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APPEALS
(O.41 to 45, Ss.96 to 112)
O.41, (Rr.37) Appeals from Original Decree
O.42, (Rr.3) Appeals from Appellate Decree
O.43, (Rr.2) Appeals from Orders
O.44, (Rr.3) Appeals by Indigent Person
O.45, (Rr.15) Appeals to the Supreme Court

We can discuss about appeals under the following heads:

1. Meaning of Appeal
2. Memorandum of Appeal
3. Right to Appeal
4. Who may file Appeal?
5. When can appeal be allowed?
6. When can appeal not be allowed?
7. Kinds of Appeal.

1) Appeal: - In general meaning, the word appeal means that “it a complaint
made to higher court by the aggrieved party”, it is not defined in CPC. The
plaintiff files a suit against the defendant for a cause of action before the
trial court. The trail court enquires into the matter and comes to a
conclusion and passes a decree either in favour of the plaintiff or in favour
of defendant depending upon the evidences produced before it.

Whereas, if suit is decreed in favour of plaintiff, the defendant can

appeal to higher court against the decree. The person who files appeal is
called appellant. If the defendant files an appeal he is known as “Appellant/
Defendant” vice a versa “Appellant/ Plaintiff”. Whereas, the party in whose
against appeal filed is called “Respondent/Plaintiff” vice versa Respondent/
Defendant”. Appeal is statutory relief under provisions of CPC and it is not
inherent right to the subject.

2) Memorandum of Appeal: - Order 41, R.1 (1) provides that every appeal
shall be preferred in the form the memorandum signed by the appellant or
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his pleader and presented to the court or to such officer as it appoints in his
behalf. Memorandum shall be accompanied by a copy the judgement. In
case, two or more cases tried together and passed common judgment, the
appellate court dispense with the filing of more than one copy of judgement.

Contents of Memorandum: - O.41, R.1(2), the party who is aggrieved

by a decree or an order of court, appeals to the appellate court by presenting
a memorandum of appeal which sets forth the grounds of objection to the
decree or order appealed against. Memorandum of appeal shall set forth
concisely and under distinct heads, the grounds of objection to the decree
appealed from without any argument or narrative and such grounds shall be
numbered consecutively. The memorandum of appeal consists of the
following particulars -

(i) Name of the appellate court,

(ii) appeal number and year in decreed suit number,
(iii) Cause title (both courts),
(iv) body of memorandum of appeal (description of parties, grounds of
objection on which it is preferred,
(v) prayer (relief) and
(vi) signature.
3) Right to Appeal: - A person cannot file an appeal from a decision as a
matter of right. Right of appeal is not an inherent right. When it is
conferred by a statue, it will become a vested right. There is a distinction
between right to file a suit and a right to file an appeal. Right to file a suit is
an inherent right unless it is barred by a specific statute. But right to file an
appeal is not a vested right unless it is provided by law (Gangabai vs. Vijay
Kumar AIR 1974 SC 1126)

4) Who may appeal: - An appeal may be preferred by any one the following
person(s) having legal grievance against a decision/ decree/ judgement of a
lower court –

i) Any party to the suit adversely affected by the decree,

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ii) Any transferee of the interest of such party, whose interest is

concerned is bound by the decree provided his name is entered on
the record of the suit,

iii) As auction purchaser may appeal from an order in execution

setting aside the sale on the ground of fraud.

No person, unless he is party to the suit is entitled to appeal.

However, a person who is not a party but who is not a party but who is
aggrieved by the judgement and if he seeks and gets leave of the court to
prefer an appeal against the judgment can also appeal.

5) When can an appeal be allowed: - Section 96 of CPC provides that an

appeal shall lie from every decree passed by any court exercising original
jurisdiction to the appellate court.

An appeal shall lie from an original decree passed ex-parte

An appeal shall lie from the following orders:

a) Order u/s 35A of CPC (compensatory costs i/r/o false or

vexatious claims or defences – S.35 discussed about costs)

b) Order u/s 91 or 92 of CPC refusing leave to institute a suit of

the nature referred in section 91 or 92 (S.91 reg. to public
nuisances and other wrongful acts affecting the public, S.92
reg. to the Public Charities)

c) Order u/s 95 (Compensation for obtaining arrest, attachment

or injunction on insufficient grounds)

d) Order under any of the provisions of the Code imposing a

fine or directing arrest or detention in the civil prison of any
person except where such arrest or detention is in execution
of a decree,

e) Order made rules from which an appeal is expressly allowed

by rules (S.104 of CPC – Orders from which appeal lies).

