E-Notes Unit 4-CPC

Chanderprabhu Jain College of Higher Studies
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School of Law
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E-Notes
CLASS & SECTION : BA/BBALLB 5th Semester

SUBJECT NAME : Code of Civil Procedure
SUBJECT CODE : LLB 307
Unit-4
A. Appeals from Original Decree
This article basically focuses on appeal from original decrees made under Section 96 of
the Code of Civil Procedure. The First part of the Project Report deals with introduction
as to what is meant by appeal and especially appeal from original decrees. The second
Part of the Project Report deals with the nature and scope of the Section. The third part of
the Project Repot deals with the leading case laws on right to appeal and Doctrine of
Merger and lastly, the conclusion of the article.
The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an
application or petition to appeal higher Court for are consideration of the decision of
appeal lower court.1 It is appeal proceeding for review to be carried out by appeal higher
authority of appeal decision given by appeal lower one. An appeal is appeal creature of
statute and right to appeal is neither an inherent nor natural right.
Appeal person aggrieved by appeal decree is not entitled as or right to appeal from
decree. The right to appeal must be given by statute. Section 9 confers on appeal litigant,
independently of any statute, appeal right to institute appeal suit of civil nature in appeal
court of law. So he has appeal right to apply for execution of appeal decree passed in his
favour, but he has no right to appeal from appeal decree or order made against him,
unless the right is clearly conferred by statute. Section 96 of the Code gives appeal right
to litigant to appeal from an original decree. Section 100 gives him appeal right to appeal
from an appellate decree in certain cases. Section 109 gives him right to appeal to the
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Supreme Court in certain cases. Section 104 gives him right to appeal from orders as
distinguished from decrees.
Section 96 of Code of Civil Procedure
Appeal from Original decrees

Appeal is provided under Section 96 of the CPC, which says that except as provided in
CPC or any other law for timbering in force, an appeal shall lie from any decree passed
by court exercising Original Jurisdiction to appeal Court authorized to hear the appeal
from the decision of the Court i.e.
Section 96 makes it clear that no appeal lies from appeal decree passed by the Court with
the consent of the parties. However, an appeal may lie fro original decrees which is
passed exparte i.e. without hearing of the parties. No appeal lies against the decree passed
by small cause court, if the value of the subject-matter does not exceed Rs. 10,0004
except on appeal question of law. Ordinarily, only appeal party to the suit adversely
affected by appeal decree or any of his representatives in interest may file an appeal.
However, appeal person who is not appeal party to the decree or order may prefer an
appeal with leave of the court, if he is bound or otherwise prejudicially affected by such
decree or odder, as in such an eventuality he may be said to be an “aggrieved person.
Right To Appeal: A Statutory And Substantive Right

Right to appeal is statutory and substantive right. It is not merely appeal procedural right.
Statutory right means must be conferred by statute unless it provides there won't be any
right to appeal. While right to institute a suit is not conferred by law. The right is
inherent. But right to appeal has to be conferred by appeal statute. Where statute provides
for right to appeal, it may constitute appeal machinery where shall the appeal lie. While
the same isn't true for right to sue. A civil suit has to be filed subject to condition of
jurisdiction. An appeal is appeal substantive right. Right to appeal can't be taken
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retros0pectively because general rule of specific interpretation. Substantive law operates
prospectively unless an express statute provides so.
When does right to appeal to appeal accrues to any person?

As soon as judgment is pronounced against party, right to appeal arises. Right to appeal
doesn't arise when adverse decision is given, but on the day suit is instituted i.e.
proceedings commenced, right to appeal get conferred. Thus, it can be said the Right to
appeal is appeal substantive right vested in parties from the date suit instituted. The right
to appeal can be waived by a party under a legal and valid agreement, and if a party has
accepted the benefits under the decree, he is stopped from challenging its legality. The
right to appeal also stands destroyed if the court to which appeal lies is abolished
altogether without any forum being substituted in its place
The Court hearing the appeal, has the power to implead a person as respondent who has
not been so impleaded where it appears to the court that he may be a person and
interested in the result of the appeal.
Appeal from final decree when no appeal from preliminary decrees

In cases where preliminary and final decree are required to be passed, and if a party
aggrieved by preliminary decree does not prefer an appeal, he cannot be permitted to
raise disputes about correctness of such decree in any appeal against final decree.
An appeal is a constitution of proceedings. The appellate court can re-examine questions

of fact and law and May even re-appreciate evidence. The powers of the first appellate
court are co-extensive with those of the civil court of original jurisdiction. However,
there may be certain self-imposed restraints in the exercise of such powers. However they
are discretionary and Do not fetter jurisdiction of the courts. Unlike revision or review
where limited grounds of interference are available, the appellate proceedings offer a
much wider scope in deciding about correctness of the judgments of the courts below.
First appeal may be filed on a question of fact or on a question of law or on a mixed
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question of fact and law may arise in a case.7 In determining the appellate forum, the
value of the subject matter of the suit is material and not the claim in appeal.8
The judgment of the appellate court should state the points for determination, the decision
thereon, the reasons from the decision, and the relief to which the appellant is entitled.
The appellate court should state its own reasons; thus it is not enough to say in the
judgment, “I concur with the decision of the Munsiff has given on each point.' If this is
done, the judgment will be set aside by the High court in second appeal. After the
judgment is pronounced, the decree will be drawn up.
Who can appeal?

