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:
Sections 96-112 and Orders 41 to 45.
1. First appeals: Ss. 96-99A, 107 and Order 41.
2. Second Appeals: Ss. 100-103, 108 and Order 42.
3. Appeals from orders: Ss. 104 -108 and Order 43.
4. Appeals to the Supreme Court: Sections 109, 112 and Order 45.
5. 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.
FIRST APPEALS
96. Appeal from Original decree:
(1) Save where otherwise expressly provided in the body of this Code, or by any other law for
the time being in force, an appeal shall lie from every decree passed by any Court exercising
original jurisdiction the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed ten thousand rupees.

1
Takwani, C.K., Civil Procedure Code, 7th Edition, Eastern book Company, Lucknow 2014, p -475
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 following persons are entitled to appeal under this section:

1. A party to the suit who is aggrieved or adversely affected by the decree,or if such party is dead
,his legal representatives.
2. A person claiming under a party to the suit or a transferee of the interests 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.
3. A guardian ad litem appointed by the court in a suit by or against a minor.
4. Any other person , with the leave of the court , if he is adversely affected by the decree.

APPEAL AGAINST EX PARTE DECREE: SECTION 96(2)

The defendant, against whom an ex parte decree has been passed, has the following remedies
available to him:
1. Apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or
2. Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115
where no appeal lies);
3. Apply for review: Order 47 Rule 1; or
4. File a suit on the ground of fraud.
The above remedies are concurrent and they can be prosecuted simultaneously or concurrently.
In an appeal against an ex parte decree, the appellate court is competent to go into the question of
the propriety of the ex parte decree passed by the trial court.

NO APPEAL AGAINST CONSENT DECREE: SECTION 96(3)

Section 96(3) declares that no appeal shall lie against a consent decree.

NO APPEAL IN PETTY CASES: SECTION 96(4)

 It has been inserted by the Amendment Act of 1976. It bars appeals except on points of law in
certain cases. Prior to 1976, Section 96 allowed a first appeal against every decree. Now, this
sub-section bars appeals on facts from decrees passed in petty suits where the amount or value of
the subject-matter of the original suit does not exceed ten thousand rupees, if the suits in which
such decrees are passed are of the nature cognizable by the Courts of Small Causes. The
underlying object in enacting the said provision is to reduce appeals in petty cases. Such
restrictions are necessary in the interest of the litigants themselves. They should not be
encouraged to appeal on facts in trivial cases2.

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. An 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 appeal3.
In order that an appeal may be said to be validly presented, the following requirements must be
complied with:
1. It must be in the form of a memorandum setting forth the grounds of objections to the
decree appeal from;
2. It must be signed by the appellant or his pleader;
3. It must be presented to the court or to such officer as it appointed;
4. The memorandum must be accompanied by a (certified) copy of the judgement.
5. Where the appeal is against a money decree the appellant must deposit the decretal
amount or furnish the security in respect thereof as per the direction of the court

SECOND 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.

2
Law Commission’s 54th report at pg.72
3
http://www.lawnotes.in/Section_97_of_Code_of_Civil_Procedure,_1908
 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.

Sections104 to108 and Order43 deal with appeals from orders. They state that certain orders
are appealable. No appeal lies against other orders. But those orders can be attacked in an appeal
from the final decree. They also provide for the forum of an appeal.
The word "Order" has been defined as "the formal expression of any decision of a civil court
which is not a decree"'. Thus, an adjudication of a court which does not fall within "decree" is an
"order"

The Code has made certain orders appealable. Appeals can be filed only against those orders
which are made appealable. No appeal lies from other orders. An appeal shall lie from the
following order as provided by section 104 and order 43:
1. An order awarding compensatory costs in respect of false or vexatious claims or defence.
(Section 35-A). Such appeal, however, is limited to two grounds, namely: a. No such order could
have been made; or b. An order for less amount ought to have been made.
2. An order refusing leave to institute a suit against public nuisance. (Section 91)
3. An order refusing leave to institute a suit in case of breach of trust. (Section 92)

Appeals to Supreme Court are governed by the provisions of Articles 132, 133 and 134-A of the
Constitution of India with regard to civil matters. Subject to the provisions of the Constitution,
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
Court4.

Sections 109 and 112 read with Order 45 deal with appeals to the Supreme Court.

CONDITIONS: SECTION 109, ORDER 45 RULE 3

An appeal would lie to the Supreme Court under Section 109 of the Code only if the following
conditions are fulfilled:
4
Ss 109, 112
a. A judgement, decree or final order must have been passed by the High Court,
b. A substantial question of law of general importance must have been Involved in the Case.
c. In the opinion of the High Court, the said question needs to be decided by the Supreme Court.

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.