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PROJECT SUBMISSION

APPEALS UNDER THE HIERARCHY OF COURTS

UNDER THE

CIVIL PROCEDURE CODE, 1908

Submitted By: Submitted To:

Abirami Narendranath Ms. Rosmy Joan


Roll no. 1185 Faculty of Property Law

Athira Sankar P.K

Roll no. 1196

B.A. L.L.B

IV Semester

NATIONAL LAW UNIVERSITY, JODHPUR


WINTER SESSION
(JANUARY - MAY 2016)
ACKNOWLEDGEMENT

We are deeply indebted to our Property Law Professor Ms Rosmy Joan for her guidance
during the completion of our project.

We also acknowledge the Library and IT department for providing me with the resources for
the project. We also thank my classmates for providing a fruitful environment for the project.

Abirami Narendranath

Athira Sankar P.K

RESEARCH METHODOLOGY

We have followed a doctrinal method of research.

We have referred to books, cases and various sources from the Internet. The University
library has also been of great help in completing the objectives of my research.

We have further relied on both Primary and Secondary sources of data so as to ensure an
elaborate research on this matter, which has been elaborated under the heading ‘Scope of
Study’.

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ABSTRACT

Clause (a) of section 6 of the Transfer Of Property Act excludes mere chance of an heir
apparent of succeeding to an estate from the category of transferable property. The technical
expression for such a chance is ‘Spes Successionis’. During the lifetime of a person,the
chance of his heir apparent succeeding to the estate or the chance of a relation obtaining a
legacy under his will is a ‘Spes Successionis’(chance of succession). Such an expectancy
does not amount to an interest in property and cannot be made the subject matter of a transfer.
The paper aims at analyzing the position of the same while looking at a case study to
understand why this is an exception to the general rule and how it is different from other
cases of a like nature.

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TABLE OF CONTENTS

ACKNOWLEDGEMENT .........................................................................................................ii
Research Methodology ..............................................................................................................ii
Preface...................................................................................... Error! Bookmark not defined.
SCOPE OF STUDY................................................................................................................... 2
Introduction ................................................................................................................................ 3
Nature and Scope of “Appeal” ............................................................................................... 4
First Appeals .......................................................................................................................... 5
Section 96........................................................................................................................... 5
Form of Appeal- Procedural Aspects ................................................................................. 7
Powers of the appellate court ........................................................................................... 10
Judgment .......................................................................................................................... 12
Second Appeal ..................................................................................................................... 13
1. Section 100 of the C.P.C ...................................................................................... 13
2. Section 103 of the C.P.C ....................................................................................... 16
3. Section 107 of the C.P.C ....................................................................................... 19
Appeals From Orders ........................................................................................................... 23
Appeals by Indigent Persons ................................................................................................ 24
CONCLUSION ........................................................................................................................ 27
Bibliography ............................................................................................................................ 28

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SCOPE OF STUDY

The main aim of this paper is to evaluate the procedure relating to the appeal under the Civil
Procedure Code 1908 under the headings of:

1. First Appeal
2. Second Appeal
3. Third Appeal or Appeals from Orders
4. Appeal by Indigent persons
5. Appeals to the Supreme Court

Except as specified in various clauses of s.6 of the act,property of any kind may be
transferred. Therefore,general rule is that property of any kind may be transferred as laid
down in s.6 and the person pleading non-transferability must prove the existence of any usage
or custom which restricts the right of transfer. Clause (a) of section 6 of the transfer of
property act discusses the chance of an heir apparent to succeed to the property. A person
having interest which is spessuccessionisi.e mere expectancy to succeed to the property in
future is not a right and is not capable of being transferred. Such a person cannot bring a suit
on the basis of such chance of succession. Similarly,a gift of spes successionis is invalid and
confers no title on the donee.

Where the transfer is not of the right of expectancy of an heir apparent but of the property
itself, it cannot be said to be a transfer of a mere chance to succeed. Thus,when a person is
not heard of for a long time and is believed to be dead,an agreement to transfer the
property,entered into by his brother who is in enjoyment and possession of the property in
dispute,is not a transfer of the right of expectancy,but of the property itself and is not hit by cl
(a) of s.6

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INTRODUCTION

Any person who feels aggrieved by any decree or order of the court may prefer an appeal in
the superior court if the appeal is provided against that decree or order. A right to appeal is
not a natural or an inherent right. An appeal is a creature of the statute and there is no right of
appeal unless it is given clearly and in express terms. It is a vested right and accrues to the
litigant and exists as on and from the date it commences.

The expression “appeal” has not been defined in the code, but it may be defined as the
judicial examination of the decision by a higher court of the decision of an inferior court. It
means removal of a cause from an inferior to a superior court for the purpose of testing the
soundness of the decision of the inferior court. It is thus a remedy provided by law forgetting
the decree of the lower court set aside. In other words, it is a complaint made to the higher
court that the decree passed by the lower court is unsound and wrong. The right to appeal
must, at this juncture, be compared and distinguished from a right to file a suit. As said, the
right to appeal is a statutory right and any such right must have the express authority of a law.
The right to sue or to file a suit is, however, an inherent right and no express authorization
from any statute may be required to institute a suit. It is enough that no statute expressly bars
the institution of such suit.

Under the Code of Civil Procedure, the following are the provisions relating to the right of
appeal:

1. First Appeals : Ss. 96-99A, 107 and Order 41.


2. Second Appeals : Ss. 100-103, 108 and Order 42.
3. Appeals from Orders : Ss. 104, 108 and Order 43.
4. Appeals to the Supreme Court : Sections 109 and Order 45.
5. Appeals by Indigent Persons : Order 44.

It is in the background information provided here that the aspect of an appeal being a
continuation of the suit will be examined further in the project.

