Unit-4(APPEALS)

Meaning of appeal
The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law
Dictionary, while construing the concept of ‘appeal’ in its most original and
natural sense, explains it as “the complaint to a superior court for an injustice
done or error committed by an inferior one, whose judgment or decision the
Court above is called upon to correct or reverse. It is the removal of a cause
from a Court of inferior jurisdiction to one of superior jurisdiction, for the
purpose of obtaining a review and retrial”.

Essentials of appealing cases

1. A decree passed by a judicial/administrative authority;
2. An aggrieved person, not necessarily a party to the original proceeding;
and
3. A reviewing body instituted for the purposes of entertaining such
appeals.
The Supreme Court in Anant Mills Co. Ltd. v. State of Gujarat(1973) have
iterated that the “right of appeal is a creature of statute and there is no reason
why the legislature, while granting the right, cannot impose conditions for the
exercise of such right so long as the conditions are not so onerous as to amount
to unreasonable restrictions rendering the right almost illusory”.

1.Section 96 Appeal from original decree (also known as 1st Appeal)

(1)An appeal shall lie from every decree passed by any Court exercising original
jurisdiction to the Court authorized to hear appeals from the decisions of such
Court.
(2) An appeal may lie from an original decree passed ex parte. When a decree
has been passed against the Defendant as "Ex- Parte ", i.e. without his
appearance, no appeal is allowed.

(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 Causes, when the amount or value of
the subject-matter of the original suit does not exceed ten thousand rupees.

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When an appeal is headed by two or more judges, then the majority decision
shall prevail.In case there is no majority, then the decree of lower court shall be
confirmed.

In case, the number of judges in the court, where appeal is filed is more, than
the number of judges hearing the appeal, then if there is a dispute on a point
of law, such dispute can be referred to one or more judges.

In Zair Husain vs Khurshed Jan (1906), the High Court of Allahabad stated that
a litigant has independently of any statute, a right to institute any suit of a civil
nature in one court or another. The court also stated that the right of appeal is
not to be assumed in any matter which comes before the court. Such right
must be given by statute or by some authority equivalent to a statute.

The appeal against Preliminary Decree

Section 97 provides that the failure to appeal against a preliminary decree is a

bar to raising any objection to it in the appeal against a final decree.

The Court in the case of Subbanna v. Subbanna provides that, the object of the
section is that questions which have been urged by the parties & decided by
the Court at the stage of the preliminary decree will not be open for re-
agitation at the stage of preparation of the final decree. It’d be considered as
finally decided if no appeal is preferred against it.

No appeal against a finding

The language of Section 98(2) is imperative & mandatory in terms. The object
appears to be that on a question of fact, in the event of a difference of opinion,
views expressed by the lower court needs to be given primacy & confirmed.
The appellate court cannot examine the correctness of the finding of facts and
decide upon the correctness of either view.

The appeal against a dead person

A person who has unknowingly filed an appeal against a person who was dead
at the time of its presentation shall have a remedy of filing an appeal afresh
against the legal heirs of such deceased in compliance of the Limitation Act.

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Who may appeal?

A regular first appeal may be preferred by one of the following:

 Any party to the suit adversely affected by a decree, or if such party is

dead, by his legal representatives under Section 146
 A transferee of the interest of such party, who so far as such interest is
concerned, is bound by the decree, provided his name is entered on the
record of the suit;
 An auction purchaser may appeal against an order in execution setting
aside the sale on the ground of fraud;
 No other person, unless he is a party to the suit, is entitled to appeal
under Section 96.

A person, who is not a party to the suit, may prefer an appeal from a
decree/order if he’s bound/aggrieved affected by it via special leave of the
appellate Court.

Procedure For Appeal From Original Decrees ( Order 41)

1. The appeal shall be filed in the form prescribed, singed by the appellant,
along with a true certified copy of the order.
2. The appeal shall contain the grounds of objection under distinct heads,
and such grounds shall be numbered consecutively.
3. If the appeal is against a decree for payment of money, the court may
require the appellant to deposit the disputed amount or furnish any
other security.
4. A ground / objection which has not been mentioned in the appeal,
cannot be taken up for arguments, without the permission of court.
5. Similarly any point of act which was not taken up by the Appellant, in
lower court, cannot be taken up in appeal lies only against only those
points which have been decided by the court rightly or wrongly.

