MEMORANDUM OF APPEAL AND REVISION

The memorandum of appeal shall set forth concisely and under distinct heads,
the grounds of objection to the decree appealed form without any argument or
narrative and such grounds shall be numbered consecutively. (Order XVI Rule 1
C.P.C.)The memorandum according to order XLI, Rule 1 shall be accompanied
by a copy of the decree appealed from and unless the appellate court
dispenses there with, of the judgment on which it is founded. The word 'copy'
means a certified copy. This is a mandatory requirement, in the sense that an
appeal filed without a certified copy of the decree makes the appeal
incompetent. defective and [competent. But where the circumstances require
it, the court has power to treat the appeal as competent and maintainable
even in the absence of a copy of the decree attached. (Phool Chand V. Gopal
Lal, AIR 1967 SG 1470)

MEMORANDUM OF APPEAL AND REVISION

The memorandum of appeal shall set forth concisely and under distinct heads, the grounds of objection to

the decree appealed form without any argument or narrative and such grounds shall be numbered

consecutively. (Order XVI Rule 1 C.P.C.)The memorandum according to order XLI, Rule 1 shall be

accompanied by a copy of the decree appealed from and unless the appellate court dispenses there with,

of the judgment on which it is founded. The word 'copy' means a certifieed copy. This is a mandatory

requirement, in the sense that an appeal filed without a certified copy of Jhe decree makes the appeal

incompetent. defective and [competent. But where the circumstances require it, the court has power to

treat the appeal as competent and maintainable even in the absence of a copy of the decree attached.

(Phool Chand V. Gopal Lal, AIR 1967 SG 1470)

The term 'appeal' means the judicial examination by a higher court of the decision of inferior
court while the memorandum of appeal contains the grounds on which the Judicial
examination is invited (Lakshmi Ratan Engineering Works, Ltd. V. Asst. Commissioner of sales
Tax, AIR 1968 SC 488) An appeal in legal paralence is held to mean the removal of a cause from
an inferior or subordinate to a superior tribunal or forum in order to test and scrutinise the
correctness of the impugned decision. It amounts in essence and pith to a complaint to a
higher forum that the decision of a subordinate tribunal is erroneous and, therefore liable to be
rectified or set right

There is a basic distinction between the right of suit and the right of appeal. There is and
inherent right in every personto 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, however,
frivolous the claim, that the law confers no such right to sue. Asuit for its maintainability
requires no authority of law and it is enough that no statute bars the suit. But the positition in
regard to appeal is quite the opposite. The right of appeal inheres in no one and, therefore, and
appeal for its maintainability must have the clear authority of law.

That explains why the right of appeal is described a creature of statute. Under the code of civil
procedure an appeal lies only as against a decree or as against an order passed under rules
from which an appeal is expressly allowed by order XLIII, Rule 1. No appeal can lie against a
mere finding for the simple reason that the code does not provide for any such appeal and if it
is directed against a mere findlng recorded by the trial court, it is not maintainable. (Gangabai
V. Vijay Kumar AIR 1974 SC 1126).

The right of appeal is not a guaranteed or a constitutional right. There is nothing whatsoever in
the constitution which may even remotely vest any such inalienable right in the citizens. The
right of appeal is not a fundamental right nor a constitutional one. It has been repeatedly held
that the right of appeal is the mere creature of the stature. The creator that is the legislature
which confers such right can equally take the same away, if necessary. It inevitably follows
there form that if the whole right can be thus taken away it can equally be impaired, regulated
or burdened with condition either onerous or otherwise.

Grounds of an Appeal
An appeal under the Civil Procedure Code can be made under the following grounds:

 A decision has already been made by a judicial or administrative authority.

 A person is aggrieved of such decision, whether or not he is a party to the

proceeding.

 The appeal is entertained by a reviewing body.

Who Can File an Appeal?

Any of the following persons can file an appeal:

 Any party to the original proceeding or his/her legal representatives.

 Any person claiming under such party or a transferee of interests of such party.

 Any person appointed by the court as the legal guardian of a minor.

 Any other aggrieved person after taking leave of the court.

Who Cannot?
 A party which has relinquished its right of appeal as per an agreement which is
clear and unambiguous.

 A party which has availed the benefits under a decree.

 Parties with a consent decree. Consent, in this case, could be a lawful agreement
or compromise, or could even be presumed from the conduct of the parties.

 Parties, whose factum or compromise is in dispute or hasn’t been formulated.

 Parties involved in petty cases.

 No legal representatives are entitled to file an appeal against a deceased person.

Features of an Appeal
 The rights of appealing are not inherent, and therefore must be created in express
terms by the statue. Thus, these rights differ from the rights of filing suits, which
is inherent in nature.

