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.

An appeal is a complaint made by the aggrieved party to a superior court contending that a decree passed or
an order made by an inferior court is illegal and should not be allowed to survive. It is a legal recourse
available to unsuccessful party to get the decree or the order of lower court set aside at the hands of superior
court. An appeal is in the nature of judicial examination by a higher court of the decision of an inferior court.

❖ In Kamla Devi v. Kushal Kunwar,

it was observed that an appeal is the right of entering a superior court invoking its aid and
interposition to redress an error of the court below. The central idea behind filing of an appeal
revolves around the right as contradistinguished from the procedure laid down therefor. A right of
appeal under the Code is statutory. Appeal is a continuation of the original proceedings.

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.

Grounds Of An Appeal
An appeal under the Civil Procedure Code can be made under the following grounds:

i. A decision has already been made by a judicial or administrative authority.

ii. A person is aggrieved of such decision, whether or not he is a party to the proceeding.
iii. The appeal is entertained by a reviewing body.

Provisions

Part VII, Sections 96-112, Order XLI-Order XLV Civil procedure code deals with it.
CPC talks about the following types of Appeal:

1. First appeal- lies against original decrees

2. Second appeal- lies against the decree of the appellate court
3. Appeal to the Supreme Court
4. Appeals from order
5. Appeal by indigent persons
 1. 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.

● First appeal lies to the District court, if the value of the subject matter of the suit is below Rs. Two
lakhs, and to the high court in all other cases.
● Only such persons, who are party to the suit, or who are adversely affected by the decree may appeal;
Stranger to suit or proceedings is not prohibited by CPC 1908 from filling an appeal against an order
whereby he was aggrieved.
● Following persons are also competent to file an appeal

(i) legal representatives of the party after such persons have been impleaded as party,

(ii) Transferee of the interest of party,

(iii) Any person claiming under a party

(iv) Any person represented by a party

(v) A benamidar on behalf of a real owner,

(vi) A guardian on behalf of a minor

(vii) Government (Federal or Provincial)

● All decisions in an appeal shall be made by the majority and if no majority is established which
necessary to alter or reverse the decree appealed from, then the decree shall stand confirmed. It is the
right of the first appellate court to come to a conclusion different from that of trial court on re-
appraisal of evidence.
● When a court consisting of more than two judges and an appeal is heard by its bench of two judges
and they differ on a point of law, they may refer that point to the other judges of the same court and
then the matter shall be decided according to the majority, including judges who refer that matter.
● Decision which is correct on merits, and within the jurisdiction of the court making it, should not be
set-up by an appeal, merely on the grounds of technical or immaterial defects i.e mis-joinder of
parties etc.
 2. 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.

● Following are the grounds where the second appeal is competent and not otherwise.

(i) Decision being contrary to law

A decision contrary to law is open to interference in the second appeal, and the decree may be amended to
bring it in conformity with legal requirements.

(ii) Decision being contrary to the usage having force of law

The expression usage having the force of law means a local or family usage, which is distinguished from
general law. A usage having the force of law should be ancient, invariable, certain and reasonable.

(iii) Decision having failed to determine some material issue of law or usage having the force of law
The failure to determine, some material issue of law or usage having the force of law, by the lower court, is
a good ground for a second appeal.

(iv) Substantial error or defect in procedure

Where there is a substantial error or defect in the procedure, provided by CPC or by any other law for the
time being in force, which may possibly have produced error or defect in the decision of the case upon
merits, it can be a ground for second appeal.

● Interference barred in Second Appeal

A. Finding of fact is not susceptible to interference in the second appeal.

B. Plea not raised wither in written statement or even in appeal below, could not be taken up in second
appeal by the High Court.
C. Delivery of possession is a question of fact and cannot be interfered with in second appeal.
D. Findings of fact by first appellate court cannot be challenged in second appeal, particularly when no
erroneous approach to the case or findings of fact is shown to have been made by first appellate
court.
E. The question of adverse possession may not necessarily of a document, particularly revenue record,
is a question of law.
F. Concurrent findings of fact by two lower court cannot be challenged in second appeal ever if it is
erroneous or a different conclusion is possible.
G. Where lower courts arrived at a finding of a fact after thoroughly perusing, assessing and
appreciating evidence the point cannot be reopened in second appeal.
 ● Allowing Revision to be treated as a second appeal

The High Court has allowed the revision to be treated as a second appeal. The only point in issue is from
what date this revision should be treated to be converted into a second appeal.

(a) from the date a misconceived civil revision petition was instituted
(b) from the date is request was made for its conversion or
(c) from the date it was allowed to be converted and registered as a second appeal

● Dismissal of Appeal for default

Through second appeal may lie from an appeal decree passed ex-parte, no second appeal lies from an order
dismissing an appeal for default, on the ground that such an order is not a decree.

● Cases where a second appeal is barred

Section 102 provides that no second appeal shall lie in the following suits

(a) Suit of a nature cognizable by court of small causes

A suit the value of which does not exceed Rs.25000 is a suit of a nature cognizable by courts of small
causes. It may be tried either by small cause court or by a civil court, and in that case second appeal is barred
by section 102 of CPC.

(b) Suits where value does not exceed Rs. 25,0000

NO second appeal, shall lie in any other suit, where the value of the subject nature of the original suit does
not exceed Rs. 2,50000.

3. Appeal to the Supreme Court

Appeals to the supreme court are governed by the provisions of Articles 132, 133 and 134A of the
constitution of india with regard to civil matters. Subject to the provisions of the Constitution, an appeal
shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High
Court, if the High Court certifies that

(a) The case involves a substantial question of law of general impor tance; and

(b) In the opinion of the High Court the said question needs to be decided by the Supreme Court.¹

Sections 109 and 112 read with Order 45 deal with appeals to the Supreme Court.