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NATURE AND SCOPE OF “APPEAL”

The term, “appeal”, has not been expressly defined in the Code. However various decisions
by the Indian courts have attempted to lay down a concise description of the term. One such
decision was that of Nagendra v. Suresh1, where “any application by a party to an appellate
court, asking it to set aside or revise a decision of a subordinate court”, was defined as an
appeal. The court has held that the nature of the right of appeal is one in which the aggrieved
party enters a superior court with the intention of invoking its aid and intervention to redress
the error of the court below.2 The law provides the remedy of an appeal because it
acknowledges the fact that even the erudite men responsible for the preservation of the
judicial system are susceptible to errors. A Court of Appeal is under an obligation to evaluate
the decision and ratio of adopted by the court of first instance to ensure that whatever errors
there have been, either in law or in fact, are redressed and justice is given to the parties. It is a
fundamental and obvious restriction that even a Court of appeal cannot interfere with the
functioning of a court higher in the judicial hierarchy.3 He who comes in appeal must
establish that the error in facts was of such great magnitude that to leave it uncorrected would
result in a violation of the principles of natural justice, hence necessitating intervention by a
superior court.4 In order for there to be a valid appeal, there must have been a decision by an
adjudicatory authority, an aggrieved party and a reviewing body which is empowered and
willing to entertain the said appeal.5

This right is not a mere procedural one, but is essentially substantive.6 It is a vested right
which accrues to the litigant from the date of commencement of the suit, and is governed by
the law in force on the date of institution of the proceeding. This vested right can only be
taken away by a subsequent enactment which so provides either expressly or by necessary
implication.7 The right of appeal is neither natural nor inherent. It cannot be said to be denied
to a person unless there has been a clear violation of the provisions of a statute which created
such a right to appeal8. The right of appeal may also in some cases be determined by the
discretion of the court. In these cases, the right that has been given to a party is that of

1
59 IA 283
2
Shankar v. Krishnaji, 1970 1 SCR 322
3
Sarkar’s The Code of Civil Procedure, SC Sarkar and Prabhas C Sarkar,2011,11th edn, Vol.1, pg 549
4
Deshmukh & Co v. Avinash V Khandekhar, 2005 Vol. 107(3) 679 (Bom)
5
Louis Blom, “Final Appeal: A Study of the House of Lords in its Judicial Capacity”
6
Garikapati Veeraya v. N. Subbaiah Chaudhary, AIR 1957 SC 540
7
Supra
8
Ganga Bai v. Vijay Kumar(1974) 2 SCC 393

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applying to a court to grant leave to appeal. For example, an appeal to Supreme Court may
be made under Article 136 of the Constitution through the exercise of the court’s discretion.

An appellate court is required to take into account those events which have occurred during
the pendency of the appeal. Such a court allows amendment of a plaint or a written statement,
but such an amendment is to be done such that it does not take away the plaintiff’s vested
right, rendering him without remedy. Therefore, only those events can be taken into
consideration by an appellate court, which have taken place prior to the adjudication of the
suit.9

FIRST APPEALS

1. SECTION 96

This is the primary section which confers the right to appeal. While it recognises the right of
appeal from every decree passed by any court exercising original jurisdiction, the section
does not expressly go into the issue of the requirements necessary to make a person qualified
to file an appeal. However, an examination of the language of the section makes it clear that
if the subject matter of the appeal is a decree, and the party appealing has been aggrieved by
such a decree, then an appeal may be filed under the section.

This creates a lacuna as to who constitutes an aggrieved person. For this, the courts have
developed a test where it is seen whether such a person who appeals has suffered a genuine
grievance because an order has been made which prejudicially affects either his pecuniary or
other interests.10 Therefore, “There can be no appeal where there is nothing to appeal
about.”11 The question whether a party is adversely affected by a decree is q question of fact
that has to be determined on a case to case basis, and a universal rule has not been laid down
to conclusively decide upon the same.

In H. Siddiqui v. A. Ramalingam,12 the apex court, with reference to the provisions of Section
96, held as under: “Thus, it must be evident from the judgment of the appellate court that the
court has properly appreciated the facts/evidence, applied its mind and decided the case
considering the material on record. It would amount to substantial compliance of the said
provisions if the appellate court's judgment is based on the independent assessment of the

9
Shyam Sunder v Ram Kumar (2001) 8 SCC 24
10
Adi Pherozshah Gandhi v. HM Seervai, (1970) 3 SCC 573
11
Krishna v. Mohesh, (1905) 9 CWN 584
12
AIR 2011 SC 1492

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relevant evidence on all important aspect of the matter and the findings of the appellate court
are well founded and quite convincing. It is mandatory for the appellate court to
independently assess the evidence of the parties and consider the relevant points which arise
for adjudication and the bearing of the evidence on those points. Being the final court of fact,
the first appellate court must not record mere general expression of concurrence with the
trial court judgment rather it must give reasons for its decision on each point independently
to that of the trial court. Thus, the entire evidence must be considered and discussed in detail.
Such exercise should be done after formulating the points for consideration in terms of the
said provisions and the court must proceed in adherence to the requirements of the said
statutory provisions.”

As the Court of appeal is the final court of fact, it must properly apply its mind to the case
and ensure that there is proper conduct of the principles of justice. It must carefully consider
the facts of the case and record its reasons for concurring or dissenting with the decision of
the court below. It must independently come up with reasons for its decision and formulate
issues and points upon which its decision was primarily based on. It is only upon doing so
that the court can be effectively said to be in compliance with the provisions of Section 96.

Emphasising the importance of the High Court as a court of first instance, the apex court
held: “Sitting as a court of appeal, it was the duty of the High Court to deal with all the
issues and the evidence led by the parties before recording its findings. The first appeal is a
valuable right and the parties have a right to be heard both on questions of law and on facts
and the judgment in the first appeal must address itself to all the issues of law and fact and
decide it by giving reasons in support of the findings.”13

Thus, the court has to ensure that the right of appeal of the parties is granted in a judicious
and fair manner with a fair application of mind by the court in the process of ensuring that
justice is granted.

Appeal against ex parte decree

Section 96(2) talks about the remedy available to a defendant against whom an ex parte
decree was passed. Such a defendant may file an appeal under sub section 2 of Section 96 of
the Code. But he may also file an application to set aside such an ex parte decree. These two
remedies can be simultaneously resorted to by the party. This is based on the principle that in

13
B.V. Nagesh & Anr. v. H.V. Sreenivasa Murthy, (2010) 10 SCC 55.

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a situation where a statute grants two remedies, they must not be taken as operating in
derogation of each other.14

Appeal against consent decree

Section 96(3) categorically declares that when both parties to an action waive their right to
appeal by any lawful agreement, compromise or by their conduct, it is a valid agreement with
the consideration being both the sides giving up their right to appeal. Once such a decree is
passed with the consent of both the parties, by application of this provision, an estoppel of
sorts is created between the parties, preventing either of them from being able to prefer an
appeal against the decision. But where there is conflict regarding the compromise or its
lawfulness, the application of this section ceases to have effect.15

Appeal in petty cases

Section 96(4) was inserted by the Amendment Act of 1976, and bars appeals on facts from
decrees passed in petty suits where the amount or value of the subject matter of the original
suit does not exceed ten thousand rupees, if the suits in which such decrees are passed are of
a nature cognisable by Courts of Small Causes. The main purpose behind such an enactment
is to reduce appeals in petty cases. Such restrictions are necessary in the interests of the
litigants themselves. They should not be encouraged to appeal on facts in trivial cases.16

2. FORM OF APPEAL- PROCEDURAL ASPECTS

While Sections 96 to 99A lay down the substantive law with regard to First Appeals, Order
41 of the CPC lays down the procedural aspect of the law relating to them. Rule 1 of the
order puts forth certain conditions which must be complied with in order to ensure the valid
presentation of an appeal. These conditions are necessary because they ensure that the
procedural compliance leads to a valid memorandum of appeal. A memorandum of appeal is
different from an appeal. It contains the grounds on which judicial examination is invited.
Thus, the conditions which have been laid down in Rule 1 of Order 41 are as follows-

 The appeal must be in the form of a memorandum, which categorically states the
ground on which the decree appealed from is objected to;
 The appellant or his pleader must have signed this document;

14
Ajudhia Prasad v. Balmukund, (1866) 8 All 354.
15
Banwari Lal v. Chando Devi, (1993) 1 SCC 581.
16
Law Commission’s Fifty fourth Report at p 72.