 It is a substantive right.

 The rights under this provision accrue from the day of the institution of the suit.

 These rights cannot be made void, except through a statue (either expressly or by
implication).

 The discretion of the appellate authority is conclusive.

Appellate Authority – refers to the authority which undertakes and adjudicates
the initial review appeal.

Memorandum of Appeal
Any appeal under these provisions must be supported with a memorandum of appeal,
which is a document comprising of the grounds of appeal. The constituents of a valid
memorandum of appeal include:

 The grounds for filing an appeal.

 Signature of the appellant or his/her pleader.

 The attachment of the certified copy of the original judgement.

 The remittance of the decretal amount or security (in case of a money decree).
The appellant, with respect to this provision, is not entitled to take any grounds or
objection except the ones mentioned in the memorandum. However, the court may
accept such objections on its own accord, provided the opposite party is provided with
adequate opportunities to contest such grounds.

The court has the right to reject or amend any memorandum which it finds to be
inappropriate. The court shall record the reasons for such rejection.
Decretal – “of the nature of a decree.”

Appeals from Original Decrees

 Appeals from original decrees, which is performed by the appellate court, are
preferred in a court which is superior in rank to the Court passing the decree.

 Appeal for such decrees may lie on an original decree passed ex parte.

 No appeals will be placed if the decree is passed with the consent of the parties.

 The appeal from original decrees lies on a question of law.

 No appeal lies in any suit of the nature cognizable by Courts of small causes if the
amount or value of the subject matter of the original suit is confined to a sum of
Rs. 10,000.

 The appellate court may remand a case to a trial court if the latter has dispensed
of the case without recording any findings.

 The decision of the appellate authority is conclusive.

 If an appeal under this provision is heard by a bench of multiple judges, the

opinion of the majority will be considered.

 In the absence of a majority, the original decree will stay.

 Where the bench digresses on any point of view, the same may be determined by
any number of the remaining judges of the court, and the decision shall be taken
by a majority of the judges hearing the appeal, which includes the judges who
have heard it originally.

 The judgement may confirm, modify or reverse the decree.

Remand of a Case
Remand, in this context, refers to the reverting of a case. The appellate court may revert
the case to the trial court if the latter has disposed the suit on a preliminary point without
recording any findings. The appellate court may also demand the trial court to admit the
suit in its original number in the register of civil suits. The evidence (if any) recorded in
the original suit could be used as evidence if the case is remanded to the trial court. An
order of demand disqualifies the verdict of the lower court and is appealable.

On the other hand, the appellate court is not entitled to remand a case if the lower court
has misconceived the evidence or, the lower court has provided a verdict on insufficient
material.

Furnishing of Additional Evidence

The general course of law doesn’t allow any parties to an appeal to produce additional
evidence, be it oral or documentary. However, the appellate court may permit the same
under the following circumstances:
  If the lower court declined the acceptance of any evidence despite having the
grounds to accept the same.

 The party adducing the evidence substantiates that the evidence was not within
his/her knowledge despite exercising due diligence earlier.

 If the party substantiates that proper evidence could not be produced by him/her
in spite of exercising due diligence.

 The appellate court finds it essential to examine any document or witnesses to

facilitate the adjudication of the case

Decree of the Appellate Court

Decree refers to the legal implications of a particular act. The decree of the appellate
court shall include:

 The date of the judgement.

 The number of the appeal.

 The names and description of the parties.

 The grant of relief and any other adjudication made.

 The total cost incurred.

 The property from which the cost was incurred.

 The property from which the cost will be payable.

 The proportion of payment of costs.

 Signature and date of the judges.

Second Appeal
Section 100 of the Civil Procedure Code provides that an appeal can be moved to the
High Court from every decree passed in appeal by any subordinate Court if the High
Court finds that the case includes a substantial question of law.

Taking this into context, the memorandum of appeal must clearly state the substantial
question of law in this appeal. If the High Court deems it to be satisfactory, it may go on
to formulate the pertinent questions, based on which the appeal would be heard. Also,
the High Court may hear the appeal on any other substantial question of law not
formulated by it if it feels that the case involves such question.

It may be noted that a second appeal is only meant for questions of law and hence
cannot be made on the grounds of an erroneous finding of fact. On the same page, in the
absence of any errors or defects in the procedure, the finding of the first appellate court
will be considered as final, if the particular Court produces evidence to support its
findings.