6) When can Appeal not be allowed: -

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i) appeal shall not be allowed from a decree passed by the court with
consent of parties (S. 96 – Appeals from Original Decree),

ii) no appeal shall lie except on question of law from a decree in any
suit of the nature cognizable by SCC when amount of value of the
subject matter of the original suit does not exceed Rs.10,000/-
{S.96(4)},

iii) where any aggrieved party did not appeal against the preliminary
decree, he lost his right to file an appeal after it final decree (S.97
of CPC – Appeal from final decree where no appeal from preliminary
decree),

iv) a decree passed by the competent court on merits on account of

any mis-joinder or non-joinder of parties or causes of action or any
error, defect or irregularity in any proceedings in the suit, not
affecting the merits of the case or the jurisdiction of the Court.

7) Kinds of Appeals: - appeals may be classified under the following heads –

i) appeals from original decrees (Ss.96 – 99, O.41),

ii) appeals from appellate decree or Second Appeals (Ss.100 – 103,
O.42),
iii) appeals from Orders (Ss.104 – 106, O.43, R,1 & 2),
iv) appeals to the Supreme Court (Ss.109 – 112, O.45)

I) Appeals from Original Decree (O.41, Rr.37 & Ss.96-99):

The right to prefer an appeal from the judgment of the court of first
instance is derived from the provided the law gives him the right of appeal.

Generally, after passing the decree a successful party in a litigation

proceeds to a court of execution for reaping benefit of his decree but the
unsuccessful party in litigation comes to court of appeals to have the decree
set aside provided by law gives him the right of appeal. {Only aggrieved
party can file the appeal (Baldev Singh vs. Surinder Mohan Sharma (2003) 1
SCC 34}.
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Stay of Proceedings and of Execution:

O.41, R.5 an appeal shall not operate as a stay of original proceedings

under a decree or order appealed from and execution proceedings in decree
and judgement unless appeal court orders as such. The appeal court may
order stay of proceedings or execution if there are sufficient reasons. The
person against whom the decree is passed by the lower court can make an
application to the same court for stay of further proceedings, the court shall
not make a stay order unless the court is satisfied by the following facts:

i) substantial loss may result to the party applying for the stay of execution,
ii) the application has been made without unreasonable delay and
iii)the security has been given by the applicant for appearance of the decree.

Procedure on Admission of Appeal:

O.41, R.9 where memorandum of appeal is admitted, it shall be

registered in book of appeal with date of presentation of appeal,

(R.10) The court may demand security from the appellant for the cost
of appeal. If, the appellant is residing outside India, the court shall demand
such security in all cases in which the appellant is residing out of India, and
is not possessed of any sufficient immovable property withing India other
than the property (if any) to which the appeal relates. The security is not
furnished withing prescribed time, the court shall reject the appeal (O.41,
R.10(2). Further, if the appellant does not appear on the day fixed for
hearing, the court may dismiss the appeal (O.41, R.11(1).

The appeal court may fix a day for hearing the appeal. The appellant
will be heard first. If the court finds no grounds in case, it may dismiss the
appeal. If appeal is not dismissed, it shall hear the respondent after issue
and serve notice to him (O.41, R.14). If the appellant does not appear on the
day fixed for hearing, the appeal shall be dismissed (O.41, R.17(1). Per
contra, if the respondent doe not appear the appeal may be heard ex-parte
and pass decree by the appellate court (O.41, R.17(2).
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Cross Objection:

O.41, R.22 deals with cross objection. The respondent will generally
be supporting the decree. The decree may contain some findings against
him. With regard to those findings in the decree, he is entitled to file a
separate appeal. In such a case, the respondent can raise his objections
against those findings in the decree against him. But such objections can
be filed by the respondent only after the appeal is filed.

Power of the Appellate Court:

The appellate court has following powers:

i) to determine finality of case by passing decree,
ii) to remand a case to lower court by directing what issues to be
tried,
iii) to frame issues and refer them for trial in case, if the lower court
has omitted to frame or try any issue and

iv) to take additional evidence which ought to have been omitted

II) Appeals from Appellate Decree or Second Appeal (O.42, Rr.3 &
Ss.100–103):
It means second appeal arises from or against the appellate decrees.
Whereas, a second appeal shall lie before high court if first appeal court is
subordinate to high court.