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 The presentation of such a document must be done to the court or such officer as it
appoints on its behalf;
 There must be a certified copy of the decree attached to the memorandum;
 A certified copy of the judgment must also accompany it;
 If the court so directs the appellant to furnish security in an appeal against a money
decree, he must do so in respect of such an order.

The appellant is prevented from arguing on any ground that has not been put forth in the
memorandum of appeal by the second rule of this order. This essentially has been
included to ensure that the respondent is notified of what he has to counter at the hearing
and that there is no issue which the appellant relies upon to support his claim that the
respondent is previously unaware of. This ensures that both the parties are well informed
of the contentious issues in the appeal and the objections raised to the decision of the
lower court, thus ensuring an even footing of the parties to the appeal. However, if the
appellate court were to decide upon a case based on a ground not set forth in the
memorandum of appeal, it cannot be challenged as violative of this provision.17 This
gives primacy to the discretionary powers of the court and ensures that the considerations
of the court while coming to a decision do not have to be limited to the grounds which
have been raised by the parties to the appeal. If the court feels that a memorandum of
appeal is not in proper form, it has every authority to reject such a document or return it
for the purpose of being amended.18

When a decree has been made on a ground common to all the plaintiffs and defendants,
an appeal may be filed by any of such parties and it is then upon the discretion of the
appellate court whether to reverse or vary the decree in favour of any of the parties to the
appeal. The same has been stated in Rule 4 of Order 41, and it is clear that the intention of
the legislature here is to ensure that the court was not limited by the general principle
which held sway earlier, which was that the only change in the decree that can be made
by an appellate court could be in favour of that party which has preferred the appeal. But
on the application of Rule 4, we see that the court can now make a decision in favour of
any of the parties to the original suit, whether or not they are parties to the appeal. This
ensures that the court is able to do justice to all the parties involved in the subject matter
of a suit, whether they are before it or not. Such a provision also ensures that there are no

17
Yeshwant Deorao v Walchand Ramchand, AIR 1951 SC 16.
18
Rule 3, Order 41

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conflicting decisions in the matter of the same suit, which result from various parties to a
suit filing multiple appeals. 19

The provisions regarding presentation of an appeal are rules 9 and 10 of the order. Rule 9
is a conflicting provision and essentially states that the memorandum of appeal shall be
filed in that court which issued the decree in question, which shall be endorsed and
registered by the same court. This has created debates regarding whether the provision is
mandatory and imperative, that is, whether the non compliance with this rule would
invalidate the appeal or whether this is merely an enabling provision put in place to
ensure that the court below has been made aware of the proceedings in relation to a
decree issued by it. In the case of Salem Advocate Bar Association, Tamil Nadu v. Union
of India,20 the court came to the conclusion that the requirement under Rule 9 is simply an
enabling provision and it cannot be a benchmark for determining the validity of an
appeal. All that this provision requires is a copy of memorandum of appeal, which has
been filed in the appellate court, should also be filed before the court against whose
decree the appeal has been filed. It was further held that perhaps, the intention of the
Legislature was that the Court against whose decree an appeal has been filed, should be
made aware of the fact of the filing of the appeal. It was also held that merely because a
memorandum of appeal is not filed under Order 41, Rule 9 the appeal filed in the
appellate Court a defective one.

Rule 10 of order 41 requires the appellant to furnish security for the costs of the appeal or
of the suit or both, upon being asked to do the same by the court. The court is obligated to
demand such security if the appellant resides outside India and does not have sufficient
property within India. The main purpose behind enacting this provision is to protect the
respondent from having to incur further costs in the appeal which he might never recover
from the appellant. Upon the failure of the appellant to furnish such security despite being
asked to do the same, the appeal is liable to be rejected by the court.21

The Amendment Act of 1976 also introduced Rule 3A in Order 41, which provides that
where an appeal was filed after the expiry of the limitation period, the appellant shall
submit alongwith an application which states that he had sufficient cause for not
preferring the appeal within time. The court observed in State of MP v. Pradeep

19
Jagdei v. Sampat Dube, AIR 1937 All 796
20
AIR 2003 SC 189
21
Rule 10(2) of Order 41

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Kumar22that the object of this provision was firstly to ensure that the appellant is aware of
the fact that a delayed appeal will not be entertained by the court unless is accompanied
by an application explaining such delay, and secondly, to inform the respondent that he
need not start preparing on merits without the court being satisfied that the explanation
for the delay is acceptable.

The stay of proceedings may be done in accordance with Rule 5, where the appellate
court, on being satisfied that there are sufficient grounds in the appeal to necessitate a
hearing, issues a stay of the proceedings under the decree of the lower court or its
execution. Before a stay can be granted by a court, it has to be ensured that:

 There has been no unreasonable delay in making the application;


 The appellant may have to suffer a substantial loss upon such an order of stay not
being made; and
 The applicant has to give security for due performance of the decree or order.23

An appellate court may dismiss an appeal summarily under the provisions of Rule 11, Order
41 of the CPC. If the court, after hearing the appellant or his advocate, prima facie feels that
the appeal lacks substance, then it may dismiss of the same summarily. This discretion of the
appellate court is to be exercised in a judicious manner. An arbitrary exercise of the power
conferred under this section would be violative of the basic tenets of the principles of natural
justice guaranteed to the citizens of the country.

Rule 22 of the order is a provision permitting the respondent who has not filed an appeal
against the decree to record his objections against certain aspects of the same. This is most
commonly done in cases where the decree is partly in favour of both the parties. The filing of
cross objections is merely voluntary. There is no compulsion on the respondent to file them
imposed by this provision. Upon cross objections being filed, even if the main appeal is
dismissed by the court, they will be heard and decided upon merits.24

3. POWERS OF THE APPELLATE COURT

Section 107(1)(a) and Rule 24 of Order 41 enable the appellate court to dispose of a case
finally. Where the evidence on record is sufficient to enable a court to pronounce judgement,

22
(2000) 7 SCC 372
23
Rule 5(3) and (4) of Order 41
24
Rule 22(4) of Order 41

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it may finally determine the case, even if the judgment of the trial court was based on some
ground other than that on which the appellate court proceeds.