In Hanmant Rukhmaji v. Annaji Hanmant(1913), it was held that when an

appellate Court dismisses an appeal under Section 151, a judgment has to be
written summarising the cogent reasons for such dismissal, along with a formal
decree.

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2. Appeals from Appellate Decrees ( Second Appeal)
NATURE OF THE SECOND APPEAL

1. The right to appeal is not inherited but it is created by statute. The right
to file suits is inherent in nature.
2. This right starts from the date of filing suits.
3. The decision of Appellate Court is final.
4. The rights cannot be declared void until and unless declared by the
statue.

SCOPE OF THE SECOND APPEAL

The Second appeal can only be exercised only when the case falls under these
categories-

a. Question of law is involved.

b. Question of law should be substantial.

It is to be noted that Question of fact wrongly determined should not be the

criteria for the second appeal.

Section 100:The second appeal has been defined under Section 100 of Code of
Civil Procedure which reads as:

(1)An appeal shall lie to the High Court from every decree passed in appeal by
any Court subordinate to the High Court, if the High Court is satisfied that the
case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex-
parte.

(3)In an appeal under this section, the memorandum of appeal shall precisely
state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is
involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the
respondent shall, at the hearing of the appeal, be allowed to argue that the
case does not involve such question.

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 The procedural right of the second appeal is conferred by this section on
either of the parties to a civil suit who has been adversely affected by the
decree passed by a civil court. The second appeal lies to the High Court only if
the court is satisfied that it involves a substantial question of law.

In Mahindra & Mahindra Ltd. v. Union of India & Anr(1979), the court
observed that “Under the proviso, the Court should be ‘satisfied’ that the case
involves a substantial question of law and not a mere question of law. The
reason for permitting the substantial question of law to be raised should be
recorded by the Court.

The right to appeal or second appeal for that matter is an instrument of the
statute. Thus, such right doesn’t come under the principles of natural justice
and one can’t approach the court if the same has not been provided by the
statue.

On what grounds does a Second Appeal lie?

Section 101 reads as “Second appeal on no other grounds— No second

appeal shall lie except on the ground mentioned in section 100” therefore, it
specifically bars the second appeal on any other ground mentioned in Section
100.

No Second Appeal in certain cases:

The scope of application of a second appeal has been made limited by Section
102 to the cases wherein the subject matter of the original suit should exceed
three thousand rupees.

Moreover, no appellate court has the jurisdiction to entertain a second appeal

on an erroneous finding of the fact, however gross or inexcusable the error
may seem to be.

However, there is no absolute prohibition on the appellate court to entertain a

second appeal on a question of fact.

The court in Jagdish Singh v. Natthu Singh(1992) laid down that if the court is
satisfied that the finding of fact by the lower court was vitiated due to non-
consideration of relevant evidence, then the appellate court has to jurisdiction
to deliberate upon the findings of the facts.

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Question of fact:

The general rule is that the High Court shall only entertain matters involving a
substantial question of law but Section 103 serves a supplementary to this.

Section 103 states: “Power of High Court to determine issues of fact— In any
second appeal, the High Court may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal of the appeal -

(a) which has not been determined by the lower Appellate Court or both by the
Court of the first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts reason of a
decision on such question of law as is referred to in section 100.”

In Jadu Gopal Chakravarthy v. Pannalal Bhowmick & Ors(1978), the question

came up before the court that whether the compromise decree was obtained
by fraud. The court held that though it is purely a question of fact none of the
lower courts has dealt with the question whether the decree was obtained by
committing a fraud on the Court and hence, this court can look into the
question of fact by exercising its power under Section 103.

CONCLUSION:

The right to appeal shall occur as soon as the verdict is delivered by the
appropriate court of law. Such a right shall not be extended solely to the party
to which an adverse judgement is pronounced, but shall extend fairly to all the
parties. Consequently, the plaintiffs have the right to appeal as soon as the
hearings begin and emerge after a verdict is pronounced.

3.Appeals from Orders (Section 104 – 106)

SECTIONS 104 to 106 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".

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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

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.

Section 106: What Courts to hear appeals.