Section 100 (1) says that second appeal shall lie to the High Court
from every decree passed in appeal by any court subordinate to the HC if,
the HC is satisfied that the case involves a substantial question of law.
According to S.100(2) an appeal may lie from an ex-parte appellate decree.
S.100(3) Memorandum of Appeal shall precisely state the substantial
question of law involved in the appeal. S.100(4) HC is satisfied that a
substantial question of law is involved in any case, it shall formulate that
question. S.100(5) appeal shall be heard on the question so formulated and
the respondent shall be allowed to argue that the case does not involve any
question of law.
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Present section 100 was substituted by amendment Act No.104 of

1976, s.37 (wef 1.2.77). The scope of old provision for appeal (decision being
contrary to law, filed in determining material facts, substantial errors etc.) is
wider than present new provision (only ground for second appeal is that
involve substantial question of law) by restricting drastically. The term
substantial question of law has been considered by the SC in Sir Chunilal
Mehta & Sons ltd. Vs. The Century Spinning & Mfg. Co. (AIR 1962 SC 1314) .
SC observed that substantial question of law mean “one which is of general
public importance or which directly and substantiality affects rights of the
parties and which has not been settled by the SC or which is not free from
difficulty or which calls for alternative view. So, the words substantial
question of law do not necessarily mean that the question of law involved
must be of general importance.

Generally, the appellant will not be allowed to raise any new plea in
the second appeal. But, if the objection goes to the root of the case, the
court may allow it.

Section 102 says that no second appeal shall lie in any suit if –

i) no SA shall lie from decree when the subject matter of the original
suit is for recovery of money not exceeding Rs.25,000/-. And

ii) decree of SCC

No SA can be preferred on question of facts. But if a SA is already before

the HC it may decide issue of fact.

III) Appeals from Orders (O.43, R2 & Ss.104-106):

According to Order 43, R.1 of the Code an appeal shall lie from the
following orders under the provisions of section 104, viz.,

a) an order u/r 10 of O.7 returning a plaint to be presented to the

proper court (except where the procedure specified in R.10-A of O.7
has been followed),

b) Omitted,
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c) An order u/r.9 of O.11 rejecting an application (in a case open to

appeal) for an order to set aside the dismissal of a suit,

d) An order u/r.13 O.9 rejecting an application (in a case open to

appeal) for an order to set aside a decree passed ex parte,

e) Omitted,

f) An order u/r 21 of O.11,

g) Omitted,

h) Omitted,

i) An order u/r 34 of O.21 on an objection to the draft or a document

or of an endorsement,

j) An order u/r 72 or r 92 of O.21 setting aside or refusing to set

aside a sale,

ja) an order rejecting an application made under sub-rule (1) of R. 106

of O.21 provided that an order on the original application that is to
say the application referred to in sub-rule (1) of R.105 of that Order is
appealable)

k) An order u/r 9 of O.22 refusing to set aside the abatement or

dismissal of a suit,

l) An order u/r 10 of O.22 giving or refusing to give leave,

m) Omitted

n) An order u/r 2 of O.25 rejecting an application (in a case open to

appeal) for an order to set aside the dismissal of a suit,

na) an order u/r 5 or 7 of O.33 rejecting an application for permission

to sue as an indigent person,

o) Omitted,

p) Orders in interpleader suit u/r 3, 4 or 6 of O.35.

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q) An order u/r 2, 3 or 6 of O.38 (Arrest and Attachment before

Judgment),

r) An order u/r 1, 2, 2A, 4, 10 of O.39 (Temporary Injunctions and

Interlocutory Orders),

s) An order u/r 1, 4 of O.40 (Appointment of Receiver),

t) An order of refusal u/r 19 of O.41 to readmit or u/r 21 of O.41 to

rehear an appeal,

u) An order u/r 23 or 23-A of O.41 remanding a case where an appeal

would lie from the decree of the Appellate Court,

v) Omitted

w) An order u/r 4 of O.47 granting an application for review.