The power to remand of an appellate court is given by Rule 23 and 23A of the Order, which,
when read together, give the court the power to direct the lower court to reopen and retry the
case. An order of remand reverses the decision of the lower court and reopens the case for
retrial except in regard to the matters decided upon by the appellate court.25 This power is to
be used sparingly and the appeal must be disposed of by the court unless an order of remand
is unavoidable.26

Section 107(1)(c), read with Order 41, Rules 25 and 26 give the appellate court the power to
frame issues and refer them for trial to the lower court and to direct the court to take the
additional evidence required. This is done in cases where the lower court has omitted to
frame any issue, try any issue or to determine any question of fact, which is essential to the
right decision of the suit upon merits. The additional evidence so taken shall form a part of
the record in the suit, and either party may file in the appellate court a memorandum of
objections to any such finding of the lower court within the time fixed by the appellate
court.27 Following this, the appellate court should hear the appeal and the hearing should not
be confined to the points on which the findings were called for.28

The appellate courts have also been conferred with the power to take additional evidence by a
combined reading of Section 107(1)(d) and Rules 27-29 of Order 41 of the CPC. The general
rule regarding this is that the appellate court shall decide an appeal on the evidence which had
been led by the parties in the trial court and that no additional evidence shall be admitted for
the purpose of disposal of the appeal. This is backed up by sub rule 1 of Rule 27. However,
an exception to this is given by Section 107(1)(d), which says that upon the conditions laid
down in Rule 27 of Order 41 being satisfied, an appellate court may take additional evidence.
These conditions may include an improper refusal by the lower court to admit evidence, or
where the additional evidence could not be produced by the concerned party at the time of
passing of the judgment by the lower court, even after an exercise of due diligence, or where
the appellate court itself requires such evidence to enable it to pronounce judgment, or for
some other substantial cause. The court, in the case of Shivajirao Nilangekar Patil v. Dr.

25
Takwani,C.K, Civil Procedure, 6th Ed., Eastern Book Company, Lucknow, at 485
26
K Krishna Reddy v. Collector, Land Acquisition, (1988) 4 SCC 163.
27
Rule 26, Order 41
28
Gogula Gurumurthy v. Kurimeti Ayyappa, (1975) 4 SCC 458.

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Mahesh Madhav Gasavi,29 held 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 have been adduced at the first
instance. Secondly, the party affected by the admission of additional evidence should have an
opportunity to rebut such additional evidence. Thirdly, that additional evidence was relevant
for the determination of the issue”.

Rule 33 of Order 41 empowers an appellate court to make whatever order it thinks fit, not
only to give or refuse relief to the appellant by allowing or dismissing the appeal, but also to
give such other relief to any of the respondents as the case may require. 30 The prime object
here is to enable the appellate court to do full and complete justice as regards to the rights of
the parties. This provision contemplates a full and fair application of judicial discretion to
determine the questions and issues raised in the appeal so that justice is rendered to both
parties. Although it is true that the language of the rule is very wide, and that no
straightjacket formula can be evolved to restrict the applicability of this rule, two
fundamental conditions must without fail be complied with before Section 33 can be
invoked- One, that the parties before the lower court must also be there before the appellate
court, and two, the question raised in the appeal must have properly arisen out of the
judgment of the lower court31. Any objection to the judgment or decree of a lower court can
be raised by the parties and consequently entertained by the appellate court upon these
conditions being satisfied. In Nirmala Bala Ghose v. Balai Chand Ghose,32 the court held that
the rule under this provision cannot be invoked merely because the appellate court does not
agree with the opinion of the court appealed from. Therefore, even though a literal reading of
Rule 33 may lead us to believe that the ambit of the power of the appellate court in this
context is very wide, the evolution of judicial decisions through the years has resulted in
certain restrictions being placed upon the exercise of judicial discretion under Rule 33 of
Order 41.

4. JUDGMENT

After hearing the parties or their pleaders, the appellate court shall pronounce the judgment in
open court, either at once or at some future date after giving notice to the parties or their

29
(1987) 1 SCC 227
30
Rameshwar Prasad v. Shaberi Lal, AIR 1963 SC 1901
31
Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54
32
AIR 1965 SC 1874

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pleaders. The same has been stated in Rule 30 of order 41 of the CPC. The judgment of the
appellate court shall be in writing and shall state

 The points of determination;


 The decision thereon;
 The reasons for the decision;
 Where the appeal is allowed and the decree of the lower court is reversed or varied;
and
 The relief to which the appellant is entitled. 33

SECOND APPEAL

The first part of this project dealt with the provisions of the Code of Civil Procedure which
included the concept of ‘First Appeals’. First appeals are therefore the appeals that go from
court where the original suit was first filed and the decree then passed. If either of the parties
to the first appeal is not satisfied with the decree of the court in the first appeal, they may then
prefer the second appeal in the appropriate court. This thus becomes the second appeal of the
suit.34

Order 42 of the C.P.C deals with the provisions relating to the second appeal. This provision
provided for is very simply put within the code, where it holds that all the provisions that
apply to the first appeal, may be required to be applicable to the second appeal also.35

The Supreme Court of India has examined various judicial precedents on the subject of
Second Appeals as held under:

1. SECTION 100 OF THE C.P.C

The provisions providing the conditions precedent for entertaining a second appeal and the
specific manner of the disposal of the suit is under Section 100, where it reads as follows:

“[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

33
Rules 31 and 32 of Order 41, Gunnamani Anasuya v. Parvatini Amarendra, (2007) 10 SCC 600.
34
Takwani,C.K, Civil Procedure, 6th Ed., Eastern Book Company, Lucknow
35
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth

13
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 exparte.