In another important note, second appeals cannot be made for a decree if the subject
matter of the original suit is intended to recover a sum of Rs. 25,000.
Difference Between Second Appeal and Revision
Despite the similarities in outlook, the nature of a second appeal and revision vary, the
likes of which has been elaborated below:

S. No Second Revision
Appeal

1 Involves a Involves a
substantial jurisdictional
question of error
law

2 Filed to Filed in cases

oppose a where there
decree was not any
passed by appeal in the
the appellate first place
court

3 The High The High

Court is Court is not
entitled to entitled to
rectify a legal amend the
error of the decision of a
lower court lower court
even in the
case of a
legal mistake

4 The High An issue of

Court may fact cannot
decide an be decided
issue of fact by the
jurisdictional
body

5 The High The High

Court is not Court may
 vested with decline
any interference
discretionary on the
powers, and satisfaction
hence it that
cannot substantial
refuse to justice has
grant relief been done
on equitable
grounds

Appeals from Orders

Appeals from orders could be placed with respect to the following pronouncements on
the grounds of any defect or irregularity in law:

 Any orders under Section 35A of the Code allowing special costs, and orders
under section 91 or 92 refusing leave to institute a suit of the kind referred to in
Section 91 or Section 92.

 Any orders under Section 95, which involves the compensation for obtaining
attachment or injunction on insufficient grounds.

 Orders under the code which deals with the imposition of fine, direction of
detention or arrest of any person except in execution of a decree.

 Appealable orders as prescribed under Order 43, R.I. However, appeals cannot be
filed based on any order enlisted in clause (a) and from any order passed in
appeal under Section 100.

Appeals by Indigent Persons

Any person who is not capacitated to remit the fee required to file the memorandum may
file an appeal as an indignant person. If the court declines the application of a person to
appeal in this manner, it may necessitate the applicant to remit the required court fee
within a prescribed time-frame.

Appeals to the Supreme Court

Appeals to India’s highest jurisdictional body can be made if the former considers the
case to be appropriate for an appeal to the Supreme Court or when a special leave is
granted by the Supreme Court itself. Appeals can be filed to the Supreme court by filing
a petition with the court which enacted the decree, upon which the petition would be
heard and disposed of within a period of sixty days. Petitions submitted for this purpose
must state the grounds of appeal. Also, it must include a plea for the issuance of a
certificate stating that the case involves a substantial question of law which needs to be
decided by the Supreme Court.
The opposite party will be provided with an opportunity for raising any objections against
the issue of such certificate. The petition would be disposed of if the applicant is denied
the certificate. If accepted, the appellant would be required to deposit the required
security and costs within a prescribed time-frame.

After the applicant performs the above obligations, the court from whose decision an
appeal is preferred shall declare the appeal as admitted, an intimation of which will be
addressed to the respondent. Further to this, the jurisdictional body forwards a precise
copy of the record under seal and furnishes the copies of such papers in the suit.

Circumstances for Stay of Execution of

Decree
Stay of execution of decree can be made under the following circumstances:

 The party requesting for the stay is likely to incur substantial losses in the
absence of such discretion.

 The application for stay is made without any unreasonable delay.

 The applicant has provided security for the due performance of the particular
order or decree. If the applicant has failed in this commitment due to which the
application gets rejected, the security can still be deposited within a time-frame of
30 days, upon which the application would be accepted.

Grounds of Appeal: A memorandum of appeal is meant to be a statement of the grounds upon

which the appellant proposes to support the appeal. It is a notice to the court that such and
such specific grounds are proposed to be urged on behalf 0 the appellant, as also a notice to
the respondent that he should be ready to meet those specific grounds. The parties concerned
and their legal advisers should concentrate and focus their attention on the essential feature
of cases so as to facilitate speedy and consequently, cheap administration of justice. (Kapil
Deo Shukla V. state of Uttar Pradesh, 1958 SC R 640)

An appeal is essentially a continuation of the original proceedings. The theory of an appeal is

that the suit is continued in the court of appeal and re-heard there.

An appeal is essentially a continuation of the original proceedings. The theory of an appeal is

that the suit is continued in the court of appeal and re-heard there.

An appeal is a continuation of a suit but this is only in a limited sense, it does not, however,

mean that the rights which could be pleaded and enforced before a suit was finally adjudicated
by the first court could be pleaded as of right for the first time during the pendency of the

appeal. It is also true that courts do very often take notice of events that happen subsequent to

the filing of suits and at times even those that have occurred during the appellate stage and

permit pleadings to be amended for including a prayer for relief on the basis of such events

but this is ordinarily done to avoid multiplicity of proceedings or when the original relief

claimed has, by reason of change in the circumstances, become inappropriate and not when

the plaintiff 's suit would by wholly displaced by the proposed amendment and a fresh suit by

him would be barred by limitation. Although in cases where it would not be so barred different

considerations might came into play and a different view might be possible. It cannot be,

however, disputed that ordinarily an appellate court- can give effect to such rights only as had

come into being before the suit had been disposed of and which the trial court was competent

to dispose of (chunni Lal khusaldas Das V.K.Adhyaru, AIR 1956 SC 655,675 ). But if during

dependency of the appeal it transpires that the respondent landlord has transferred the

respondent landlord has transferred the property (House) which he, according to his petition

required for his personal use, and the transfree had filed a suit for eviction against the tenant,

the appellate court can take notice thereof and dismiss the transferor landlord's suit.

