APPEAL

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:

1. A decree passed by a judicial/administrative authority;

2. An aggrieved person, not necessarily a party to the original proceeding; and
3. 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.

Who may appeal?

A regular first appeal may be preferred by one of the following:

1. Any party to the suit adversely affected by a decree, or if such party is dead, by his legal
representatives under Section 146;
2. 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;
3. An auction purchaser may appeal against an order in execution setting aside the sale on
the ground of fraud;
4. No other person, unless he is a party to the suit, is entitled to appeal under Section 96.
5. 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.

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.
 1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

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.
TYPES

The Civil Procedure Code 1908 provides for appeals under Sections 96 to 112 to be read with
Orders 41 to 45 of the Code. We shall discuss appeals under the following heads) along with the
general procedure in Appeals:
1. First Appeals [Section 96-99A and Order 41]
2. Second Appeals [Section 100-103, 107-108 and Order 43]
3. Orders from which appeal lies[Section 104]
4. Powers of Appellate Courts [Section 107]
5. Appeal to the Supreme Court [Section 109,112 and Order 45]
I. First Appeals

 Section 96(1) provides that an aggrieved party can file an appeal to a superior court
against a decision of a subordinate court either on a question of fact or a question of law
or a question involving a mix of both fact and law.

Note: First appeals can be filed in any court which may or may not be the High Court.

Who may appeal?

In A.P Gandhi v H.M. Seervai, it was held that appeals can be made by-
1. A party to suit who was aggrieved or affected by the decree of the subordinate
court.
2. A person claiming or having vested interest under a party to the suit, which has been
affected by the decree.[Section 146]
3. A guardian ad idem [Section 147, Order 32- Rule 5]
4. Any other party affected by the decree provided leave of the appellate court is
granted.
 Section 96(2) further states that an appeal can be made against an Ex-parte decree
though, one may also prefer an appeal to set aside an ex-parte decree given by the
subordinate court.
 Section 96(3) provides that no appeal can be sought against the award of a Consent
Decree by the subordinate court (based on the principle of estoppel. Also, no appeal lies
in petty cases [96(4)]

 Section 97 provides that an appeal must lie usually against a Preliminary Decree i.e. one
cannot challenge a final decree if they do not challenge a preliminary decree (on which
the final decree in a suit is based).

After an appeal
The Court has three options-
 Reverse the order under appeal.
 Modify the order.
 Dismiss the appeal and re-affirm the order without any modification
  Section 98 & Rule 31 to 34: Judgement
Every judgement to an appeal should contain the following essentials:
 Points for determination set out in the case
 The decision thereon
 The reason for the decision i.e. reversed or varied decrees to the original decree shall be
signed by the Judge(s) concurring therein.

Second Appeals (i.e. Appeals arising out of Appellate Decrees)

Section 100 provides for a second appeal under this code.

As per Section 100 of the Civil Procedure Code, 19082

 "An appeal shall lie to the High Court for the decision made by the District Court.
 An appeal lies if the decree is passed ex-parte.
 If High Court is satisfied that substantial question of law is involved it shall formulate the
decisions."
The Second appeal can only be exercised only when the case falls under these categories-

 Question of law is involved.

 Question of law should be substantial.
The term substantial question of law has not been defined anywhere under CPC but it was first
time interpreted by Supreme Court in the case of Chunni Lal Mehta &Sons Ltd vs Century
Spg & Mfg co. ltd.. It laid down the below test:
1. Whether the matter is of general importance (that it has a far-reaching effect in the
justice administration of the state).
2. Whether it directly and substantially affects the rights of parties and if so, -- Whether
it is an open question and it cannot be settled unless by the higher court or ---it is not free
from doubt or----- the matter calls for alternate views.
 Whether something is a substantial question of law or not depends upon the facts and
circumstances of each case and, no rule of universal application can be laid down”--- In
Syeda Rahimunnisa v. Malan Bi
 Also, Section 101 prohibits all second appeals apart from those initiated under Section
100(1)

 ------------Note: Any court may refer any matter to the High Court (for its opinion, which
shall pass an order thereon) by any court under Section 113.

 100 (2) an appeal may lie under this Section in case of an appellate decree (first appeal)
that was passed ex-parte.

 100(3) in an appeal under this Section, the memorandum of appeal shall precisely state
the substantial question of law that is involved.
  100(4) if the High Court is satisfied that a substantial question of law is involved in the
case then, it shall formulate such a question.

 100 (5) appeal shall be heard on the formulated question [Order 42- Rule 2] and, the
respondent in the case will be allowed to argue that the case does not involve such
question.

 ------------The proviso to this section adds that the High Court has to record reasons for
admitting questions that are not formulated by it.

Section 102: No second appeal shall lie from any decree

A second appeal cannot be filed against an original or appellate decree in a suit, in which the
subject matter involved does not exceed Rs. 25000.

Orders from which appeal lies

Section 104(1) of the Code specifically states that an appeal shall lie from the following orders
under this Section (along with appeals otherwise provided under the Code or under any other law
in force):
 Order under Section 35A (“Compensatory costs in respect of false or vexatious claims or
defences”)
 Order under Section 95 (“Compensation for obtaining arrest, attachment or injunction on
insufficient ground”)
 An order imposing a fine, directing arrest or detention in civil prison to any person
(except when such arrest or detention is for the execution of a decree).
 An order made under rules from which an appeal is expressly allowed by the said rules.
---------104(2): No appeal shall lie from any order passed in an appeal under this Section.

Appeals to the Supreme Court

Under Section 109 of the Code, an appeal shall lie to the Supreme Court from any judgement,
decree or final order in a civil proceeding of the High Court, if the said High Court certifies:
1. That the case involves a substantial question of law of general importance.
2. That it is the High Court’s opinion that the matter shall be resolved by the Supreme
Court.
Further, Section 112 states that the Civil Procedure Code’s provisions shall not affect the power
of the Supreme Court under Article 136 of the Constitution or interfere with rules of Appeals
formulated by the Supreme Court.

LIMITATION ON APPEALS
Article 116(a) of the Limitation Act 1963 provides that an appeal shall be brought to the
Supreme Court within 60 days, the High Court within 90 days and within 30 days (in case of
other appellate courts) of the date of the original or appellate decree.

 Powers of an Appellate Court

1. Power to decide a case finally [Section 107(1)(a)- Order 41 Rule 24]

Where the original evidence is sufficient to enable the appellate court to pronounce a judgement
in the matter, no new evidence is taken. However, in Sunder Singh v. Narain Singh, this was
declared as the general rule and, new evidence might be allowed in rare cases.

2. Power to remand subordinate court [Section 107(1)(b), Order 41- Rule 23 & 23A]:
This power is subject to the satisfaction of the following three grounds:
 The case was disposed of by the trial court on a Preliminary point.
 The decree under appeal has been reversed.
 Any other ground deemed fit by the Appellate Court.
3. Power to frame issues and refer them for trial [Section 107(1)(c), Order 41-Rule 25 &26]
4. Power to take in additional evidence [Section 107(1)(d), Order 41-Rule 29 to 29]
5. Power to modify original decree [Order 41-Rule 33]

 Duties of an appellate court

1. The appellate Court has a duty to analyze the factual position in the background of
principles of law involved and then decide the appeal.
2. To provide cogent reasons for setting aside a judgment of an inferior Court.
3. To delve into the question of limitation under Section 3(1) of the Limitation Act.
4. 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.