Where an appeal from any order is allowed it shall lie to the Court to which an
appeal would lie from the decree in the suit in which such order was made, or

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where such order is made by a Court (not being a High Court) in the exercise of
appellate jurisdiction, then to the High Court.

Order 43 CPC: Appeals from Orders

An appeal shall lie from the following Orders under the provisions of section
104, namely:-

(a) an Order under rule 10 of Order VII returning a plaint to be presented to the
proper Court 1[except where the procedure specified in rule 10A of Order VII
has been followed];

(c) an Order under rule 9 of Order IX rejecting an application (in a case open to
appeal) for an Order to set aside the dismissal of a suit;

(d) an Order under rule 13 of Order IX rejecting an application (in a case open
to appeal) for an Order to set aside a decree passed ex parte

(f) an Order under rule 21 of Order XI;

(i) an Order under rule 34 of Order XXI on an objection to the draft of a

document or of an endorsement;

(j) an Order under rule 72 or rule 92 of Order XXI setting aside or refusing to set
aside a sale;

(ja) an Order rejecting an application made under sub-rule (1) of rule 106 of
Order XXI, provided that an Order on the original application, that is to say, the
application referred to in sub-rule (1) of rule 105 of that Order is appealable.]

(k) an Order under rule 9 of Order XXII refusing to set aside the abatement or
dismissal of a suit;

(l) an Order under rule 10 of Order XXII giving or refusing to give leave;

(n) an Order under rule 2 of Order XXV rejecting an application (in a case open
to appeal) for an Order to set aside the dismissal of a suit;

4[(na) an Order under rule 5 or rule 7 of Order XXXIII rejecting an application

for permission to sue as an indigent persons

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(p) Orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;

(q) an Order under rule 2, rule 3 or rule 6 of Order XXXVIII;

(r) an Order under rule 1, rule 2 4[rule 2A], rule 4 or rule 10 of Order XXXIX;

(s) an Order under rule 1 or rule 4 of Order XL;

(t) an Order of refusal under rule 19 of Order XLI to re-admit, or under rule 21
of Order XLI to re-hear, an appeal;

(u) an Order rule 23 [or rule 23A] of Order XLI remanding a case, where an
appeal would lie from the decree of the Appellate Court

(w) an Order under rule 4 of Order XLVII granting an application for review.

IMPORTANT CASE LAWS

1. Scope of Section 104:

Subal Paul v. Malina Paul, (2003) 10 SCC 361: “By reason of Section 104 of the
Code of Civil Procedure the bar of appeal under a special statute is saved. A
plain reading of Section 104 of the Code of Civil Procedure would show that an
appeal shall lie from an appealable order and no other order save as otherwise
expressly provided in the body of this Code or by any law for the time being in
force. Section 104 of the Code merely recognises appeals provided under
special statute. It does not create a right of appeal as such. It does not,
therefore, bar any further appeal also, if the same is provided for under any
other Act, for the time being in force. Whenever the statute provides such a
bar, it is so expressly stated, as would appear from Section 100-A of the Code
of Civil Procedure.”

2. Appeals allowed under Section 104:

P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672:

At this stage it would be appropriate to analyse Section 104 CPC. Sub-section

(1) of Section 104 CPC provides for an appeal from the orders enumerated
under sub-section (1) which contemplates an appeal from the orders
enumerated therein, as also appeals expressly provided in the body of the
Code or by any law for the time being in force. Sub-section (1) therefore
contemplates three types of orders from which appeals are provided, namely,

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(1) orders enumerated in sub-section (1),

(2) appeals otherwise expressly provided in the body of the Code, and

(3) appeals provided by any law for the time being in force.

4. 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—

a. The case involves a substantial question of law of general importance;

and
b. 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

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 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.

5.General provisions relating to appeals under the Code of Civil

Procedure, 1908.
General provisions relating to appeals under the Code of 1908 are spread of
two provisions namely Section 107 and 108 dealing with powers of the
appellate court, and procedure in appeals from appellate decrees and orders
respectively.

Section 107 of the Code of Civil Procedure, 1908 provides the powers of the
Appellate Court. The provision reads as:

(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.

This provision provides a systematic arrangement of the powers of an

appellate court which includes final determination of a case, remanding a case,
framing issues and addressing the same during the trial, and taking additional
evidence whenever required. All these four powers need to exercise
judiciously without any scope for creases in the administration of justice.

