CHAPTER XXXVI

POWERS OF APPELLATE COURT

ISECTIONS 96-108, ORDER 41, RULES 23-33

FINAL DETERMINATION (SECTION 107 (1) (A), RULE 24, ORDER 41]
Section 107 (1) (a) and Rule 24 of Order 41 enable the appellate Court to dispose of a case
finally. Where the evidence on record is sufficient to enable the appellate Court to pronounce
judgment, it may finaily determine the case notwithstanding that the judgment of the trial Court
has proceeded wholly upon some ground other than that on which the appellate Court proceeds.
The general rule is that a case should, as far as possible, be disposed of on the evidence on
record and should not be remanded for fresh evidence, except in rare cases.

I1. REMAND ISECTION 107 (1) (B), RULES

1. Meaning
23 AND 23 A
Remand means to send back. Where the trial Court has decided.the suit on a preliminary
point without recording findings on ottreT issues 'and if the appellate Coùrt Teverses 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.

2. Scope

By passing an order of remand, an appellate Court directs the lower Court to reopen and
relry the case. On remand, the trial Court ill readmit the suit under its original number in the
register of civil suits and will proceed to determine it as per the directions issued by the
appellate Court.

3. Conditions
The appellate Court has power to remand a case under Rule 23. A remand cannot be
ordered fightly. It can be ordered only if the following conditions are saislied:
a) The suit must have been disposed of by the Trial Court on a Preliminary Point
Before the Court can exercise the power of remand under Rule 23, it is necessary
to show that the lower Court has disposed of the suit on a preliminary point. A point
can be said to be a preliminary point, if it is such thal the decision thereon in a
particular way is sufficient to dispose of the whole suit, without the necessity for a
decision on Ihe other points in the case. Such prelminary point may be one of fact or
of law, but the decisior1 thereon must have avoided the necessity for a full hearing of
the suit. Thus, where the lower Court dismisses the suit as beng time barred; or
barred by limitation,; or res judicata; or as disclosing no cause of action; it does so on a
preliminary point of law On the other hand, wBiere the lower Court dismisses the suit
on ihe ground Ihai the plaintií is eslopped from proving his case: or thal it was
motivated; or that the plea raised at the heariig was different from that 1aised in the
plaint, it does so on a prelininary point of fact.
b) The decree under appeal must have been reversed
No remand can be ordered by the appellale Coiri under tus rule unless the decision
of the lewer Court on the preliminary point is seversed in appeai. Where such Is not the
case, the appellate Court cannot crder remard simplv because the judgment of the lower
Court is 0 saisíactory or that the lower Court had misconceived or musread the
evidence. c; had ignored the important evidence; or had acled contrary to law, or that the
naterial nth the conclusion is reached a:e scanty. and the appellate Court must
decide öppealin accordance with law.
c Other grovnds
Rule 23- A of Order 41, as inserted by the Anuenumet Act cf 1976, empowers the
appellale Court to remand a case even wlleri the lower Cour1 has disp:sed of the case
ollerwise than on a preliminary poin: and the remani is cusidered iecessary by lne
appelaie Court in the interests of justice
 4. Effect
An order of remand roverses the decision of the lower Court and reopens the case for
retrial by the lower Court except in regard to the matters decided by the appellate Court. An
order of remand is appealable. f the party aggrieved by an order of remand does not appeal
thererom, he cannotsubsequently question its correctness under the inherent powers of the
Court under Section 151 of the Code.

5. Duty of Trial Court

Once an order of remand is made by a superior Court, an inierior Court has to decide the
matter as per the direction of the Superior Court. In Commissioner of Wealth Tax v.
Aluminium Corporation, AIR 1973 SC, the High Court of Calcutta expressed 'doubts' about
the competence' of the Supreme Court to remand the case. When the matter reached the
Supreme Court again, the Apex Court observed that the High Court clearly exceeded its
jurisdiction in examining the 'competence' of the Apex Court to remand the case. It declared:
"'t would have been dorne well to remind itself that it was bound by the órders o this Court
and could not entertain or express any argument or views challenging their correctness. The
judicial tradition and propriety required that Court not to sit on judgment,over the decision
and orders of this Court.

6. Conclusion
The appellate Court should not exercise the power of remand very lightly. As far as
possible it should dispose of the appeal finally unless remand is imperative.