1. Any party to the suit, who is adversely affected by the decree or the transferee of
interest of such party has been adversely affected by the decree provided his name was
entered into record of suit.
2. An auction purchaser from an order in execution of a decree to set aside the same on
the grounds of fraud.
3. Any person who is bound by the decree and decree would operate res judicata against
him.
Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316
In this case, the Trial Court judge prohibited the exhibition of film both in India and
abroad. Session Judge permitted the exhibition of film in abroad. Subsequently, a party
who moved in appeal did not have locus standi. It was reversed by division bench saying
that its not proper on the part of judge as he entertained the suit on which party has no
locus standi.9
Leading Case Law On Right To Appeal And Doctrine Of Merger
1. Sadhu Singh v. Dharam Dev 1981 SCC 510
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In this case, in Punjab there used to appeal right of preemption and in Muslim Personal
Law, if appeal person wants to sell immovable property, he must ask the person who
have adjoining property.
In 1973, an Act was passed, Punjab Premption Repeal Act, 1973 by which premptory
right was abolished. Provision: “No Court shall pass appeal decree in any preemption
suit.” In this case, decree has already been passed by Court of Original jurisdiction and
matter was pending in appeal.
The issue before the Court was that: Whether the appellate Court can pass appeal decree?
It was held that the lower Courts decree would get merged into appellate Courts decree.
Where decree is drawn on appellate order and once act passed, no premptory right. In this
proceeding the appellate Court is deprived of power to pass appeal decree.
Conflicting situation when legislation is passed

There may be two situations:
1. A right to appeal exist on the date of institution of suit and subsequent law passed
taking right to appeal.
2. No right to appeal on the date of institution of suit but subsequently law passed
granting right to appeal.
2. State of Bombay v. Supreme General Films and Exchange AIR 1960 SC 980
In this case it was held that right to appeal cannot be taken away, if available on the date
of institution of suit and subsequently law passed taking away right to appeal.
3. Delhi Cloth & General Mills v. I T Commissioner AIR 1927 PC 242

Where right to appeal is created subsequently shall not be available to a litigant if the suit
was instituted prior to such creation.
4. Veeraya v. Subbia Choudhry AIR 1957 SC 540
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Right to appeal get vested on the date suit is instituted. A new right to appeal gets created
can't be availed by the parties to a proceeding which commenced earlier during the
creation of new rights.
Case Laws on Doctrine Of Merger
Ram Chandra Abhyankar v. Krishnaji Dalladarya AIR 1970 SC 1

In this case Supreme Court laid down three conditions for the application of Doctrine of
Merger:
1. the supereior jurisdiction should be appeallte or revisional in nature
2. jurisdiction should have been excercised after the issuance of notice.
3. After a full hearing in presence of both the parties i.e. on lu the part where the superior
court's order goes into detail of issue, to that extent only inferior court's order gets
merged.
It will depend on the nature of jurisdiction exercised, the content and subject matter of
challenged capable of being laid down. The superior court should be capable of being
reversal or modifying or affirming the order put in issue before it.
In writ jurisdiction, the jurisdiction is not appellate or revisional but it is a collateral
challenged on the principle of natural justice.
Kuna Ahymed v. State of Kerala AIR 2000 SC 2608