(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 sub-section 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.]”36

In the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors37, The Court held
that “The right to appeal is neither a natural nor is it an inherent right that is attached to the
litigation. Being a substantive statutory right, it has to be regulated in accordance with the
law in force at the relevant time. The conditions mentioned in the section must be strictly
fulfilled before an appeal can be maintained thereof, and no Court has the power to add or
enlarge those grounds. Therefore, the appeal cannot be decided on merit merely on equitable
grounds.” Further, there cannot be any quarrel as such that the right of appeal or revision
cannot be absolute in any circumstance and the legislature can impose the conditions for
maintaining it as such.38

A similar view has been taken by the Court in the case of Anant Mills Co. Ltd v. State of
Gujarat39 and in the case of Nandlal & Anr. v. State of Haryana40 where it was held that “the

36
Section 100, The Code of Civil Procedure 1908
37
AIR 1999 SC 2213
38
Vijay Prakash D. Mehta & Jawahar D. Mehta v. The Collector of Customes(Preventive), AIR 1988 SC 2010
39
AIR 1975 SC 1234
40
AIR 1980 SC 2097

14
right of appeal is a creature of statute and there is no reason as to 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.”41 This was further supported by the Court in the case of Shyam Kishore &
Ors. V. Municipal Corporation of Delhi & Anr42

The Court, in the case of Gujrat Agro Industries Co. Ltd. V. Municipal Corporation of the
City of Ahmedabad & Ors.43, held that the right of appeal, though statutory, can be
conditional or even qualified and such a law cannot be held to be violative of Article 14 of
the Constitution. An appeal therefore cannot be filed unless so provided for under the statute
and when a law authorises the filing of an appeal, it can impose conditions as well.

It is therefore evident from the above explanation that the right to appeal is a creation of the
statute and thus cannot be created merely by acquiescence, consent or by any other means as
it can be conferred only by the legislature and conferring a Court or authority with
jurisdiction, as it is a legislative function.44 Thus, being a substantive statutory right, it has to
be regulated in accordance with the law in force45, thus ensuring full compliance of the
conditions mentioned in the provision that creates it. Thus, the Court has no power to enlarge
the scope of those grounds mentioned in the statutory provisions46. A second appeal therefore
cannot be decided merely on equitable grounds as it lies only within a substantial question of
law, which is something distinct from a substantial question of fact. 47 The Court cannot
entertain a second appeal unless a substantial question of law is involved, as the second
appeal does not lie on the ground of erroneous findings of fact based on the appreciation of
the relevant evidence48. The existence of a substantial question of law is a condition
precedent for entertaining the second appeal, and on the failure to do so, the judgement
cannot be maintained49. Thus, the existence of a substantial question of law is a sine-qua- non
for the exercise of jurisdiction under the provisions of Section 100 of the C.P.C.50 It is

41
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth
42
AIR 1992 SC 2279
43
(1999) 4 SCC 468
44
Santosh Hazari v. Purushottam Tiwari, AIR 2001 SC 965
45
Sarjas Raj & Ors. V. Bakshi Inderjeet Singh, (2005) 1 SCC 598
46
Manicka Poosali & Ors. V. Anjalai Ammal & Anr., AIR 2005 SC 1777
47
Mst. Sugani v. Rameshwar Das & Anr, AIR 2006 SC 2172
48
Hero Vinoth v. Seshammal, AIR 2006 SC 2234
49
P. Chandrashekharan & Ors. V. S. Kanakarajan & Ors., (2007) 5 SCC 669
50
Kashmir Singh v. Harnam Singh & Anr, AIR 2008 SC 1749

15
therefore the obligation of the Court to further the clear intent of the Legislature so as to not
frustrate it by ignoring the same.51

Here, in the case of Jai Singh v. Shakuntala52, The Court held that “It is only in very
exceptionl cases and on extreme perversity that the authority to examine the same in
extension stands permissible – it is a rarity rather than regulatory and thus is can be safely
concluded that while there is no prohibition as such, but the power to scrutiny can only be
had in very exceptional circumstances and upon proper circumspection.”53

While dealing with this issue, the Court in Leela Soni & Ors.v. Rajesh Goyal & Ors54,
observed as under: “There can be no doubt that the jurisdiction of the High Court under
Section 100 of the C.P.C is confined to the framing of substantial questions of law involved
in the second appeal and to decide the same. Section 101 of the C.P.C provides that no
second appeal shall lie except on the grounds mentioned in Section 100. It is thus clear that
no second appeal can be entertained by the High Court on questions of fact, much less can it
interfere in the findings of fact recorded by lower appellate courts. This is so, not only when
it becomes possible for the High Court to take a different view of the matter but also when
the High Court finds that the conclusions on the questions of fact recorded by the first
appellate court are erroneous.”55

2. SECTION 103 OF THE C.P.C


“[103. 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 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.]”56

51
V. Ramaswamy v. Ramachandran & Anr., (2009) 14 SCC 216
52
AIR 2002 SC 1428
53
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth
54
(2001) 7 SCC494
55
P.K Majumdar, Commentary on the Code of Civil Procedure, 1908, 5 th Ed., Orient Publishing Company
56
Section 100, The Code of Civil Procedure 1908

16
At this point, it becomes apt to refer to Section 103 of the C.P.C which enables the High
Court to determine the issue of fact in a cast to case situation.

This section, as noted above, authorises the High Court to determine any issue which is
necessary for the disposal of the second appeal provided that the evidence on record is
sufficient, in any of the following two situations:57

A. When that issue has not been determined both by the trial court as well as the
lower appellate court; or
B. When both -the trial court as well as the appellate court or the lower appellate
court have wrongly determined any issue on a substantial question of law
which can properly be the subject matter of the second appeal under Section
100 of the C.P.C.

In the case of Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors58, the question arose as
to whether the compromise decree had been obtained by fraud. This Court held that though it
is a question of fact, but because none of the courts below had pointedly addressed the
question of whether the compromise in the case was obtained by perpetrating fraud on the
court, the High Court was justified in exercising its powers under Section 103 of the C.P.C. to
go into the question.59

Thus, the requirements as in cases such as Shri Bhagwan Sharma v. Smt. Bani Ghosh60 and
Kulwant Kaur & Ors. V. Gurdial Singh Mann by LRs. & Ors61, as specified in Section 103
and nothing short of it will bring it within the ambit of Section 100 since the issue of
perversity will also come within the ambit of substantial question of law as noticed and
analysed as above. The legality of finding fact cannot but be termed to be a question of law 62.
It is further reiterated that there must be a definite finding to that effect in the judgement of
the High Court so as to make it evident that Section 100 of the C.P.C stands complied with.63

57
P.K Majumdar, Commentary on the Code of Civil Procedure, 1908, 5 th Ed., Orient Publishing Company
58
AIR 1978 SC 1329
59
Achintya Kumar Saha v. M/s Nanee Printers & Ors, AIR 2004 SC 191
60
AIR 1978 SC 1329
61
AIR 2001 SC 1273
62
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth
63
P.K Majumdar, Commentary on the Code of Civil Procedure, 1908, 5 th Ed., Orient Publishing Company

17
Powers further exercised under Section 103 of the C.P.C can be exercised by the High Court
only if the core issue involved in the case is not decided by the trial court or the appellate
court and the relevant material is available on record to adjudicate upon the said issue.64

Thus, before the powers under Section 103 of the C.P.C can be exercised by the High Court
in a second appeal, the following conditions must be fulfilled:65

I. Determination of an issue must be necessary for the disposal of the appeal


II. The Evidence on record must be sufficient to decide such an issue; and
III.
(a) Such an issue should not have been determined wither by a trial curt or by
the appellate court or by both; or
(b) Such issue should have been wrongly determined either by the trial cout or
by the appellate court, or by both by reason of a decision on the substantial
question of law.