IL. FRAMING ISSUES AND REFERRING THEM FOR TRIAL [SECTION 107 (1)/C), RULES 25 &261
1. Scope
Where the ower Court has anitted (i) to frame any issue; or (i) to try any issue, or (i) to
detemine any question of fact, which is essental to the nght 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
Court to take the addiional evidence required. The iower Court shall iry such issues and shall
retum the evidence and the findings within Ihe time fixed by the appellate Court

2. Effect
Such evidence and findings shal form part of the record in the sut., and either party may file
in the appellate Court a inemorandum of objections to any such finding of the lower Court within
a time fixed by the appelate Court. The appellate Court shouid, thereatter, hear the whole appeal
and the heaning should not be confined lo the points on which the findings were called for.

3. Rules 23 and 25: Distinction

The points of distinction between Rule 23 and Rule 25 are as under
a) While after remand under Rule 23, the whole case goes back for decision to the lower
Court (except on the point on which the appellate Court has reversed the íinding of the
lower Court), under Rule 25 the case is retained in the file of the appellate Court and only
issues are remitted to the lower Court for trial and findings thereon
b) An order of remand under Rule 23 is a final order which cannot be reconsidered by the
Court which passed it except on review, while an order under Rule 25 is an interlocutor
order which is open to be reconsIdered by the Court which has passed it.
c)Whereas an order under Rule 23 is appealable, an order under Rule 26 is noi appealable

IV. ADDITIONAL EVIDENCE [SECTION 107 (1) (D), RULES 27-29]

e
1. General
As a general rule, the appcilate Court shall decide an appeal orn the evicdence led by the
partics before the tnal Cour! and should not admit edditional evidence tor the purpose of
disposal of an appeal. Suh-rule ( 1) of Rule 27 also reads thus. "The parties to an appeal shal!
e not be entilled lo produce additional evidence, whether oral or documentary. in the appellate
Court." Section 107 (1) (), however, is an exception to the general rule, and empowers an
appellate Court to take ai itional evidence or require such evidence to be taken subject o
the condilions laid dow in fie 2? of Order 41.
 2. Principles
The basic principle of admission of additional evidence is that the person seeking the
admission of additional evidence should be able lo establish that with the best efforls sudh
acditional evidence could not have been adduced at the first instance. Secondly, the party
affected by the admission of additional evidence should have an opportunity to rebut such
additional evideince. Thirdly, the additional evidence must be relevant for the determination ot.
the issue.

3. Nature and Scope

When a pariy is unab to produce the evidence in the trial Cou under the
Circumstances mentioned in the Code, he should be allowed to produce the same in an
appellate Court. The power is discretionary and should be exercised.on sound judicial
principles and in the interests of justice

4. Circumstances
Rule 27 enumerates the circumstances in which the appellate Court may admit additional
evidence, whether oral or documentary, in appeal. They are as under
a) Where the lower Court has-impropely refused to admit evidence which oyghtto.have.
been admitted; or
b) Where such additional evidence was not within the knowledge of the parfý or could not,
aifer exercise of due diligence, be produced by him atthe time:when the lower Court
passed the decree, or
)Where the appellate Court itself requires such evidence:either (a) to enable it to
pronounce judgment; or (b) for any other substantial.cause.
n Shivajirao Patil v. MaheshMadhav (AJR 1987 SC), the Supreme Court stated: "The
basicprinciple of admission of additional evidence is that the person seeking the admissIon o
additional evidence should be able to establish that with the best efforts such additional
evidence could not have been adduced at the first instance. Secondly, the party affected by the
admission of additional evidence should have an opportunity to rebut such additional evidence.
Thirdly, that additional evidence was relevant for the detemination of the
issue.
5. Recording of reasons
Whenever the appellate Court admits additional evidence, it should record reasons for
doing it. The underlying object of this provision is to keepa clear record of what weighed with
the appellate Court in allowing the additional evidence to be
produced.
6. Mode of taking additional evidence
Rules 28 and 29 lay down the mode of taking additional evidence when the
appellate
Court admits additional evidence in appeal. The appellate Court may take the evidence itself
or direct the lower Court from whose decree the appeal is preferred or any other subordinate
Court to take it. Where the appellate Court directs the lower Court to record evidence, it
shoutd retain the appeal on its file and dispose it of on receipt of the additional evidence.

