What is appeal?

What are the provisions for filing first appeal and

second appeal?
Table of Contents
• Introduction
• Meaning of appeal
• Essentials of appealing cases
• Right to appeal
• One right to appeal
• No right to appeal
• Distinction between suit and appeal
• Garikapati Veeraya v. Subbiah Chaudhary
• The distinction between appeal and revision
• First appeal
• Second appeal
• Conversion of an appeal into revision
• Who may appeal?
o Appeal by one plaintiff against another plaintiff
o Appeal by one defendant against another defendant
• Who cannot appeal?
• The appeal against ex parte decree
• No appeal against consent decree
• No appeal in petty cases
• The appeal against Preliminary Decree
• No appeal against a finding
• The appeal against a dead person
• Forms of appeal
• Forum of appeal
• Presentation of appeal
• Summary dismissal
• Doctrine of merger
• Cross objections
• Powers of Appellate Court
• Duties of an appellate court
• Judgment
• Decree
• Letters patent appeal
• Appeal to SC
• Conclusion
• References

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

Where a cause is created and issues are disputed on
questions of both facts and law, it is known as a suit.
A suit is an attempt to achieve an end via a legal procedure
instituted in a Court of law for enforcing one’s right/claim.
A suit is filed in the lowest Court in its respective hierarchy
for trial.
An appeal only reviews & corrects the proceedings in a
case already constituted but does not create a cause.
As per Dayawati v. Inderjit, it is the continuation of a
suit in certain situations.
An appeal is filed in an Appellate Court for the
purposes of reviewing the decision of the inferior
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

An appeal lies to a Superior Court from every original decree
unless expressly barred.
A right of appeal is one of substantive nature conferred by the
statute.
An appellate jurisdiction can be exercised only through a
memorandum of appeal filed before the Appellate Court by
the aggrieved party and cannot be exercised suo motu.
An application for appeal is maintainable on legal grants as
well as on question of fact.
An appeal abates if the legal representative of the deceased are
not brought on record within the time allowed by law.
A Court of appeal can, in the exercise of its powers, set aside
the findings of facts of subordinate Courts.
A revision to High Court is available only in those
cases and against such orders where no appeal lies.
There is no such right of revision because revisional
power is purely discretionary.
The revisional jurisdiction can be exercised suo
motu as well.
An application for revision is maintainable on the
ground of jurisdictional error.
A revision may not abate and the High Court has a
right to bring the proper parties before the Court at
any time.
The High Court or the revisional Court cannot, in
the exercise of its revisional powers, set 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.