Section 107 opens doors for the appellate court to take additional evidence
provided the limitations laid down by the general rule can be found to exist.

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The circumstances when additional evidence can be considered by the
appellate court are provided under Order XLI, Rule 27 of the Code of Civil
Procedure, 1908 which are presented hereunder:

“(a) the Court from whose decree the appeal is preferred has refused to admit
evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that

notwithstanding the exercise of due diligence, such evidence was not within his
knowledge or could not, after the exercise of due diligence, be produced by him
at the time when the decree appealed against was passed, or

(b) the appellate court requires any document to be produced or any witness to
be examined to enable it to pronounce judgment, or for any other substantial
cause.”

ShivajiraoNilangekarPatil v. Mahesh MadhavGosavi (1987) I SCC 227: In this

case the Supreme Court stated that the basic principle of admission of
additional evidence is that the person seeking the admission of additional
evidence should be able to establish that with the best efforts such additional
evidence could not be adduced at first instance. Secondly the party affected by
the admission of additional evidence should have an opportunity to rebut such
additional evidence. Thirdly the Additional evidence should be relevant for the
determination of the issue.

Contents of a judgment delivered by an appellate court

Section 107 read with Order XLI Rule 31 provides the contents of a judgment
delivered by the appellate court which are:

1. The judgment should contain the points of determination;

2. The judgment must include the decision made by the court;
3. The judgment must carry the reason behind the decision made by the
court; and
4. The judgment must consist of the relief provided to the appellant if the
decree that was appealed has been reversed in the favour of the
appellant.

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Power to remand a case

Order XLI Rule 23 lays down the provision for remand of a case by an appellate
court. The Rule provides two grounds for the appellate court to utilize its
power to remand a case which are:

1. The court from whose decree an appeal has arisen has disposed off the
suit on the basis of a preliminary point;
2. The decree was given by the court and has been reversed by the court of
appeal.

A discretionary power, to begin with, Rule 23 of Order XLI can be invoked by an

appellate court where the appeal has its roots in the decree passed by a court
while considering a preliminary point, as has been observed by the Supreme
Court of India in the noteworthy case of Jegannathan v. Raju Sigamani (2012).
Further, in 2020 the Supreme Court while deciding on the case of Shivakumar
v. Sharanabasappa (2020) observed that the appellate courts must not be
passing orders of remand on a routine basis thereby upholding that the power
vested on the appellate court under Order XLI Rule 23 needs to be used with
caution and only in rare cases.

Section 108 of the Code of Civil Procedure, 1908 lays down the provision for
the procedure in appeals from appellate decrees and orders. The provision
reads as, “The provisions of this Part relating to appeals from original decree
shall, so far as may be, apply to appeals-

(a) from appellate decrees, and

(b) from Orders made under this Code or under any special or local law in
which a different procedure is not provided.”

Section 108 specifies two parameters in which it will apply to the appeals
concerning those grounds only.

They are appeals from appellate decrees that are the rights of the parties laid
down by an appellate court while considering an appeal by one of the parties
in the suit, and to those Orders under the Code of 1908, or any other special,
or local law which have not been provided with a proper procedure to be
followed for its execution.

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CONCLUSION

As stated above section 107 and 108 are general provisions relating to appeal.
Section 107 deals with the powers of the appellate court in the cases of appeal.
Whereas Section 108 of Code of Civil Procedure deals with the procedure in
appeals from appellate decrees and orders.

Internal Q

Give the general principles governing appeals. (section 107-108)

2021

1. Regular First Appeal & Regular 2nd Appeal (8x8)

2. Discuss the Provisions for Appeals from Orders. Also state the general
provisions relating to Appeals (16)

2020

What are appeals? Explain the classes of Appeal provided under The Code of
Civil procedure.

2017

What procedure is prescribed by code of civil Procedure for filing an appeal?

When can a second appeal be filed? (2013)

2016

Explain the provisions relating to appeals from every decree passed by any
court exercising original jurisdiction.

A second Appeal lies to a high court only if the high court is satisfied that the
case involvea a substantial question of law. Explain.

2014

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Explain the provisions relating to appeals from original decrees under the
CPC,1908. Explain the appeals from appellate decrees.

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