V. MODIFICATIONS OF DECREE {RULE 33 OF ORDER 41]

1. General
Rule 33 of Order 41 empowers an appellate Court to make whatever order it thinks fit, not
only as belween the appellant and the respondent but also as between one respondent and
another respondent. lt empowers an appellate Court not
only to give or refuse relief to the
appellant by allowing or dismissing the appeal, but also to give Such other relief to any of the
respondents as ha tIse may require
2. llustratior:
a A claims a sum of money as due to him from X or Y, and in a suit against both obtains a
decree against X. X appeals and A and Y are
in favour of X. It has
respondents. The appellate Court decides
power to pass a decree against Y.
b) A claims a sum of money as due to him from X or Y. The suit is decreed partly against X
and partly against Y. X appeals but Y does not. The
making Y liable for the whole amount. appellate Court can discharge X

288
 3. Object
The underlying object of Rule 33 is to enable the appellate Court to do full and
complete
justice between the parties. It is tnue thal the power of the appellate Court is discretionary. But t
is a proper exercise of judicial discretion to deternine all questions in order to render ful justice
to the parties. The Court should not refluse to exercise the discretion on mere technicalities.

4. Conditions
The language of Rule 33 is very wide. The following requirements, however, must be
satisfied before it can be invoked:
a) The parties before the lower Court must also be there before the appellate Court; and
b) The question raised must have properly arisen out of the judgment of the lower Court

If these conditions are fulfilled, the appellate Court can consider any objection against
any part of the judgment or decree of the lower Court. It may be urged by any party to the
appeal.

5. Ambit and Scope *. .

The sweep of power under Rule 33 is wide enough to determine any question not only
between the appellant and the respondenl but also between the respondent and co
respondents. The appellate Court can pass any decree or order which ought to have been
passed in the facts and circumstances of the case. The words "as the case may require"
used in Rule 33 enable the appellate Court to pass any order or decree to meet the ends of
justice. The only constraint on the power of the Court is that the parties before the lower
Court should also be there before the appellate Court.

6. Limitations
T h e Rule does not confer an unrestricted right to reopen decrees which have become
final merely because the appellate Court does not agree with the opinion of the Court
Rule the Court should not lose sight of
appealed from. While exercising powers under this
, other provisionsof the Code itself ncr the provisions of other laws, viz., the law of limitation
to have been passed" means
or the law of Court-fees, etc. The expression "which ought
"which ought in law to have been passed. Such a power is to be exercised in exceplional

cases when its non-exercise will lead to

difficulties in the adjustment of rights of the various
Rameshwar Behari Lal, AIR 1963 SC]
Prasad Shyam
parties.[Vide:
VI. OTHER POWERS ISECTION 107 (2)J
Section 107 (2) of the Code enacls Ihat ver and abOve the aloresaid powers, an appellate
Court. This provision Is based on the general principle
Court has the same powers as an original while the
continuafion of a sut and therefore, an appellate Court can do,
that an appeal is a
Court could have done while the suit is pending. Thus, an
appeal is pending, what the original ihe evidence, to add, transpose or substitute the
appellate Court is empowered lo re-appreciate to return a
plaint or memorandum of appeal for
parties, to permit the withdrawal proceedings,
of
notice of subsequent
to allow amendments in pleadings, to take
presentation to the proper Court, the existing law, to order
a change in law and to apply
events, to take into consideration
certain acts, elc.
restitution, to enlarge time for doing

YEARS' EXAM- [DJS, RJS, UP PCS (J), MPPCS (J}, BJE, HJS,
VIl QUESTIONS OF PREVIOUS
HARYANA JS ETC.]
1. Coniment upon the powers of the appelate Court where
issues; and
a) The trial Court has failed to frame proper
addilional evidence.
[250 Words, RJS-1979
b) The appellant desires to adduce
RJS-1986
2. What are the powers of Appellate Court? [50 Words, can an
does not exist' Comment
of appeal is clearly given by slatute, it
3. UnlesS a right of misjoinder of parlies? [150
Words,
appellate Court reverse a decree on the ground
UPPCS(J)-1986, 250 Words, HJS-2001]