Right of appeal is not an inherent right of the subject but only exists where it is expressly

conferred by statute.

Point of limitation not taken in the memorandum of appeal, being a pure ground of law, may be

entertained at the hearing thereof

Although the general rule may be that a plea once abandoned may not be raised, the right view

seems to be that such fundamental issues as limitation and resjudicata are exceptions to it.

Appoint of limitation is prima facie admissible even in a court of last resort.

The essential requirement of an appeal is rehearing of a grievance and merits. Under order XLI

of code of civil procedure, the expressing "appeal" and "memorandum of appeal" are used to
denote two distinct things. The appeal is the judicial examination, the memorandum of appeal

contains the grounds on which the judicial examination is invited

Order XLI, Rule 1 of C.P.C. deals with the form of appeal, what to accompany memorandum
and contents of memorandum.
Memorandum Appeal consist of :-
(1) The formal part,
(2) The material part,
(3) The Relief,

The formal part of the memorandum of appeal contains the heading of the case. After the name
of the court, the number of the appeal and the year in which it is filed ad mentioned the
number is written by the official of the court for which space is left blank. There after the
names and addresses of the parties are given. The name of the app~lIant is given first and
then of the respondent. It is also to be noted against the name of the parties as to what
character each filled in the lower court.

After the names of the parties an introductory statement giving the particulars of the decree or
order against which the appeal is directed. Its number and date the court which passed it and
the name of the presiding officer should be written.

It may be stated that wherever the High Court has prescribed forms of heading of appeal from
decrees and orders, the same should be followed.

Material part of the memorandum consists of the grounds of appeal. A memorandum of appeal
is meant to be a succinct statement of the grounds upon which the appellant proposes to
support the appeal. The grounds of appeal should be carefully drafted since these grounds are
the very basis of the appellant's case for raising objection and attacking the decree or order
appealed. While taking the grounds of objection, the defects and errors of the decision of the
lower court should be pointed out. Errors of law, f any may also be indicated. The facts and
circumstances which require the decision of the lower court o be altered and make it
erroneous should be specifically high lighted in the grounds of appeal. It is mportant to note
that no new plea, which was not taken in the pleadings and on which no issue was ramed nor
evidence was led, should be raised. An appellant cannot argue in regard to any ground
of )bjection not taken in the memorandum of appea

It is of utmost importance that the memorandum of appeal should be drawn up in accordance

with order (L1, Rule 1, C.P.C. which provides form of appeal, its presentation, documents to be
filed and grounds )f objection. It these provisions are not adhered to then the memorandum of
appeal may be rejected by he court as provided in order XLI, Rule 3, C.P.C.

Order XLI Rule' 1,2,3 lays down the c conlents of memorandum: -

a. Grounds of objection should be in the concise form;
b. They should be written distinctly;
c. They should not be written in argumentative or narrative form;
d. Each ground should be numbered consecutively.

The ground should be written concisely to avoid vagueness and unnecessary details. It should
be briefly iescribed to ensure that nothing irrelevant is unclouded. The grounds objections
constitute an important actor of appeal and should be very carefully framed.

Each ground of attack should be clearly and separately stated. There should not be any
vagueness in he ground of appeal. The grounds should be specifically and distinctly stated.
The particular point and he error of law, the particular point and the error of law, the particular
finding of fact found to be wrong Ind the other mistakes committed by the lower court must be
specifically stated.

The grounds of objection should not be framed in argumentative or narrative form. These
should be distinctly and concisely stated. No argument or narration is required while taking
grounds of objection.

Each ground should be numbered chronologically. Each objection should be different and not
form the )art of another objection. It means that an objection taken should be complete in itself
and not interdependent on another. An objection already stated in a Para should not be
described subsequently n another form.

Relief : It is a general practice to mention the relief sought by the appellant though it is not
mandatory to is so. Generally the relief would be to set aside the decree appealed against but

if the appeal is by a defendant against a decree passed against him, it may be enough to say

that the decree be set aside and the suit be dismissed.