. The substantive
question of law must be such that the general public, aside from the parties to the case, should be involved in the
Supreme Court's resolution of the question, i.e. that it will influence a significant number of people or a number
of cases concerning the same matter.

Need to be decided by Supreme Court- The High Court must take the view that the Supreme Court has to
decide such a matter. There has to be a necessity for a Supreme Court ruling on the subject, and the need could
be seen to exist where, for example, two viewpoints on the issue are available and the High Court takes one
view of the views referred to. Such a necessity may also be said to occur where another High Court has held a
different opinion.

CONCLUSION.

The preceding sections showed that the courts have wide ranging powers in matters of appeal cases. This is
specially the case of the first appeals, where the courts have almost identical powers as that of the court of
original trial jurisdiction. As mentioned above, section 107 of the code recognises the principle that an appeal is,
in effect, a continuation of the suit. It would be pertinent to have a recapitulation of the main propositions upon
which such a principle finds basis. They are:
1. The appellate court has all the powers and has to do all those things necessary that a trial court has and
has to do. In this sense, even when the case goes on appeal, it is just the name that has undergone a
change; the form and substance still remain the same.
2. In the same vein as above, the appellate court has to do all that has been done by the trail court in that
particular case, and then either agree or disagree from the trial court.
3. Hence, even the appellate court has to write a judgement and pass a decree. In the event of the court
upholding the lower court’s decision, the appellate court may write down the same decree, without
changing it, and the decree will now be deemed to have been that of the appellate court.

The above three propositions have been dealt with in details in the forgoing sections and hence do need any
further elucidation.

The important point to bear in mind when it comes to making a statement to the effect that an appeal is a
continuation of the suit, is that it is more in the interest of justice and adherence to the principles of fair trial that
these provisions ought to be seen. No doubt that the right to appeal is not an inherent right and has to be
mandated by the law, yet it is not that a very technical and mechanical view has to be taken into account.
BIBLIOGRAPHY

• C.K.Takwani, Civil Procedure (3rd ed., Lucknow: Eastern Book Company, 1996)
• D.V.Chitaly, AIR Commentaries: The Code of Civil Procedure (Nagpur: All India Reporter Limited,
1972).
• M.S.Mehta, A Commentary on The Code of Civil Procedure (Allahabad: Wadhwa and Company, 1990).
• P.M.Bakshi, Supplement to Mulla’s Code of Civil Procedure (14th ed., Bombay: N.M.Tripati Private
Limited, 1992).
• T.L.Venkatarama Ayiar, Mulla on The Code of Civil Procedure (13th ed., Bombay: N.M.Tripathi Private
Limited, 1967).