4 Short Notes: Remand [150 Words, BJE-1979]

89
 CHAPTER XXXVIN
FIRST APPEAL
ISECTIONS 96-99A, ORDER 41)
. APPEAL: MEANING
The expression
"appeal" has not been defined in
judicial examination of the decision by a higher Courttheof Code, but it may be
defined "the
as
the decision of an
means removal of a cause from an inferior COurt to
the soundness of the decision of a
superior Court for
inferior Court".t
the inferior Court. the purpose of
testing
. RIGHT OF APPEAL
A right of appeal is nota natural
or inherent
of statute and there is no right. It is well setled that
right of appeal unless it is given clearly and an appeal is a creature
statute. Again, the right of in
express terms by a
appeal is a substantive
right and not
the litigant and exisls as on and merely.a matter of procedure. It
is a vested right and accrues to
and although it from the date
may be actually exercised when the adverse the lis commencees
is to be the judgment
governed by law prevailing at the date of the institution of is pronounced, such right
not by the law that
This vested right of
prevails at the date of its decision or at the date ofthethesuit or proceeding and
appeal can be taken filing of the
only by a subsequent enactment if it so appeal.
expressly or by necessary implication, andaway not otherwise. Thus, if an provides
passed by a Single Judge of the High Court under appeal lies against an order
1956, to the Division Bench, the said Sections 397 and 398 of the
nght cannot be taken away on the Companies Act,
Court has not framed
necessary rules for filing such appeal. Substitutionground ihat the High
appeal should not be readily iníerred. The right of a new lorum of
a vested being a creature of statute.
right to have one's appeal heard by a
specified number of
Similarly, no one has
matter of procedure. Sections 96,
100, 104 and 109 of the Code of Civiljudges since it is merely a
appeal on an aggrieved person in cases mentioned therein. Procedure confer right of
Order 41 deal with first Sections 96 to 99 and 107 read with
appeals.
II. RIGHT TO APPEALIS
ACREATURE OF STATUTE
The remedy of
arpeal is a creation of statute and is not an
Legislature in its wisdom thinks in a particular case that no inherent right of a person. If the
be held that the appeal should be provided, it cannot
legisleion is bad. [lshar Das v. State of Haryana, AIR 1975 P & H
A litigant may have:
a right to institute a suit urless specitically barred, but 29]
appeal unless conferred For filing a suit, right is not there is no right of
whereas since the tigh: of appeal is the required to be conferred by any statute
right lrom the statutory
such a right has
got to he conferred. lt does not inhere in a itigant.provision by which it is created,
Ihe right of
or acquired has to
be exercised only in the manner appeal conferred
taking away the vested right of appeal by making a prescribed.to thatLegislature can enact a lawV
The
provision effect or
intention to the contra"v. [Fratap
Narayan Agarwal v. Ram Narayan by expressing an
Allahabad 42 F. B.] Agarwal, AIR 1980
It is indeed axiomatic that a
pre-existing rignt to appeal is avestj nhi which inheres in a
party. Lis once originated gives birth to a vested right to take ttie lis to ts ultimate end
terminus a quo is due course of the or

be summed up as under.
existng law. Principles emergjiny irom the rulings can best
a) The legal pursuit of a rernedy, suit, appeal and second
appeal are really but sleps in a series of
proceedings all connected by an ntnnsic unily and are lo be
b) The right of appeal is not a matter of
regarded as one legal proceeding.
procedure but is a substantive right.
c) The institution of the suit carries with it the
are preserved to the
implication that all iighis of appeal then in force
partiesthereto till he rest of the career of ti:e Suit.
d) The right of appeal is a vested right and such a
the litigant and exisls as on and righl lo enler the superior Court accrues to
from the date the is commences and
aclually exercised when the adverse judgment is although it may be
the law prevailing at the date of pronounced such right is to be governedi by
the institution of the suit or
that prevails at the date of its proceeding and not by the law
decision or al the dale of the filing of the appeal
293
 e) This vested right of appeal can be taken away only by a subsequent enactment, f t so
provides expressly or by necessary intendment and not otherwise.
When a lis commences, all rights get crystalised and no clog upon a likely appeal can be put,
unless the law was made retrospective, expressly or by implication. [Sonya Dagdu V.
Manhu Dagdu, AIR 1980 Bombay, 62]

