Introduction

An appeal is a remedial concept determined as an individual’s right to seek justice against an

unjust decree/order via referring it to a Superior Court. Sections 96 to 99A; 107 to 108
& Order 41 of the  Code of Civil Procedure, 1908 deal with appeals from original decrees
known as First 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

An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum,
on questions of law & fact with jurisdiction to confirm, reverse, modify the decision or
remand the matter to the lower forum for fresh decision in compliance of its directions. The
essentials of appealing cases can be narrowed down to 3 elements:

 A decree passed by a judicial/administrative authority;

 An aggrieved person, not necessarily a party to the original proceeding; and

 A reviewing body instituted for the purposes of entertaining such appeals.

Right to appeal

The right to appeal is a statutory & substantive one. The statutory nature of an appeal implies
that it has to be specifically conferred by a statute along with the operative appellate
machinery as opposed to the right to institute a suit, which is an inherent right. It is
substantive in the sense that it has to be taken prospectively unless provided otherwise by any
statute. This right could be waived off via an agreement, and if a party accepts the benefits
under a decree, it can be estopped from challenging its legality. However, an appeal accrues
to the law as found on the date of the institution of the original suit.
One right to appeal

Section 96 of the CPC provides that an aggrieved party to any decree, which was passed by a
Court while exercising its original jurisdiction, is conferred with at least one right to appeal to
a higher authority designated for this purpose, unless the provisions of any statute make an
exception for it. Section 97, 98 and 102 of the CPC enumerate certain conditions under which
no further appeal is permitted, hence attributing to a single right of appeal.

No right to appeal

No person has a right to appeal against a decision unless he is a party to the suit, except on
special leave of the Court. An essential element to be taken into account while considering
one’s right to appeal is whether such person is adversely affected by the decision/suit, which
is a question of fact to be determined in each case. 

Distinction between suit and appeal

Suit Appeal

An appeal only reviews & corrects the

Where a cause is created and issues are disputed on
proceedings in a case already constituted but does
questions of both facts and law, it is known as a suit.
not create a cause.

A suit is an attempt to achieve an end via a legal

As per  Dayawati v. Inderjit, it is the continuation
procedure instituted in a Court of law for enforcing
of a suit in certain situations.
one’s right/claim.

An appeal is filed in an Appellate Court for the

A suit is filed in the lowest Court in its respective
purposes of reviewing the decision of the inferior
hierarchy for trial.
Court.

Garikapati Veeraya v. Subbiah Chaudhary

In the instant case, it was held that the pre-existing right to appeal to the Federal Court
continued to exist and the old law which created such a right also continued to exist. It
construed to the preservation of this right while recognizing the change in its judicial
machinery from the Federal Court to the Supreme Court. However, the continuance of the old
law is subject to the provisions of the Constitution.
The distinction between appeal and revision

Appeal  Revision

A revision to High Court is available only in

An appeal lies to a Superior Court from every original
those cases and against such orders where no
decree unless expressly barred.
appeal lies.

A right of appeal is one of substantive nature conferred There is no such right of revision because
by the statute. revisional power is purely discretionary.

An appellate jurisdiction can be exercised only through

a memorandum of appeal filed before the Appellate The revisional jurisdiction can be exercised
Court by the aggrieved party and cannot be exercised suo motu as well.
suo motu.

An application for appeal is maintainable on legal An application for revision is maintainable on

grants as well as on question of fact. the ground of jurisdictional error.

An appeal abates if the legal representative of the A revision may not abate and the High Court
deceased are not brought on record within the time has a right to bring the proper parties before
allowed by law. the Court at any time.

The High Court or the revisional Court cannot,

A Court of appeal can, in the exercise of its powers, set in the exercise of its revisional powers, set
aside the findings of facts of subordinate Courts. aside the findings of facts of subordinate
Courts.

First appeal

Section 96 of the CPC provides that an appeal shall lie from a decree passed by any Court
exercising original jurisdiction to the authorized appellate Courts, except where expressly
prohibited. A combined reading of Sections 2(2), 2(9), & 96 of the CPC indicates that a
regular First appeal may/may not be maintainable against certain adjudications. 

Second appeal
Section 100 provides for a second appeal under this code. It states that an appeal shall lie to
the High Court from a decree passed in the first appeal by a subordinate Court, excepting the
provisions speaking to the contrary. The scope of exercise of jurisdiction under this section is
limited to a substantial question of law framed at the time of admission of appeal or
otherwise. 

Conversion of an appeal into revision

In the case of Bahori v. Vidya Ram, it was held that since there’s no specific provision under
the CPC for the conversion of an appeal into a revision or vice versa, the exercise of power
by the Court has to be only under Section 151. Further, the inherent powers of the Court,
though discretionary, permit it to pass such orders as may be required to meet the ends of
justice. The only precondition to such conversion is that due procedure is adhered to during
the filing of the original appeal/revision.

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/prejudicially affected by it via special leave of the appellate Court.

Appeal by one plaintiff against another plaintiff

In Iftikhar Ahmed v. Syed Meherban Ali, it was concurred that if there exists a conflict of
interest between plaintiffs and it is necessary to resolve it via a Court to relieve the defendant,
and if it is in fact decided, it will operate on the lines of res judicata between co-plaintiffs in
the subsequent suit. 