If the above conditions are not fulfilled, the High Court cannot exercise its powers under
Section 103 of the C.P.C.66

Thus, it is evident that Section 103 of the C.P.C is not an exception to Section 100 of the
C.P.C nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing
Section 103 C.P.C in service, the High Court has to record a finding that it had to exercise
such power, because it found that findings that are recorded by the court below stood
validated because of perversity67. More so, such power can be exercised only in exceptional
circumstances and with circumspection, where the core question involved in the case has not
been decided by the court below.68

Thus, in view of the above analysis, the law on the issue can be summarised to the effect that
a second appeal lies only on a substantial question of law and it is necessary to formulate a
substantial question of law before the second appeal is decided.69

64
Haryana State Electronics Development Corporation Ltd. & Ors. V. Seema Sharma & Ors, (2009) 7 SCC 311
65
P.K Majumdar, Commentary on the Code of Civil Procedure, 1908, 5 th Ed., Orient Publishing Company
66
Achintya Kumar Saha v. M/s Nanee Printers & Ors, AIR 2004 SC 191
67
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth
68
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth
69
V. Ramaswamy v. Ramachandran & Anr., (2009) 14 SCC 216

18
3. SECTION 107 OF THE C.P.C
“[ 107. Powers of the Appellate Court - (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.]”

The provisions of S. 107 as elucidated by Order XLI, Rule 27, are clearly not intended to
allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his
case and fill up omissions in the court of appeal. Under Rule 27, cl. (1) (b), it is only where
the appellate court ‘requires’ it, that is, finds it needful that additional evidence can be
admitted.70

It may be required to enable the court to pronounce judgment, or for any other substantial
cause, but in either case it must be the court that requires it. The legitimate occasion for the
exercise of this discretion is not whenever before the appeal is heard a party applies to adduce
fresh evidence but when on examining the evidence as it stands, some inherent lacuna or
defect becomes apparent.71

It is, however, a rule of practice that when there is conflict of oral evidence of the parties on
any matter in issue and the decision hinges upon the credibility of the witnesses, then unless
there is some special feature about the evidence of a particular witness which has escaped the
trial judge’s notice or there is a sufficient balance of improbability to displace his opinion as
to where the credibility lies, the appellate court should not interfere with the finding of the
trial judge on a question of fact.72

70
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth
71
P.K Majumdar, Commentary on the Code of Civil Procedure, 1908, 5 th Ed., Orient Publishing Company
72
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth

19
It would not detract from the value to be attached to a trial judge’s finding of fact that the
judge does not expressly base his conclusion upon the impressions he gathers from the
demeanour of witnesses.73

The appellate court has to bear in mind that it has not the advantage which the trial judge had
in having the witnesses before him and of observing the manner in which they deposed in
court. This certainly does not mean that when an appeal lies on facts, the appellate court is
not competent to reverse a finding of fact arrived at by the trial judge.

The rule is—and it is nothing more than a rule of practice—that when there is conflict of oral
evidence of the parties on any matter in issue and the decision hinges upon the credibility of
the witnesses, then unless there is some special feature about the evidence of a particular
witness which has escaped the trial judge’s notice or there is a sufficient balance of
improbability to displace his opinion as to where the credibility lies, the appellate court
should not interfere with the finding of the trial “judge on a question of fact.74

The duty of the appellate court in estimating the value of oral testimony is to see whether the
evidence taken as a whole can reasonably justify the conclusion which the trial court arrived
at or whether there is an element of improbability arising from proved circumstances which,
in the opinion of the court, outweighs such finding.

In an appeal against a trial court decree, when the appellate court considers an issue turning
on oral evidence, it must bear in mind that it does not enjoy the advantage which the trial
court had in having the witnesses before it and of observing the manner in which they gave
their testimony.75

When there is a conflict of oral evidence on any matter in issue and its resolution turns upon
the credibility of the witnesses, the general rule is that the appellate court should permit the
findings of fact rendered by the trial court to prevail unless it clearly appears that some
special feature about the evidence of a particular witness has escaped the notice of the trial

73
Takwani,C.K, Civil Procedure, 6th Ed., Eastern Book Company, Lucknow
74
Vol.1, A.N.Saha’s, The Code of Civil Procedure, 6 th Ed., Premier Publishing Company
75
Takwani,C.K, Civil Procedure, 6th Ed., Eastern Book Company, Lucknow

20
court or there is sufficient balance of improbability to displace its opinion as to where the
credibility lies.76

In this connection, reference may usefully be made to W.C. Macdonald v. Fred Latimer77,
where the Privy Council laid down that when there is a direct conflict between the oral
evidence of the parties, and there is no documentary evidence that clearly affirms one view or
contradicts the other, and there is no sufficient balance of improbability to displace the trial
court’s finding as to the truth of the oral evidence, the appellate court can interfere only on a
very clear proof of mistake by the trial court.

In Watt v. Thomas78, it was observed: “it is a cogent circumstance that a Judge of first
instance, when estimating the value of verbal testimony, has the advantage (which is denied
to courts of appeal) of having the witnesses before him and observing the manner in which
their evidence is given.” This was adverted to with approval by the Privy Council in Sara
Veeraswamy v. Talluri Narayya79, (deceased) and found favour with the Supreme Court in
Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh80.

It seemed to their lordships of the Supreme Court that this approach should be placed in the
forefront in considering whether the High Court proceeded correctly in the evaluation of the
evidence before it when deciding to reverse the findings of the trial court.81

The principle is one of practice and governs the weight to be given to a Ending of fact by the
trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence
by the trial court suffers from a material irregularity or is based on inadmissible evidence or
on a misreading of the evidence or on conjectures and surmises the appellate court is entitled
to interfere with the finding of fact.82

A somewhat restricted view has been taken by the Allahabad High Court in the cases
discussed below.