Kerala legislation passed the Act, kereala Private Forest Act, 1971 whereby appeal forest
tribunal was constituted. It was to determine whether any private forest is to be vested in
government or not? On behalf of the [petitioners, they raised appeal dispute about 1020
acres of forest land. The tribunal held in favour of petitioners.
Kerala Government appeal against the decision of Forest Tribunal before Kerala High
Court. The Kerala High Court dismissed the appeal by detailed order. No provision for
further appeal in the act, so Kerala Government filed appeal SLP under article 136 before
the a SC, which was dismissed. Subsequently the Act was amended and appeal new
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Section 8c was introduced providing for review of order of High Court. Consequently
appeal revision petition was filed before Kerala High Court for review its earlier order in
appeal.
Appeal preliminary decree was taken on behalf the petitioner that Kerala High Courts
order get merged with Supreme Court's order whereby SC had dismissed the SLP on
merits i.e. there doesn't exist an order of High Court which can be reviewed.
This objection was dismissed by Kerala High Court. Appellant went to Supreme Court
against the preliminary decree.
The issue before the Court was that- where a SLP is filed and dismissed, whether there is
appeal ground for the application of Doctrine of Merger?
Justice Lahoti. Observed in detail: What the stage of SLP?
When slp is heard by SC, it is only leave for admission for appeal. The court doesn't
exercise appellate jurisdiction, but just discretionary jurisdiction to admit or deny the
appeal.
"Where the SLP is dismissed by appeal brief or cryptic order or reasoned order must be
taken into consideration. Therefore, while dismissing SLP, Supreme Court is giving
appeal detailed judgment and pronouncing certain principles of law, those provisions are
binding on lower court by virtue of Article 141. But, where dismissal SLP is appeal brief
order, then there is no law.
Conclusion
The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an
application or petition to appeal higher Court for are consideration of the decision of
appeal lower court. It is appeal proceeding for review to be carried out by appeal higher
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authority of appeal decision given by appeal lower one. In appeal is appeal creature of
statute and right to appeal is neither an inherent nor natural right.
Appeal person aggrieved by appeal decree is not entitled as or right to appeal from
decree. The right to appeal must be given by statute. Section 9 confers on appeal litigant,
independently of any statute, appeal right to institute appeal suit of civil nature in appeal
court of law. So he has appeal right to apply for execution of appeal decree passed in his
favour, but he has no right to appeal from appeal decree or order made against him,
unless the right is clearly conferred by statute. Section 96 of the Code gives appeal right
to litigant to appeal from an original decree. Section 100 gives him appeal right to appeal
from an appellate decree in certain cases. Section 109 gives him right to appeal to the
Supreme Court in certain cases. Section 104 gives him right to appeal from orders as
distinguished from decrees.
As soon as judgment is pronounced against party, right to appeal arises. Right to appeal
doesn't arise when adverse decision is given, but on the day suit is instituted i.e.
proceedings commenced, right to appeal get conferred. Thus, it can be said the Right to
appeal is appeal substantive right vested in parties from the date suit instituted.\
B. Appeals from Appellate Decrees
Introduction:
The expression ‘appeal’ has nowhere been defined in the Code of Civil Procedure, 1908.
An appeal, according to Black’s Law Dictionary is “The complaint to a superior court of
an injustice done or error committed by an inferior one, whose judgment or decision the
court above is called upon to correct or reverse. The removal of a cause from a court of
inferior to one of superior jurisdiction, for the purpose of obtaining a review and retrial.”
In a similar manner, a second appeal lies against the decree passed by the lower court that
heard the first appeal. An appeal is a statutory and substantive right and not merely a
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legal right. The recourse to it can only be taken when it is expressly prescribed by the
statute
Second Appeal:
The second appeal has been defined under Section 100 of Code of Civil Procedure which
reads as:
“100. Second appeal:
(1) Save as otherwise expressly provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie to the High Court from every decree passed in
appeal by any Court subordinate to the High Court, if the High Court is satisfied that the
case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at
the hearing of the appeal, be allowed to argue that the case does not involve such
question: Provided that nothing in this subsection shall be deemed to take away or
abridge the power of the Court to hear, for reasons to be recorded, the appeal on any
other substantial question of law, not formulated by it, if it is satisfied that the case
involves such question.”
The procedural right of the second appeal is conferred by this section on either of the
parties to a civil suit who has been adversely affected by the decree passed by a civil
court. The second appeal lies to the High Court only if the court is satisfied that it
involves a substantial question of law.
The right to appeal or second appeal for that matter is an instrument of the statute. Thus,
such right doesn’t come under the principles of natural justice and one can’t approach the
court if the same has not been provided by the statue. The Supreme Court in Anant Mills
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Co. Ltd. v. State of Gujarat have iterated that the “right of appeal is a creature of statute
and there is no reason why the legislature, while granting the right, cannot impose
conditions for the exercise of such right so long as the conditions are not so onerous as to
amount to unreasonable restrictions rendering the right almost illusory”.
On what grounds does a Second Appeal lie?

Section 101 reads as “Second appeal on no other grounds— No second appeal shall lie
except on the ground mentioned in section 100.” therefore, it specifically bars the second
appeal on any other ground mentioned in Section 100. The grounds on which a Second
Appeal shall lie are:
(i) that the appeal should involve a substantial question of law that may either be
presented by the party in a memorandum of appeal or the court may itself formulate such
question;
(ii) that the second appeal may be brought forth where the decree was passed ex parte;
Substantial Question of Law:

A Second Appeal can only be entertained if it involves a substantial question of law. The
expression is not defined in the Code, however, the Supreme Court in Sir Chunilal V.
Mehta And Sons, Ltd. vs The Century Spinning And Manufacturing Co., Ltd. laid down
that “The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free from difficulty or call for discussion
of alternative views.”
To be a ‘substantial’ question of law, the same should be debatable, not have been
previously determined by the lower courts and should not be an applicable precedent in
any form. Whether the question of law is ‘substantial’ or not is to be decided by the High
Court and that may depend upon the facts and circumstances of each case. The proviso to
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Section 100(5) gives the court the power to hear questions which were not formulated by
it but they form a part of the substantial question of law if the court is satisfied that case
involves such a question. In Mahindra & Mahindra Ltd. v. Union of India & Anr, the
court observed that “Under the proviso, the Court should be ‘satisfied’ that the case
involves a substantial question of law and not a mere question of law. The reason for
permitting the substantial question of law to be raised should be recorded by the Court.”
Question of fact:
The general rule is that the High Court shall only entertain matters involving a substantial
question of law but Section 103 serves a supplementary to this.
Section 103 states: “Power of High Court to determine issues of fact— In any second
appeal, the High Court may, if the evidence on the record is sufficient, determine any
issue necessary for the disposal of the appeal,—
(a) which has not been determined by the lower Appellate Court or both by the Court of
the first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts reason of a decision on
such question of law as is referred to in section 100.”
The particular section talks of two situations when a question of fact can be dealt with by
the court in a second appeal. Firstly, when a necessary issue has not been determined by
either the Lower Court or the Court of the first instance. Secondly, when the necessary
issue has been wrongly determined by the Courts on the substantial question of law
which can properly be the subject matter of the second appeal under Section 100.
In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors the question came up before the
court that whether the compromise decree was obtained by fraud. The court held that
though it is purely a question of fact none of the lower courts has dealt with the question
whether the decree was obtained by committing a fraud on the Court and hence, this court
can look into the question of fact by exercising its power under Section 103. Further in
Haryana State Electronics Development Corporation Ltd. & Ors. v. Seema Sharma & Ors
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dealt with the question that whether the promotion is applicable only on the basis of
seniority or it should conform to merit-cum-seniority. The Supreme Court observed that
such a question was not dealt by either of the lower courts and hence, remanded the
matter back to the High Court to re-hear the second appeal and decide the aforementioned
questioned. The Court further said that “Under Section 103 of the Civil Procedure Code,
the High Court in the second appeal can decide this issue since it is necessary for the
disposal of the appeal and has not been decided by the courts below. Relevant materials
on this issue are also on record. After deciding that question the High Court will decide
whether respondent(s) claim for promotion has been wrongfully denied.”
Further, the court clarified in Ramji Bhagala v. Krishnarao Krirao Bagra that an appellate
court cannot partly admit and partly reject a second appeal under Section 100 and Section
101. It should either admit it wholly or reject it wholly.
Mixed question of fact and law:

While discussing the true scope of observations under Section 100 the Supreme Court in
Shri Meenakshi Mills v. C.I.T. pointed out that there lies a difference between the pure
question of fact and a mixed question of fact and law, and observations aforesaid have a
reference to the latter and not the former.
In Gopal Singh v. Ujagar Singh, the question was whether a property is ancestral or not,
or whether, when a raiyat purchased the interest of the proprietor, there is a merger of two
interests, is a mixed one of fact and law. Though ordinarily, a second appeal does not lie
on the finding of fact, when there is a legal conclusion that is necessary to be drawn from
the finding of fact, a second appeal will lie on the ground that the legal conclusion was
erroneous.
Concurrent finding of the facts:

Generally, the concurrent finding of the fact by the lower court is not disturbed by the
High Court by the virtue of the application of the same set of principles in the
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determination by two different lower courts. However, the power of the High Court in
this regard will be subject to the grounds laid down in Section 100 and Section 103.
No Second Appeal in certain cases:
The scope of application of a second appeal has been made limited by Section 102 to the
cases wherein the subject matter of the original suit should exceed three thousand rupees.
Section 102 reads as “No second appeal in certain suits – No second appeal shall lie 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 three thousand rupees.”
Moreover, no appellate court has the jurisdiction to entertain a second appeal on an

erroneous finding of the fact, however gross or inexcusable the error may seem to be.
However, there is no absolute prohibition on the appellate court to entertain a second
appeal on a question of fact. The court in Jagdish Singh v. Natthu Singh laid down that if
the court is satisfied that the finding of fact by the lower court was vitiated due to non-
consideration of relevant evidence or consideration of an evidence which had no ulterior
impact on the findings i.e. the finding of the fact had been rendered perverse, then the the
appellate court has to jurisdiction to deliberate upon the findings of the facts.
Desirable limitations on the scope of Second Appeal:

Having regard to all the relevant aspects of the right of second appeal in appropriate cases
we may come to a conclusion that the said right is confined to the cases wherein:
(i) a question of law is involved; and,
(ii) the question of law so involved is substantial.
The mere fact that a question of fact has been wrongly determined should not be criteria
for entertaining a second appeal. The justification of a second appeal should rest solely
on the criteria as laid down in Section 100.
Furthermore, the mere fact that finding of the fact is supposed to be perverse of
manifestly unjust will not be sufficient. The court in Bharatha Matha & Anr. v. R. Vijaya
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Renganathan & Ors laid down that the judgement rendered should suffer from additional
infirmity of non-application of mind.
Conclusion:
The right to appeal arises as soon as the judgement is pronounced by a competent court.
It is not essential that such right is given only to the party on whom an adverse decision is
pronounced but is applicable to both parties equally. Thus, the right to appeal is vested on
the parties as soon as the proceedings begin and arises when a judgement is pronounced.
It can be summarised that the law can at most extent be applicable to cases involving a
substantial question of law and it becomes the responsibility of the appellate court to
formulate such a question after referring to the memorandum of appeal submitted by the
appellant.
B. General Provisions relating to Appeal
INTRODUCTION
Appeal can be defined as judicial examination of the decision by a higher court of the
decision of the inferior court. Section 96-99 and Rules 23 to 33 of Order 41 enumerate
the powers of an appellate court while hearing first appeals. Further Section 100-103,
107-108 and Order 42 deals with Second Appeal.
Every person has been given right of appeal against decree. However, right of appeal is
not an inherent right. Rather it can only be availed where it is expressly granted by law.
Appeal lies against a decree and not against a judgment. Rights of appeal are substantive
right and they are not mere matters of procedure. Further right of appeal is governed by
the law prevailing at the date of the suit and not by law that prevails at the date of the
decision or at the date of filling of the appeal. An appeal lies under section 96 CPC only
from a decree because the decree marks the stage at which the jurisdiction of the court
which the appeal is made begins. As such unless a decree is drawn up, no appeal lies
from a mere finding, but if the finding amount to a decree, an appeal would lie.
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ANALYSIS OF GENERAL PROVISIONS RELATING TO APPEAL
Section 107 and 108 are the General Provisions relating to appeal.
Section 107 reads as follows:
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court
shall have power
(a) To determine a case finally;
(b) To remand a case
(c) To frame issues and refer them for trial;
(d) To take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall
perform as nearly as may be the same duties as are conferred and imposed by this Code
on courts of original jurisdiction in respect of suits instituted therein.
* Section 107 (1)(a) and Rule 24 of Order 41 enables the appellate court to dispose of a
case finally where the evidence on record is sufficient.
* Section 107(1)(b) deals with the power of remand [ Send back]
.
Rule 23 of Order 41 states that where the court from whose decree an appeal is preferred
has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the
Appellate Court may, if it thinks fit, by order remand the case, and may further direct
what issue or issues shall be tried in the case so remanded, and shall send a copy of its
judgment and order to the court from whose decree the appeal is preferred, with
directions to re-admit the suit under its original number in the register of civil suits, and
proceed to determine the suit; and the evidence (if any) recorded during the original trial
shall, subject to all just exceptions, be evidence during the trial after remand.
Rule 23 A as inserted by the Amendment Act, 1976 enables the Appellate Court to
remand a case where the lower court has decided on merits but the appellate court
considers such remand in the interest of the justice.
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CONDITIONS FOR ORDERING REMAND:

1.The suit must have been disposed of by the trial court on a preliminary point.
2.The decree under appeal must have been reversed.
3.Other Grounds (Rule 23 A): Rule 23 A of Order 41 enables the Appellate Court to
remand a case where the lower court has decided on merits but the appellate court
considers such remand in the interest of the justice.
* Section 107(1)(c) and Rule 25-26 gives appellate court the power to frame issues and
refer them for trial.
Where the lower court has omitted to frame any issue or try any issue or to determine any
question of fact which is important for the right decision, then the Appellate court may
frame issues and refer them for trial to the lower court and shall direct the court to take
the additional evidence required. The lower court shall try such issues and shall return the
evidence and the findings within the time fixed by the Appellate court.
*Section 107(1)(d) is an exception to the general rule which empowers an appellate court
to take additional evidence or require such evidence to be taken subject to the conditions
laid down in Rule 27 of Order 41.
CIRCUMSTANCES FOR ADDITIONAL EVIDENCE:

1.Improper refusal of lower court to admit evidence.
2.Discovery of new evidence.
3.Requirement by Appellate court.
* Rule 33 of Order 41 empowers an Appellate court to modify decree.
DUTIES OF APPELLATE COURT:

1. Duty to decide appeal finally.
2. Duty not to interfere with decree for technical errors.
3. Duty to re-appreciate evidence.
4. Duty to record reasons etc…
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Section 108 of Code of Civil Procedure reads as follows:
Procedure in appeals from appellate decrees and orders.- The provisions of this Part
relating to appeals from original decrees shall, so far as may be, apply to appeals—
(a) from appellate decrees, and
(b) from orders made under this Code or under any special or local law in which a
different procedure is not provided.
CASE LAWS RELATED TO GENERAL PROVISIONS OF APPEAL

Shantilal v Gujarat Electricity Board: Three writ petitions were filed in the High Court. In
two petitions, vires of statutory provisions were challenged. After the decision of the
High Court, the matters were taken to the Supreme Court which remanded the cases to
the High Court with a direction to decide vires of the provision. The High court refused
to try that issue in the third matter. The Apex Court held that the High Court was bound
to decide vires in all matters.
Purapabutchi Rama v PurapaVimalakumari: In this case it was stated that no remand can
be ordered by the Appellate court under Rule 23 unless the decision of the lower court on
the preliminary point is reversed in appeal.
CWT vs. AluminiumCorpn. Ltd: The High Court of Calcutta expressed doubts about 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.
ShivajiraoNilangekarPatil v. Mahesh MadhavGosavi: In this case the Supreme Court