V. APPEAL IS CONTINUATION OF SuIT

An appeal is a continuation of suit. A decree passed by an appellate Court would be
construed to be the decree passed by the Court of the first
instance. Appeal is virtually rehearing
of the mater. The appellate Court posse[ses the same powers and duties as the original Court.
Once again the entire proceedings are before the appellate Court which can review the evidence
as a whole subject to a statutory limitations, if any, and can come to its own conclusion on such
evidence.
In Dayawati v. Inderijit, AIR 1966 SC 1423,
J.(as he then was) stated:
speaking for the Supreme Court, Hidayatuilah,
"An appeal has been said to be 'the right of entering a superior Court, and invoking its aid
and interposition to redress the error of the Court below.' The only difference between a suit and
an appeal is that an appeal only reviews and corrects the proceedings in a cause constituted but
does not create the
cause.
Moreover, where an appeal is provided by law and is filed against a decree or order passed
by a lower Court, the decision of the appellate Court will be the operative decision. The decree or
order passed by the appellate Court. It is obvious that when an
appeal is made, the appellate
authority can do one of the three things, namely: () it may reverse the order under appeal () it
may modify that order, and (ii)it may merely dismiss the appeal and thus confirm the order
Without any modification. In all these three cases after the appellate authority has disposed of the
appeal, the operative order is the order of the appellate authority whether it has reversed the
original order or modified it or confirmed it. (t is the appellant decision alone which subsists and
is operative and capable of enforcement.

V. SECTION 96, CPC

Section 96 reads as under:
) 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 jurisdictión to the Court authorized to hear appeals from the decisions of such Court.
i) An appeal may lie from an original decree passed ex pate.
in) No appeal shall lie from a decree passed by the Court with the consent of
parties.
iv) No appeal shall lie, excepl 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.

VI. WHO MAY APPEAL

The following persons are entitled to appeal under this section
i)A party to the suit who is aggrieved or adversely affected by the decree, or is such party is
dead, his legal representatives.
n) A person claiming under a party to the suit or a transferee of the interests of such party, who,
So far as such interest s concerned, is bound by the decree, provided his name is entered on
the record of the suit.
) A guardian ad litem appointed by the Court in a suit by or against a minor.
v) Any other person, with the leave of the Court,it he is adversely affected by the decree.
XI
VIL. WHO CANNOT APPEAL
f a party agrees not to appeal or waives his right to appeal, he cannot file an appeal and will
be bound by an agreement if otherwise such agreement is valid. Such agreement, however,
must be clear and unanbiguous. Whether a party has or has not waived his right of appeal
depends upon the facts and circumslances of each case. Similarly, where a parly has accepted
the benefts under deciee of the Court, he can be estopped from queslioning the legality of the

294
 decree. Finally, the vested right of appeal is destroyed if the Court to which an appeal lies is
abolished altogether without any forurm being subsituted in its place
VII.APPEAL AGAINST EX-PARTE DECREE (SECTION 96 (2)]
In an appeal against an ex parte decree the appellant can onty be heard on the merits of the
case. The appellate Court cannot go into the question as to why the appellant had not appeared on
the date of final hearing before the trial Court. fRajan Lal v. Rukmani Devi, 1979 AIL L. J. 12377
InSyed Mazhar Hussain v. Rafiq Hussain, AIR 1925 Oudh, 645 it was pointed that when a
specific remedy with a particular limited period of limitation is provided, the party must avail
himself of it and cannot make it a ground of appeal under the general provision granting him a
nght of appeal from an ex parte decree. This was also the view taken in Ganesh Das Verma v.
Harish Chandra [AIR 1934 Oudh, 131). In Rajjan Lal v. Rukamni Devi & Other [1979 A. L. J.
1237], following the decisions above mentioned, it was reiterated that in the appeal against the
decree the appellate Court cannot go into the question why the appellant had not appeared on
the date of final hearing before the trial Court. That is the scope of an application under Order 9,
Rule 13, CPC. An appeal against a decree cannot take the place of miscellaneous application for
setting aside an ex parte decree

IX. cONSENT DECREE (SECTION 96 (4

A consent or compromise decree is not appealable, but on proper grounds it may be set
aside by a separate suit.
No appeal will lie against an order recording a compromise when the parties settled their
disputes amicably and there was no contest about the terms of the compromise. The proper
remedy for an aggrieved party is to reopen the matter in the trial Court by way of review or
othewise.
The rule contained in Section 96 (3) of the Civil Procedure Code is based on the principle
that a person who gives his consent to a decree being passed against him, is later on estopped
from challenging the same. Therefore, once a decree is passed with the consent of parties and
the decree ex facie shows that both the parties had consented to it, no appeal can lie against
Such decree on the ground that the consent to such decree was nol free and was obtained by

fraud, misrepresentation, coerrioI), undue influence, etc.