76
Vol 2., Banerjee, AK. Commentaary on the Code of Civil Procedure, 1908, Ed. 2007, Dwivedi & Company,
Allahabad
77
AIR.1929 P.C. 15
78
[1947] A.C. 484
79
AIR 1949 PC 32
80
AIR 1951 SC 120
81
Vol 2., Banerjee, AK. Commentaary on the Code of Civil Procedure, 1908, Ed. 2007, Dwivedi & Company,
Allahabad
82
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth

21
No doubt, the conclusion of the trial court which has an advantage of hearing the oral
evidence and watching the demeanour of witnesses and has, therefore, a better opportunity of
appreciating the oral evidence should not be lightly disturbed by the first appellate court.83

But this rule is nothing more than a rule of practice and by invoking this rule of practice the
High Court in second appeal cannot interfere with the conclusions of the first appellate court
when they are fully supported by relevant and admissible material on record. A perusal of the
judgment of Sarju Pershad Ramdeo Sahu v. Jwaleshwari84, makes it clear that what was
observed by the Supreme Court was that the rule was nothing more than a rule of practice.

The legal position in the matter of reappraisal of evidence by the appellate court under S. 107,
C.P.C. is that the findings of the first appellate court should be sustainable on admissible
evidence on the record, and it is not necessary that judgment of the first appellate court
should come into close quarters with that of the trial court.85

It was observed in Chandra Shekhar’s case that the finding of the trial court on a question of
fact arrived at by appreciation of evidence can be reversed by the lower court in reappraisal
of the evidence.

Thus where in the suit for possession of a land, there being no documentary evidence as to
the title of the parties to the suit land, the trial court after appreciating the evidence upheld the
credibility of the plaintiff’s witnesses and decreed the suit, and in appeal the lower appellate
court on appraisal of the evidence reversed the finding of the trial court as to the credibility of
plaintiff’s witnesses, the reversal was legal and proper.86

Where the decision of the lower appellate court is based upon a consideration of the material
on record, the appellate court is not required to meet each and every reason advanced by the
trial court; and as such interference in appeal is unwarranted.87

Although it is generally desirable that the appellate court should not appraise the oral
evidence for itself, yet S. 96 enjoins upon an appellate court to hear the appeal and to arrive at
its own conclusion about the controversy in suit.88 It is not bound by the findings recorded by

83
Vol 2., Banerjee, AK. Commentary on the Code of Civil Procedure, 1908, Ed. 2007, Dwivedi & Company,
Allahabad
84
AIR 1951 SC 120
85
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth
86
Takwani,C.K, Civil Procedure, 6th Ed., Eastern Book Company, Lucknow
87
Vol.1, A.N.Saha’s, The Code of Civil Procedure, 6th Ed., Premier Publishing Company
88
Sarju Pershad Ramdeo Sahu v. Jwaleshwari, AIR 1951 SC 120

22
the trial court in the same manner as a second appellate court is bound by the findings of fact
recorded by a lower appellate court.

The trial court is in a better position to appreciate the oral testimony of the witnesses than the
appellate court as it has an advantage to watch the demeanour of the witnesses. However, it is
open to the appellate court to disturb that appreciation of evidence in cases where the trial
court has misread the evidence or has overlooked the glaring circumstances of the case.89

When in the order of the trial court it has been recorded that the order has been passed by
consent of parties, the appellate court cannot go into the question of correctness of such
recording in the order. It is well-settled principle that the parties by consent cannot override a
provision of a statute.

It is the duty on the part of the Court to satisfy that the compromise order satisfies the
statutory requirements and such consent order is not opposed to any law, inasmuch as the
court cannot direct to do a thing which is contrary to law.

The trial court set aside the dismissal passed in departmental proceeding on finding that
proper opportunity of hearing was not given in departmental proceedings and unauthorised
absence from duty having been regularised charge of misconduct does not survive. Lower
appellate court said nothing about finding opportunity of hearing but confirmed finding that
charge of misconduct did not survive.90

The other finding stood confirmed. But lower appellate court cannot remand the case to
punishing authority. High Court dismissed the second appeal summarily without a adverting
to inconsistent judgment. Supreme Court held it improper, set aside the order of High Court
and upheld the judgment and decree of trial court setting aside dismissal.

APPEALS FROM ORDERS

An order is an adjudication of the court which does not fall under “decree”. Certain orders
that are issued by the courts can be appealed against by virtue of Order 43 and Section 104 of
the Civil Procedure Code, which enumerates specific orders for the same. No appeal lies
against other orders. In addition to this, Section 105 of the code enacts that every order
89
Vol 2., Banerjee, AK. Commentary on the Code of Civil Procedure, 1908, Ed. 2007, Dwivedi & Company,
Allahabad
90
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth

23
whether appealable or not, except an order of remand, can be attacked in an appeal from the
final decree on the ground i) that there is an error, defect or irregularity in the order and ii)
that such error, defect or irregularity affects the decision of the case. Therefore, when an
interlocutory order is appealable, the party against whom such order is made is not bound to
prefer appeal against it. Section 105 makes it clear that an order appealable under Section 104
may be questioned in this section in an appeal from the decree in the suit, even though no
appeal has been preferred against the interlocutory order.91

APPEALS BY INDIGENT PERSONS

Any person entitled to prefer an appeal, who is unable to pay the fee required for the
memorandum of appeal, may present an application accompanied by a memorandum of
appeal and may be allowed to appeal as an indigent person, subject to the provisions relating
to suits by indigent persons. [Order XLIV, Rule 1(1)].92

Where an application is rejected under Rule 1, the Court may, while rejecting the application,
allow the applicant to pay the requisite court fee within such time as may be fixed by the
Court or extended by it from time to time;93 and upon such payment, the memorandum of
appeal in respect of which such fee is payable shall have the same force and effect as if such
fee had been paid in the first instance. (Order XLIV, Rule 2).

Where an applicant, referred to in Rule 1, was allowed to sue or appeal as an indigent person
in the Court from whose decree the appeal is preferred, no further inquiry in respect of the
question whether or not he is an indigent person shall be necessary if the applicant has made
an affidavit stating that he has not ceased to be an indigent person since the date of the decree
appealed from; but if the Government Pleader or the respondent disputes the truth of the
statement made in such affidavit, an enquiry into the question aforesaid shall be held by the
appellate court, or under the orders of the appellate Court, by an officer of that court.94

Where the applicant is alleged to have become an indigent person since the date of the decree
appealed from, the enquiry into the question whether or not he is an indigent person shall be

91
Maharajah Moheshur Sing v. Bengal Govt., (1859) 7 Moo IA 283
92
The Code of Civil Procedure, 1908
93
Vol 2., Banerjee, AK. Commentary on the Code of Civil Procedure, 1908, Ed. 2007, Dwivedi & Company,
Allahabad
94
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth

24
made by the appellate Court95 or, under the orders of the appellate Court, by an officer of that
Court unless the appellate Court considers it necessary in the circumstances of the case that
the inquiry should be held by the court from whose decision the appeal is preferred. (Order
XLIV, Rule 3).