stated that the basic principle of admission of additional evidence is that the person
seeking the admission of additional evidence should be able to establish that with the best
efforts such additional evidence could not be adduced at first instance. Secondly the party
affected by the admission of additional evidence should have an opportunity to rebut such
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additional evidence. Thirdly the Additional evidence should be relevant for the
determination of the issue.
K.R. Mohan Reddy v Net Work Inc.: In this case the Supreme court stated that clauses
(a), (aa) and (b) of Rue 27 (1) refer to three different situations. For exercising
jurisdiction there under, the Appellate court must record a finding that one or other
conditions of Rule 27 (1) is satisfied.
CONCLUSION
As stated above section 107 and 108 are general provisions relating to appeal. Section
107 deals with the powers of the appellate court in the cases of appeal. Whereas Section
108 of Code of Civil Procedure deals with the procedure in appeals from appellate
decrees and orders.
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. The
correctness of an order of remand if not questioned at the time when it was made by
filing an appeal, nevertheless can be challenged later on in an appeal arising out of the
final judgment and decree.
When a party is unable to produce the evidence in the trial court under the circumstances
mentioned in the Code, he should be allowed to produce the same in the appellate court.
Even though this power is discretionary, but it can be exercised and it should be exercised
in sound judicial principles and in the interest of justice.
C. Reference to High Court
Introduction
Section 113 of Civil Procedure Code deals with the provision of reference. Under the
provision of Section 113, a lower or subordinate court can reach out to higher court for
the doubt in order to avoid the misinterpretation of the law which is called reference.
Parties through an application can move the reference to the High court. Lower Court can
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apply the provision of reference suo-moto in case of any doubt with respect to any legal
provision. The lower court is not bound to refer to the High Court other than in case of
validity of legal provision. It helps the lower court to avoid commission of error while
pronouncing the judgement. The subordinate court can use its right to reference in the
following situation:
1. In case of any question arising in the court at the time of entertaining the suit with
respect to the validity of any act, rules, order, ordinance etc.
2. Where the court has the opinion or feels that any provision of the law is invalid or not
in the power of court (“ultra-virus”).
3. The High Court or Supreme Court must have not made such question on the provision
of law invalid.
4. The court feels that it is important to take the reference of high court for ascertaining
the validity of the provisions mentioned in the law before disposal of any case.
There can be two types of doubts which need to be referred under this section.
1. In case, the doubt has arisen with respect to any Act or law, it is mandatory for the
lower court to take the reference or opinion from the High court.
2. However, in case the doubt has come up during proceedings, it is not mandatory for the
lower court to take the opinion of the High Court. The lower court can suo-moto refer to
the High Court.
Object
The object behind the provisions of Reference is to empower the subordinate court to
obtain the opinion of the High Court in non-appealable cases when there is a question of
law so that any commission of error could be avoided which couldn’t be remedied later
on.
As held in the case of Diwali Bai v. Sadashivdas, the reference must be made before
passing of the judgement of the case.
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Conditions for seeking reference
Order 46 of CPC mentions the procedure of making a reference. In order to make a
reference to High Court, subordinate court needs to satisfy the condition mentioned in
Order 46 of Civil Procedure Code which has been produced as follows:
1. The suit or appeal must be pending before the court while making a reference and no
further appeal from the order of such suit or decree is lying before the court.
2. The question of the validity of provision of law must have arisen during the pendency
of the suit i.e. during proceeding of the suit in the court.
3. When such doubt regarding the validity of the provision of law has arisen, the court
must have been entertaining the suit.
While making the reference, the district court can put the case on stay, or it can pass a
contingent order. The subordinate court, after taking into account the opinion of the high
court where such reference has been made, may pass order or decree.
There are two classes of the question of law on which the subordinate court may entertain
the doubt
1.Questions related to the validity of any Act, Ordinance or Regulations.
2.Any other questions.
Under the second condition, reference is optional but in the first condition i.e., a question
related to any Act, Ordinance or Regulations, reference is obligatory. Reference is
obligatory in such condition when the following conditions are fulfilled:
1. In order to dispose of the case, the decision of such question is necessary.
2. The subordinate court seeking reference is of the view that the Act, Ordinance or
regulation is ultra vires.
3. There is no determination that such Act is ultra vires either by the Supreme Court or the
High Court to which the court is subordinate to.
A reference can be made by the judge only in the case when the judge who is dealing
with that case has a reasonable doubt about it. When any matter is already decided by the
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High Court to which the court seeking reference is subordinate to then it is not considered
as a reasonable question of doubt.
Who can apply for reference?

The court of civil judicature can refer the case to the High Court either on an application
made by a party or suo moto. As held in the case of Ramakant Bindal v. State of U.P, no
reference can be made by a tribunal.
Powers and duty of the referring court

A reference can be made in a suit, appeal or execution proceeding pending before the
court only when there is a doubt of law. As held in the case of Banarasi Yadav v. Krishna
Chandra it was held that the question of law about which the subordinate court is
doubtful, must have actually been called upon in the case for adjudication and it
shouldn’t be a hypothetical question.
Therefore, no reference can be made on a hypothetical question or a point that may or
may not arise in future. But, if the situation arises it may be considered for reference.
Power and duty of the High Court