In order to set ecide a consent decree on the ground that the consent was obtained by
is tofile a separate suit and not an appeal or an applicalion tor.
coercion, the proper iemedy
review against that decree or an application under Section 152 of the Code.
Court that his consent to the
If one of the parties to' the ktigation asserts before the appellate
decree was not free and;it was obtained under coercion,
the appellate Court obviously cannot
it uniess it allows both the parties to adduce additional
decide the dispute on he material before
fact. Such a procedure is not covered by Order 41, Rule 27 which is the
evidence to prove that
evidence is produced before the appellate Court. Such
only provision under which additional
evidence can be adduced properly in a separate suit for lhat purpose. [AIR 1970 Punj. 176]

X. NO APPEAL IN PETTY CASES ISECTION 96 (4))

bars
the Amendmernt Aci of 1999, sub-sectton (4)
New Section 96 (4) has been inserted by value of the
where t U N or
decrees passed in petty suits
appeals on facts from the thousand if the suits in which such
does not exceed ten rupces,
subject-matter of the original suit of small causes. The underlying
are the rnature cognizable
of bythe Court_
decrees afe passed Such restrictions are
in peity cases.
the said proVISIon is to reduce appeals
object in'enacting should not be encouraged lo appeal
in the interests of the litigants themselves. They
necessary
on facts in trivial cases

PRELIMINARY DECREE
DECREE WHERE NO APPEAL FROM
XI. APPEAL FROM FINAL
(SECTION 97] this
the comunencement of
Where any party aggrieved by preliminary decree passed after
a
in
from disputing its correctress
shall be precluded
Code does not appeal írom such decree, he
be preferred from the final decree.
any appeal which may and evidence led by parlies
is
Court without considering all issues
Recording of finding by
v. Sangram, AIR 2001 SC 2171)
erroneous and illegal. [Madhukar
 The passing of a linal decree
preliminary decree wll not affect he subsaquent to the institution of the appeal
Code making an
filed against maintainability of the against the
the final decree is appeal the appeal. There is no provision in the
not filod.
[Madhao Rao preliminary decree infructuous, if an
Paikaji v. Eknathrao, 194 N. L. J. appeal against
XI. FORM OF APPEAL [RULES 259)
Sections 96 to 99-A enact1-4 OF ORDER 41]
lays down the the substlantive law
procedure as
regards First
appeal denote two distinct relating therelo. The expressions appealAppeals, while Order 41
the decision of an things. The appeal is the and memorandun of
inferior Court. The judicial examination by a higher Court of
is invited. Formemorandum of appeal contains the
the judicial
examination
the Court, it is grounds on which
required that a purposes of limitation and for
may be said to be memorandum of appeal shall be filed. purposes of the rules ot
validiy
a) t must be in the form presented, the following
In order that an
appeal
of a memorandum requirements must be complied with
decree appealed from; setting forth the grounds of
b) lt must be signed the objections to the
by appellant or his
c) t must be presented to the pleader,
d) The memorandum must be Court or to such officer as it appoints in that behalf,
e) it must be accompanied by a certified cöpy of the
with it, and accompanied by a cerlified copy of the judgment uniess
the
decree .

Court dispen ses

)Where the appeal
is against money decree, the
a
amount or furnish the
security in respect thereof as perappellant
the
must depositthe decretal
XiN. direction of the Court.
LIMITATION JARTICLE 116,
The Code of Civil
LIMITATION
ACT, 1963]
limitation for filing an Procedure confers a right of appeal, but does not
appeals. t states that an
appeai. The Limitation Act, 1963, prescribe period of
appeal however, provides the period for filng
ninety days and in any other against a decree or order can be filed in a High Court within
Court within thirty
appealed against. days írom the date of decree or order
XIV. STAY OF PROCEEDINGS AND EXECUTION [RULES
Rule 5 provides for 5 -8,
stay of execution of decree or order.
ORDER 41)
the appellate Court After
may order an
appeal has been
decree. But mere iling of an stay of proceedings under the decree or the execution of iied,
be granted if sufficient appeal does not suspend the such
the interests of grounds are established. The object operation of a decree. Stay may
both, the underlying Rule 5 is to safeguard
holder to reap the fruits decree-holder
of his decree.
and the
judgment-debtor. t is the
right of the decree-
merely get baren success in case his
to a Similarly, it is the
right the judgment-debtor not
of
thus strikes a just and appeal is allowed
reasonable balance between these twoby the appellate Court. This rule
conditions must, therefore, be satisfied opposing rights. The following
before
a) the applicalion has been made without stay granted by the Court-
is