Appeal by one defendant against another defendant

The rule in a case where an appeal is preferred not against the originally opposite parties but
against a co-defendant on a question of law, it could be allowed. Such an appeal would lie
even against a finding if it’s necessary while operating as res judicata (a matter that has been
adjudicated by a competent Court and hence may not be pursued further by the same parties).

Who cannot appeal?

A party who waives his/her right to prefer an appeal against a judgment cannot file it at a
later stage. Further, as inferred from Scrutton L.J.’s words:

“It startles me that a person can say the judgment is wrong and at the same time accept the
payment under the judgment as being right….In my opinion, you cannot take the benefit of
judgment as being good and then appeal against it as being bad”,

If a party ratifies any decision of the Court by accepting and acknowledging the provisions
under it, it may be estopped from appealing that judgment in a higher forum. 

The appeal against ex parte decree

In the first appeal under Section 96(2), the defendant on the merits of the suit can contend
that the materials brought on record by the plaintiff were insufficient for passing a decree in
his favour or that the suit was not otherwise maintainable. Alternatively, an application may
be presented to set aside such ex parte decree (it is a decree passed against a defendant in
absentia). Both of these remedies are concurrent in nature. Moreover, in an appeal against an
ex parte decree, the appellate court is competent to go into the question of the propriety or
otherwise of the ex parte decree passed by the trial court. 

No appeal against consent decree

Section 96(3), based on the broad principle of estoppel, declares that no decree passed by the
consent of the parties shall be appealable. However, an appeal lies against a consent decree
where the ground of attack is that the consent decree is unlawful being in contravention of a
statute or that the council had no authority. 

No appeal in petty cases

Section 96(4) bars appeals except on points of law in cases where the value of the subject-
matter of the original suit does not exceed Rs. 10,000, as cognizable by the Court of Small
Causes. The underlying objective of this provision is to reduce the number of appeals in petty
cases.

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.

Forms of appeal

Appeals may be broadly classified into two kinds:

 First appeal; and

  Second appeal.
The sub-categories under appeals are:

 Appeal from original decree;

 Appeal from order;

 Appeal from appellate decree/second appeal/to High Court;

 Appeal to the Supreme Court.

Forum of appeal

It is the amount/value of the subject-matter of the suit which determines the forum in which
the suit is to be filed, and the forum of appeal. The first appeal lies to the District Court if the
value of the subject matter of the suit is below Rs. 2,00,000; and to the High Court in all other
cases.

Presentation of appeal

Order 41 provides the requirements for a valid presentation of an appeal that has to be made
by way of a memorandum of appeal which lays down the grounds for inviting such judicial
examination of a decree of a lower court.

Summary dismissal

In Hanmant Rukhmanji v. Annaji Hanmant, 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.

Doctrine of merger

Any decree passed by the appellate Court is a decree in the suit. As a general rule, the
appellate judgment stands in the place of the original judgment for all purposes, i.e. the
decree of the lower Court merges in the decree of the Superior Court. In-State of Madras v.
Madurai Mills Co Ltd., it was held that this doctrine is not a rigid one with universal
application, but it depends on the nature of the appellate order in each case and the scope of
the statutory provisions conferring such jurisdiction. 
Cross objections

According to Order 41, R.22(1) & 33, cross-objections can be made by the defendants.
They’re necessary only when some directions are issued against them that are to be
challenged on the basis of which part relief has been granted to the plaintiff even without
such cross-objections.

Powers of Appellate Court

Section 107 prescribes the powers of an appellate Court:

 To remand a case;

 To frame issues & refer them for trial;

 Reappraisal of evidence when a finding of fact is challenged before it;

 To summon witnesses;

 Can reverse inference of lower Court, if not justified;

 Appreciation of evidence.

Duties of an appellate court

 The appellate Court has a duty to analyze the factual position in the background of
principles of law involved and then decide the appeal.

 To provide cogent reasons for setting aside a judgment of an inferior Court. 

 To delve into the question of limitation under Section 3(1) of the Limitation Act.

  To decide the appeal in compliance with the scope & powers conferred on it under
Section 96 r/w O.XLI, R.31 of the CPC.

Judgment

Section 2(9) states that a “judgment” refers to the statement given by the Judge on the
grounds of a decree/order.

Decree
Section 2(2) provides that a “decree” is a formal expression of an adjudication which
conclusively recognises the rights of the parties with any of the disputed matters in a suit, and
maybe preliminary/final. It includes the rejection of a plaint under Section 144 but does not
include adjudication that’d result in an appeal from order; or any order of dismissal for
default.

Letters patent appeal

Section 100A expressly bars a Letters Patent Appeal from an order of a learned Single Judge
of the High Court, on/after 01/07/2002, in an appeal arising from an original/appellate decree.
The bar is absolute & applies to all such appellate orders.  

Appeal to SC

Article 133 of the Constitution of India & Section 109 of the CPC provides the conditions
under which an appeal could be filed in the Supreme Court:

 From a judgment, decree, or final order of the High Court;

 A case pertaining to a substantial question of law of general significance;

 The High Court opines it to be fit for the Supreme Court to deal with such a
question.

Conclusion

Appeals are recognized as statutory rights of persons aggrieved by any decision of an inferior
court in the interest of justice. First appeals are a form of appeal prescribed under the Code of
Civil Procedure. The period of limitation in case of an appeal to the first appellate authority is
90 days where it lies to the High Court. Finally, it can be concluded that the provisions of the
CPC extensively deal with the substantive as well as procedural aspects relating to all kinds
of appeals, while making express modifications in order to be accommodative of the more
specific legislation.