Section 104(1) of CPC provides that an appeal shall lie from the following
orders and save as otherwise expressly provided in the body of this Code or
by any law for the time being in force from no other orders:

i) an order u/s 35A (Compensatory Costs in respect of vexatious

claims or defences)
ii) an order u/s 91 or 92 refusing leave to institute a suit of the
nature referred to in S.91 (suits against public nuisances and
other wrongful acts affecting the public) or S.92 (suits against
public charities) as the case may be,

iii) an order u/s 95 (compensation for obtaining arrest,

attachment or injunction on insufficient grounds),
iv) an order under any of the provisions of this Code imposing a fine
or directing the arrest or detention in the Civil prison of any person
except where such arrest or detention is in execution of a decree
and

v) any order made under rules from which an appeal is expressly

allowed by rules.
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However, no appeal shall lie against any order U/s 35A on the ground
that no order or an order for the payment of a less amount ought to have
been made.

As per S.140(2) of the Code, no appeal shall lie from any order passed
in appeal under this rule.

IV) Appeal to the Supreme Court (Order 45 (R.16) and Ss.109 – 112):

An appeal shall lie to the Supreme Court from any judgment, decree
or final order in a civil proceeding of High Court subject to provisions in
Chapter IV of Part V of the Constitution (the union judiciary – art.124 – 151)
and rules as may from time to time be made by the Supreme Court
regarding appeals from the High Courts of India and to the provisions
hereinafter contained, if the High Court certifies –

(i) that the case involves a substantial question of law of general

importance and

(ii) that in the opinion of the High Court the said question needs to be
decided by the Supreme Court.

Procedure for Appeals to the Supreme Court:

1) Application for Special Leave to Appeal,

2) Admission of Appeal,

3) Powers of the Court pending appeal in the Supreme Court and

4) Procedure to enforce order of the Supreme Court.

Right to Appeal: Right to appeal to the SC is now expressly laid down U/A
133 of the Constitution.

Limitation: under the Limitation Act the application for leave to appeal to
the SC must be made within 90 days form the date of the decree or order
appealed from. But in case where leave was refused by the HC the
limitation is 60 days.
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Finding of Fact: SC ordinarily does not interfere with concurrent finding of

fact arrived at by trial court and HCs.

New point before SC: it has been held in the case of Ambica Prasad
Thakur Vs. Ram Ekbal, AIR 1966 SC 605 that the new point being a subject
matter of enquiry in courts below could not be urged for the first time in
appeal before Sc.

Procedure for Appeals to the SC:

(1) Application for Leave to Appeal: whoever desires to appeal to the SC

shall apply by petition to the Court whose decree is sought to be appealed
from. After notice to the other parties the court may reject or allow the
petition and grant leave by issuing certificate. The petition shall state the
grounds of appeal and the amount or value and nature of the case and that
it fulfills the requirements for appeal given in S.109.

(2) Security and Deposit or Grant of Certificate: When the certificate is

granted, the applicant shall, (within 90 days) or such further period as
granted by the court not exceeding 60 days: from the date of decree of the
certificate (whichever is the later date)

a) Furnish security in cash or government securities in some other

form for the cost of respondent or

b) Deposit the amount required for expenses of preparation of a

printed paper book of entire record of the case.

(3) Admission of appeal : After the deposits and securities mentioned above,
the court shall (a) declare the appeal admitted

(b) give notice thereof to the respondent,

(c) transmit to the (Supreme court) under the seal of the

court a correct copy of the said record, expect as

aforesaid, and
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(d) give to either party one or more authenticated copies of

any of the papers in the suit on his applying thereof and paying the
reasonable expenses incurred in preparing them (O.45, R.8).

(4) Powers of the court pending appeal in th Supreme court:

i ) The court may impound any movable property in suit,

ii ) It may pass a stay order against execution of the decree.

iii) It may take security from the decree holder and allow him to

execute the decree.

iv) It may appoint receiver ovrt the suit property (O.45, R.13).

5. Procedure to enforce order of the Supreme Court: The court from

whose decree the appeal was filed in the Supreme court shall transmit
the order of the Supreme court to the trial court or to such other court as
the Supreme court may direct (O.45, R.15) an application made to it for
execution.

The court to which is transmitted shall execute it in the same

manner as executes its original decree and orders. Whereas, Orders relating
to such execution shall be appealable in the same way as the orders relating
to execution of its own decree (O.45, R.16).

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