b) substantial loss will result to the unreasonable delay,

applicant unless such
c)security for Ihe due performance of the decree or orderorder
has
is made, and
been given by the
XV. NEW PLEAS
applicant.
The general rule is that the appellant cannot be allowed
to
appeal a new
ground, nor can he raise in his memorandum of raise in his memorandum of
had been taken in the trial
Court, might have been cured appeal any objection which. it it
that there are certain by appropriale amendment. It is true
exceptions to this rule such as
Judicata, etc., which can be subslantiated on the facts question of law, question of limitation, res
though of law depends upon questions of fact for its already on the record. But a matter which
determination
time in appeal
[Mohammed Abdul Razack v. Syed Meera Ummal,cannot be1 M.raised for the first
(1966) L. J. 565]
XVI PROCEDURE AT HEARING
[RULES 16-21, ORDER 41]
a) Right to begin [Rule 16]
The appelant has
right to begin. After hearing the appellant in
if the Court finds no support of the appea,
substance in the appeal, it may dismiss the
appeal at once without
296
 calling upon the respondent to reply. But if the appellate Court does not dismiss the
appeal at once, it will hear the respondent against the appeal and the appellant shall then
be entitled to reply.
b) Dismissal for default and restoration [Rules 17-19
f the appellant does not appearwhen the appeal is called on for hearing. he Court
may dismiss the appeal in default. The Court, however, cannot dismiss it on merits. The
Court may also dismiss the appeal where the notice has not been served to the
for
respondent non-payment process fee by the appellant or where the notice is
of
returned unserved and the appellant has failed to deposit process fee for serving notice
to the respondent once again. The appeal, however, cannot be dismissed although the
notice has not been served upon the respondent, if the respondent appears when he
appeal is called on for hearing.
Where the appeal has been dismissed for default or for non-payment of processfees
the appellant may apply to the appellate Court for the restoration of appeal. On sufficient
cause being shown, the appellate Court shall restore the appeal on such terms as to
costs or otherwise as it thinks fit. The Court may require the counsel to go on for heaning
after restoralion and may refuse to restore the matter for further adjoumment.
c)Ex-parte hearing and rehearing IRules 17-21]
Where the appellant appears and the respondent does not appear when the appeal is
called on for hearing, the appeal shall be heard ex parte. If the judgment is pronounced
against the respondent, he may applyto the appelate Court for rehearsing of the appeal.
fhe satisfies the Court that the notice of appeal was not duly served upon him or that he
was prevented by suficient cause from appearing when the appeal was called on for
hearing. the Court shall rehear lhe appeal on such terms as to costs or otherwise as it
thinks fi. However, ordinarily, no ex parte decree should be passed by a Court excepton
reliable evidence.
d) Addition of respondent [Rule 20]
Where il to the appellate Court at the hearing of the appeal that any person
appears
who was a party te the suit in the trial Court but who has not been made a party lo the
appeal is interested in the result of the appeal, the Court may adjoum the hearing of the
appeal and irect that such person be joined as a respondent. Such adition of a
respondent cannot be ordered after the expiry of the period of limitaticn for appeal, unless
the reesons are recorded for doing so. The Court can also make an order as to costs. The
object of Rule 20 is to protect parties to the suit who have not been made respondents in
the appeal from being prejudiced by modilications being made behind their back in the
decree under appeal. Over and above Rule 20, the appellate Court has inherent power to
add a party respondent or to Iranspose a parly from one category to another.