Conditions: Section 109, Order 45 Rule S

An appeal would lie to the Supreme Court under Section 109 of the Code only if the following conditions
are fulfilled:
a. a judgment, decree or final order must have been passed by the High Court
b. a substantial question of law of general importance must have been involved in the case; and
c. in the opinion of the High Court, the said question needs to be decided by the Supreme Court.
 a. a judgment, decree or final order must have been passed by the High Court

An appeal lies to the Supreme Court only against a judgment, decree or final order of the High Court.
A judgment, decree or final order against which an appeal can be preferred to the Supreme Court
must be one which purports to put an end to the litigation between the parties. No certificate can be
granted in respect of an interlocutory order. The test whether the order is final or not will not depend
on whether the controversy is finally over, but whether the controversy raised before the High Court
is finally over or not.

b. a substantial question of law of general importance must have been involved in the case;

An appeal would lie to the Supreme Court if the High Court certifies that the case involves a
substantial question of law of general importance. The expression substantial question of law of
general importance has not been defined in the Code, but it is clear that the High Court can grant
certif icate under Section 109 only when it is satisfied that the question of law involved in the case is
not only substantial but also of general importance. In other words, the substantial question of law
must be such that, apart from the parties to the litigation, the general public should be interested in
determination of such question by the Supreme Court, e.g., it would affect a large number of persons
or a number of proceedings involving the same question. Therefore, if the question is settled by the
Supreme Court, the application of the principle to the facts of a particular case does not make the
question a substantial question of law of general importance.

c. Need to be decided by Supreme Court

It is not sufficient that the case involves a substantial question of law of general importance, but, in
addition to it, the High Court must be of the opinion that such a question needs to be decided by the
Supreme Court. The word needs suggest that there has to be a necessity for a decision by the
Supreme Court on the question, and such a necessity can be said to exist when, for instance, two
views are possible regarding the question and the High Court takes one view of the said views. Such
a necessity can also be said to exist when a different view has been expressed by another High Court.

4. Appeal from order (Sec 104 to 108 and order XLIII)

Order is a formal expression of any decision of a civil court, which is not a decree. Thus, where the
essentials of a decree are not fulfilled, the formal expression of any decision of the civil court is an order.
Every order of the court is not appealable. An appeal lies only against certain orders. The Rules of Order
XLI shall apply to appeals from orders.

Provisions contained in Section 104: Section 104 provides that only the following orders may be challenged
in
appeal, and no other orders -

1. An order under Section 35-A, awarding compensatory costs in respect of false or vexatious claims or
defence. Such appeal is limited to only two grounds viz., no such order could have been made and an
order for less amount ought to have been made.
2. An order under Section 91, refusing leave to institute a suit against public nuisance.
 3. An order under Section 92, refusing leave to institute a suit in case of breach of trust.
4. An order under Section 95, awarding compensation for obtaining arrest, attachment or injunction on
insufficient grounds.
5. An order imposing a fine or directing the arrest or detention in the civil prison of a person except
where such arrest or detention is in the execution of a decree.
6. An order made under rules from which an appeal is expressly allowed by rules.

No appeal shall lie from any order passed in appeal under this section. Section 104, applies to appeals to the
High Court from subordinate courts. If a Single Judge of the High Court exercises original jurisdiction, an
appeal lies to Division Bench under Letters Patent. But, if such order is passed by a court subordinate to the
High Court and an appeal against that order is decided by the Single Judge of the High Court, no Letters
Patent is maintainable.

5. Appeals by indigent persons.

Order XLIV of the Civil Procedure Code talks about appeals by indigent persons.

Any person who is entitled to file an appeal but unable to pay the necessary court fee may obtain the
permission of the court to appeal as an indigent person.For this purpose, he may present an application to the
court, along with a memorandum of appeal. The court may allow the applicant to appeal as an indigent
person, subject to the provisions relating to suits by indigent persons.

● Period of Limitation

The application for leave to appeal as an indigent person must be filed within 30 days. But in case of appeal
before the High Court, such a period is 60 days from the date of the decree when passed.

If there is no reason to reject the application, the court shall fix a day for receiving evidence in proof or
disproof of the indigence of the applicant. At least 10 days clear notice shall be given to the opposite party
and the government pleader.

● Procedure to Sue as an Indigent Person if Application is Admitted

Where the application for permission to sue as an indigent person is granted, it shall be numbered and
registered. It shall be deemed the plaint in the suit, and the suit shall proceed as if it was instituted in an
ordinary manner.

But the plaintiff shall not be liable to pay any court fee or process fee. The plaintiff shall also not be liable
for any fee for the appointment of a pleader.

If a person has been allowed to sue as an indigent person, but he is not represented by a pleader, the court
may assign a pleader to him.
 ● Withdrawal of Permission to Sue as an Indigent Person

The defendant or government pleader may apply to the court for the withdrawal of permission granted to the
plaintiff.

● Rejection of Application

The Court shall reject an application for permission to sue as an indigent person-

1. Where it is not framed and presented in the manner prescribed by rule 2 and rule 3, or

2. Where the applicant is not an indigent person, or

3. Where he has, within two months next before the presentation of the application disposed of any property
fraudulently or in order to be able to apply for permission to sue as an indigent person:

Provided that no application shall be rejected if, even after the value of the property disposed of by the
applicant is taken into account, the applicant would be entitled to sue as an indigent person, or

4. Where his allegations do not show a cause of action, or

5. Where he has entered into any agreement with reference to the subject matter of the proposed suit under
which any other person has obtained an interest in such subject matter, or

6. Where the allegations made by the applicant in the application show that the suit would be barred by any
law for the time being in force, or

7. Where any other person has entered into an agreement with him to finance the litigation.