The High has consultative jurisdiction in this context. When reference is sought from the
High Court and while dealing it the High Court is not bound to decide only the question
of law in doubt. As held in the case of S.K. Roy v. Board of Revenue, the High Court can
consider the new aspects of law also if any new aspect arises.
To answer the question for which reference is sought totally upon the discretion of the
High Court as discussed under Order 46 of the Code. The High Court may answer the
question and send the case back to the referring court to dispose of it in accordance with
the law. It is also upon the discretion of the High Court to refuse to answer the question
and it has even power to quash it.
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Effects of Reference
In the case of L.S Sherlekar v. D.L. Agarwal, it was held that when the reference is
sought from the High Court and the decree is confirmed if the High Court answers the
question in favour of the plaintiff. If the answer of the High Court is against him, the suit
is dismissed.
Rule 3 of Order 46 states the provision that after hearing the parties if the High Court
desires, it shall decide the referred points and transmits a copy of its judgement to the
subordinate court which shall dispose of the case in reference to said decisions.
D. Review
Introduction
Section 114 of Civil Procedure Code defines the provision of review. In case of review,
the party who is not happy or aggrieved with the order of the court can file an application
for review in the same court which has passed the decree. This provision has been made
so as to facilitate the court to review their own decree or judgement and rectify the same
in case any error has been made while passing the judgement.
It was held in case of Ram Baksh v. Rajeshwari Kunwar, AIR 1948 AII 213 that the
option of review is still there even if the appeal has been dismissed on any ground.
Order 47 of the CPC defines the procedure to be followed in case of review. In the
following situation, the application for review can be filed by the parties:
1. The decree or judgement is appealable however, no appeal has been preferred under the
law.
2. In case of no provision for appeal has been mentioned in the law for certain decree or
judgement.
3. The Court of Small Causes has passed the decision.
The law defines certain grounds on which application for review can be filed:
1. Where there are new discoveries of the facts, which were not in knowledge or could not
produce at the time of passing of decree due to ignorance.
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2. In case, the error is found on the face of the record and does not require the argument of
the entire case again. These errors are not related to wrong decisions made by the court.
3. Any other case, in which case the delusion of the court can be considered as sufficient
ground.
The Apex court in the case of S. Nagraj & Ors. V. State of Karnataka & Anr., 1993 Supp
(4) SCC 595 held that any other sufficient ground has an expanded meaning. An order
passed in case of misinterpretation of the true facts can be considered as sufficient
ground.
Time limit: Article 124 of Limitation Act provided that once the decree or order is
passed, parties shall file the application within 30 days from the date of passing such
decree. The decree or order which is passed after review shall be final and binding to the
parties. It is important to note that the entertaining the application filed by parties for
review is at the discretion of the court. Court can either entertain or reject the application.
In case, the court does not find any sufficient ground to entertain an application, it can
reject the same.
As defined in the law, even the Supreme Court can review its judgement under Article
137 of the constitution of India.
Object
Any human being can make a mistake or error and so do the judges. So, the procedure of
Review has been embedded in the legal system to correct the mistakes and prevent any
miscarriage of justice as held in the case of S.Nagraj v. State of Karnataka. The review
application is not an appeal or revision made to the superior court, but it is a request to
recall and reconsider the decision made before the same court.
Circumstances when a review petition is maintainable

A review petition is maintainable before the court under the following circumstances:
When no appeal lies in the case
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According to section 114 of the code, when no appeal lies from an order or a decree then
it can be reviewed by the Court. In the case of Ganeshi Lal v. Seth Mool Chand, it was
held that taking into consideration sub-clause(c) of Section 114, the application of review
against a decree passed by a Small Causes Court is eligible.
Even if an appeal is dismissed on the ground of being incompetent or time-barred, the
party can go for review procedure as held in the case of Ram Baksh v. Rajeshwari
Kunwar.
When appeal lies in a case but not preferred

When the provision of appeal is available but it is not preferred by the aggrieved party
then also a review petition is maintainable. As held in the case of Sitaramasastry v.
Sunderamma an application for review can be presented before the court only till no
appeal is preferred against that order. The court cannot entertain an application for review
when an appeal is already instituted before making an application for review.
Reference from Small Causes Court

The court may review the judgement on a reference made by the Small Causes Court.
Grounds of Review
There are certain grounds laid down under Rule 1 of Order 47 on which an application
made for the review of a judgement is maintainable:
•On the discovery of new and important matter or evidence
A court can review its judgement when some new and important matter or evidence is
discovered by the applicant which couldn’t be produced or was not available at the time
of passing the decree.
•When the mistakes or errors are apparent on the face of the record
When there is an apparent error on the face of record then the court may review its
judgement or decree. As decided in the case of Karutha Kritya v. R. Ramalinga Raju, the
error includes an error of fact as well as an error of law.
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•Other sufficient reason
The last ground for review is any sufficient reason. Any sufficient ground considered for
review by the court comes under this ground. It could be any reason which the court feels
sufficient to review its judgement in order to avoid a miscarriage of justice.
In the case of Bank of Bihar v. Mahabir Lal, the Supreme Court laid down certain reasons
which can be considered as a sufficient reason for review such as- when there has been
any misapprehension of the true state of circumstances, or when the party has not been
given fair chance to produce any statement or evidence, or no notice was sent to the
party, or the court has failed to consider a material fact or evidence, or the court has
omitted any statutory provisions.
The limitation period for Review

The limitation period for filing an application for review as given under Article 124 of
the Limitation Act, 1963 is thirty days for a court other than the Supreme Court from the
date of decree or order.
Is the power to review an inherent power?

It is a well-settled matter that the power to review is not an inherent power. It is required
to be either expressly conferred by law or by necessary implications.
Inherent power to review of a Court of plenary jurisdiction

The Court of plenary jurisdiction such as a writ court, in order to prevent a miscarriage of
justice and to correct grave errors, has been empowered to review its orders. On the
leading case law regarding this context is Shivdeo Singh v. State of Punjab in which the
same was discussed.
Being the final court of the country who is the last and final to decide on a matter, it has
been empowered to review and to undo injustice. In exceptional circumstances, it can
even exercise the power suo moto.
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Who can make a review?