XVII. DECISIONS WHERE APPEAL HEARD BY TWO OR MORE JUDGES {SECTION 98]
i) Where an appeal is heard by a Bench of two or more judges, the appeal shall be decded
in accordance with the upinion of such Judges or of the majority (ií any) of such Judges
i) Where there is no such majority which concurs in a judgment varying or reversing the
decree appealed from. such decree shall be confirmed:
Providedthat where the Bencii hearing the áppeal is composed of two or other even
number of Judges belonging lo a Court consisting of more Judges than those constilulng
the Bench, and the Judges cornposing the Bench difter in opinion on a point of law, they
may state the point of law upon vhich they dilfer and he appeal shal then be heard upon
that point only by one or more of the other Judges, and such point shall be decided
according to the opinion of the majority (f any) of the Judges who have heard the appeal
including those who first heard it.
i) Nothingin this section shall be deemed to alter or otherwise atfect any provision of the
lelters patent of any High Court
Where, however, there is difference of opinion on a point of law between the
members of a Bench composed of two judges, they may state the point of law upon
which they dilfer for decISIon by a third or more of the olher Judges and such point shal
be decided according to the opinion of he majorily of the Judges who have heard the
appeal, including those who first heard it.
297
 A finding of fact rocorded by the Courts
below cannot be interfered with when there is
a difference of opinion between the Judges
section of
(2) Section 98 will be applicable as
constituting the Bench. In such a case sub-
diference of opinlon and not to the result respects
that finding alone on which there
is a
of appeal itself when in the opinion
Judge the lower Court has misapplied the law on the facts found but of the
does not concur in that view. Where the other Judge
the opinion of the third Judge on the
severable from his opinion on the legal point is
finding of fact that becomes conclusive by the
application of Section 98 (2) irespective of the opinion recorded the third
[Baboo Ram v. Ishrat Ali, AIR 1975 All. p. by Judge.
80)
XVII. NO DECREE TO BE
REVERSED OR MODIFIED FOR ERROR OR
AFFECTING MERITS OR JURISDICTION 1RREGULARITY NOT
No decree shall be reversed
[SECTION 99]
appeal on account of any misjoinder
or
substantially varied, nor shall any case be remanded, in
error, defect or
or
non-joinder of parties or causes of action or any
iregularity in any
proceedings in the suit, not affecting the
or the
jurisdiclion of the Court: merits of the case
Provided that nothing
in
this section shall apply to non-joinder of a necessary
Where parties
do not appear to have been parny
misjoinder defendants or cause of
of prejudiced any manner by an alleged
99, CPC. [Ram Chander Singh v. action, the defect, if any, is completely cured by Section
Raghunandan Ahir, 1949 R. D, 91]
XIX. NO APPEAL UNDER
SECTION 47 TO BE REVERSED OR
DECISION OF THE CASE IS MODIFIED UNLESS
PREJUDICIALLY AFFECTED [SECTION 99-A]
Withoul prejudice to the generality of the provisions of Section 99, no order under
47 shall be reversed or Section
substantialy varied, on account of any error, defect
any proceedings relating to such or irregularity in
order, unless such error, defect or
prejudicially affected the decision of the case. irregularity has

XX. DECREE IN APPEAL

Date and contents of Decree
which the
() The decree of the appellate Court shall bear the date on
-

judgment pronounced;
was
(i) it shall contain the number of the appeal, the names
and descriptions of the
appellant and respondent, and a clear
granted or other adjudication made; (ii) it shall also specification of the reliet
state the amount of costs incurred in the
appeal, and by whom or out of what
costs in the suit are to be property, and in what proportions such costs and the
paid; and (iv) finally, it shall be signed and dated by the Judge or
Judges who passed it. Where there is difference of
appeal the dissenting Judge need not sign the decree.opinion between the Judges hearing the
[Order 41, Rule 35)
XXI APPEAL TO SUPREME COURT
Sections 109 and 112 provide for
appeals lo the Supreme Court in certain
Order 45 prescribes procedure for such
appeals. circumstances
XXH. QUESTIONS OF PREVIOUS YEARS'
HJS, HARYANA JS ETC.] EXAM-[DJS, RJS, UP PCS (J), MPPCS (J), BJE,
1. 'Ualess a right of appeal is clearly given by statute, it does nol
exist' Cornment
appellale Court reverse a decree on the
yround of misjoinder of
can an

HJS-2001] paries? {250 Words,

2. Discuss the
provisions
of the Civil Procedure Code
relating to First
plea can be raised in an Appeal. [250 Words,Appeal
Appeal. Whether a new
and Second
3. Under which sections
of CPC are Civil first BJE-1987
miscellaneous appeals filed? [20 Words, Jharkhandappeals, civil second appeals and
JE-2001)

298