As discussed till now, a review is the reconsideration of the same matter by the same
judge who has decided the matter. If the judge who decided is present in the court, then
he alone has jurisdiction to review the matter decided by him. He is considered to be the
best to reconsider the case as only he will be able to remember what arguments were
done and what reason he used to decide that case.
However, if there is a situation that the same “judicial officer” cannot be available and
any unavoidable reason might prevent the judge who decided the case to review it, then
in such exceptional circumstances any judge or court of the concurrent jurisdiction can
review it and give decision as held in the case of Reliance Industries Ltd. v. Pravinbhai.
E. Revision
Introduction
If we go to the literal meaning, “to revise” stands for “to look again” or “to look
repeatedly at” or “to go through a matter carefully and correct where necessary”. The
High Court has been empowered with the revisional jurisdiction under section 115 of the
Code of Civil Procedure,1908.
Object
The object behind empowering the High Court with revisional jurisdiction is to prevent
arbitrary illegal or irregular exercise of jurisdiction by the subordinate court. Under
section 115 the High Court is empowered to keep an eye on the proceedings of
subordinate courts that the proceedings are being conducted in accordance with the law,
under its jurisdiction for which it is bound for and in furtherance of justice as held in the
case of Major S.S Khanna v. Brig. F.J. Dillion.
But, the judges of the subordinate court have absolute jurisdiction to decide a case and
even when they have wrongfully decided a case, they do not commit any “jurisdictional
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error”. With the power of revision, the High Court can correct the jurisdictional error
when committed by the subordinate court. The provision of revision provides an
opportunity to the aggrieved party to get their non-appealable orders rectified.
Conditions
Section 115 of the Code of Civil Procedure Code lays down all the conditions when the
High Court can exercise its revisional jurisdiction:

1. The case must be decided.
2. The revisional jurisdiction is exercised when no appeal lies in the case decided by the
subordinate court.
3. The subordinate court has decided such case by:

Exercise of jurisdiction which is not vested to that court by law., or
 It has failed to exercise the vested jurisdiction, or
 Illegal exercise of the vested power or with immaterial irregularity.
The High Court is not entitled to vary or reverse the order or decision of the subordinate
court unless such order is in favour of the party who has applied for revision. Also, the
revisional jurisdiction is not to be exercised if in that matter appeal lies to the High Court.
So, by analysing section 115, we can observe that the revision is done mainly on
jurisdictional errors by the subordinate Court.
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Can the power of Revision be exercised if an alternative remedy is available?
The exercise of revisional jurisdiction is upon the discretion of the court and the parties
cannot claim it as a right. In the leading case of Major. S.S. Khanna v. Brig. F.J. Dillion,
it was held by the Supreme Court that the court has to take into consideration several
factors before exercising the revisional jurisdiction. One of the that is considered is the
availability of an alternative remedy. When an alternative and efficacious remedy is
available to the aggrieved party, then the court may not exercise its revisional power
under The limitation period for Revision

According to article 131 of the Limitation Act, 1963 for a revision of the decree or order,
the limitation period is 90 days. The revision application is required to be made before
the High Court within the limitation period.
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Chanderprabhu Jain College of Higher Studies

CLASS & SECTION : BA/BBALLB 5th Semester

A. Appeals from Original Decree

Section 96 of Code of Civil Procedure

Appeal from Original decrees

Right To Appeal: A Statutory And Substantive Right

When does right to appeal to appeal accrues to any person?

Appeal from final decree when no appeal from preliminary decrees

An appeal is a constitution of proceedings. The appellate court can re-examine questions

Who can appeal?

Leading Case Law On Right To Appeal And Doctrine Of Merger

1. Sadhu Singh v. Dharam Dev 1981 SCC 510

Conflicting situation when legislation is passed

3. Delhi Cloth & General Mills v. I T Commissioner AIR 1927 PC 242

4. Veeraya v. Subbia Choudhry AIR 1957 SC 540

Case Laws on Doctrine Of Merger

Ram Chandra Abhyankar v. Krishnaji Dalladarya AIR 1970 SC 1

Kuna Ahymed v. State of Kerala AIR 2000 SC 2608

Justice Lahoti. Observed in detail: What the stage of SLP?

B. Appeals from Appellate Decrees

On what grounds does a Second Appeal lie?

Substantial Question of Law:

Mixed question of fact and law:

Concurrent finding of the facts:

Moreover, no appellate court has the jurisdiction to entertain a second appeal on an

Desirable limitations on the scope of Second Appeal:

B. General Provisions relating to Appeal

CONDITIONS FOR ORDERING REMAND:

CIRCUMSTANCES FOR ADDITIONAL EVIDENCE:

DUTIES OF APPELLATE COURT:

CASE LAWS RELATED TO GENERAL PROVISIONS OF APPEAL

ShivajiraoNilangekarPatil v. Mahesh MadhavGosavi: In this case the Supreme Court

C. Reference to High Court

Who can apply for reference?

Powers and duty of the referring court

Power and duty of the High Court

Circumstances when a review petition is maintainable

When appeal lies in a case but not preferred

Reference from Small Causes Court

The limitation period for Review

Is the power to review an inherent power?

Inherent power to review of a Court of plenary jurisdiction

Who can make a review?

High Court can exercise its revisional jurisdiction:

jurisdictional errors by the subordinate Court.

Can the power of Revision be exercised if an alternative remedy is available?

availability of an alternative remedy. When an alternative and efficacious remedy is

under The limitation period for Revision

the High Court within the limitation period.

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