By the amendment made in the year 1976 sub-rule (2) of Rule 1 of Order XLIV of the Code
of Civil Procedure was deleted. The result is that when an application made under Rule 1 of
Order XLIV, C.P.C. comes up for hearing, the only question which has now to be considered
is whether the applicant is an indigent person or not.96

Any question relating to the merits of the case does not arise for consideration at that stage. If
the application is granted, then the memorandum of appeal would have to be registered as an
appeal and disposed of in accordance with law.97

When the appeal is posted for admission the appellant has to satisfy the Court that the appeal
merits admission. At that stage the appellant may draw the attention of the court not merely
to the judgment and decree appealed from but also to all the relevant records in the case to
substantiate his claim that the appeal deserves to be admitted98. Rule 2 of Order XLIV as it
now stands, requires that where an application is rejected under Rule 1 thereof the Court may
while rejecting the application allow the applicant to pay the requisite court fee within such
time as may be fixed by the court or extended by it from time to time99 and, upon such
payment, the memorandum of appeal in respect of which such fee is payable shall have the
same force and effect as if such fee had been paid in the first instance100. If the requisite court
fee is paid the appeal has to be registered and posted for admission.

A rejection of the application made under Rule 1 of Order XLIV now can only mean that the
court is not satisfied about the claim of the applicant that he is an indigent person and nothing
more. It does not, however, amount to a finding that the appeal is not a fit one for admission
on merits.101

95
Vol 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis- Butterworth
96
Vol.1, A.N.Saha’s, The Code of Civil Procedure, 6 th Ed., Premier Publishing Company
97
Chayamani Tripathy v. Dharmananda Panda, AIR 1993 Ori 23
98
Vol 2., Banerjee, AK. Commentary on the Code of Civil Procedure, 1908, Ed. 2007, Dwivedi & Company,
Allahabad
99
Dahal Rai v. Mt. Gaura, AIR 1916 All 327
100
O.P Neelam Hosiery Works v. State Bank of India, 1994 (3) L.J.R. 542
101
B. Rajkumar Patra vs Union Of India And Ors, AIR 1951 Ori 153

25
Otherwise Rule 2 of Order XLIV which permits payment of court fee after the application
under Rule 1 is rejected, would become meaningless. Since what was rejected was the
application under Rule 1 of Order XLIV of the Code of Civil Procedure, the High Court
should have made an order as required by Rule 2 thereof granting time to the appellant to pay
the requisite court fee and permitting him to prosecute the appeal. The High Court failed to
do so even when an application was made for that purpose. The order of the High Court was
clearly unsustainable.

26
CONCLUSION

The appeal, although not expressly defined in the Code, has various defining characteristics
which includes the fact that if an appeal is provided against a decree or order, any person who
is aggrieved by such a decree will have the right to appeal to a relevant appellate court which
is empowered by the provisions of CPC to entertain such an appeal. The Civil Procedure
Code, which governs the procedural and, to an extent, substantive law related to appeals,
contains various provisions which consolidate the conditions and requirements necessary to
constitute an appeal. In addition, it also puts forth concepts like cross objections, secondary
appeals, and the position of law regarding suits filed by indigent persons. Both the
substantive parts (Sections 96 to 112) and procedural parts(Orders 41 to 45) of the Code
taken together serve to define the ambit of appeals, parties to appeals and the powers of the
courts regarding appeals. These provisions are necessitated by the fact that the aggrieved
parties in a suit cannot have an end to their remedies by a mere adjudication by a court of first
instance. The law must take into consideration the possibility of potential errors which could
be made by the judicial authorities. Hence, the institution of appeals is vital in the rendering
of justice to the people. The incorporation of the principle of estoppels in Section 96 is a
further indication of the intention of the legislature to guarantee the conduct of justice. The
court has also played a vital role in ensuring that there has been effective application of the
provisions of the CPC. In instances where the statute was vague or ambiguous, the judiciary
intervened and interpreted the intention of the legislature and thus the effective carriage of
justice proceeded unhampered. This was seen in case of Rule 9, Order 43, where the court
interpreted the provision to be enabling, not mandatory.

Hence, one can learn a great deal regarding the evolution of justice and the importance of
procedural laws in guaranteeing the rights of the people upon a detailed examination of the
law on appeals in India. Appeals have always played an important part ensuring that rights of
the people and duties of the legal institutions are harmonious and synchronised. Therefore, it
has indeed been a learning experience to research upon this issue and examine the practical
aspect of the right to appeal as envisaged by the Code of Civil Procedure. This project has
helped us positively conclude that it is not simply the statutory or procedural aspects of law
that have an effect on the rights and obligations of parties, but also the interpretation of
judges regarding the intention of the legislature.

27
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Shankar v. Krishnaji, 1970 1 SCR 322

Deshmukh & Co v. Avinash V Khandekhar, 2005 Vol. 107(3) 679 (Bom)

Garikapati Veeraya v. N. Subbaiah Chaudhary, AIR 1957 SC 540

Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393

Shyam Sunder v Ram Kumar , (2001) 8 SCC 24

Adi Pherozshah Gandhi v. HM Seervai, (1970) 3 SCC 573

Krishna v. Mohesh, (1905) 9 CWN 584

H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492

Ajudhia Prasad v. Balmukund, (1866) 8 All 354.

Banwari Lal v. Chando Devi, (1993) 1 SCC 581.

Yeshwant Deorao v Walchand Ramchand, AIR 1951 SC 16.

Jagdei v. Sampat Dube, AIR 1937 All 796

Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2003 SC 189

State of MP v. Pradeep Kumar , (2000) 7 SCC 372

K Krishna Reddy v. Collector, Land Acquisition, (1988) 4 SCC 163.

Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gasavi, (1987) 1 SCC 227

Gogula Gurumurthy v. Kurimeti Ayyappa, (1975) 4 SCC 458.

Rameshwar Prasad v. Shaberi Lal, AIR 1963 SC 1901

Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54

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Nirmala Bala Ghose v. Balai Chand Ghose, AIR 1965 SC 1874

Gunnamani Anasuya v. Parvatini Amarendra, (2007) 10 SCC 600.

Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors , AIR 1999 SC 2213

Vijay Prakash D. Mehta & Jawahar D. Mehta v. The Collector of Customes(Preventive),


AIR 1988 SC 2010

Anant Mills Co. Ltd v. State of Gujarat , AIR 1975 SC 1234

Nandlal & Anr. v. State of Haryana , AIR 1980 SC 2097

Shyam Kishore & Ors. V. Municipal Corporation of Delhi & Anr ,AIR 1992 SC 2279

Gujrat Agro Industries Co. Ltd. V. Municipal Corporation of the City of Ahmedabad & Ors
,(1999) 4 SCC 468

Santosh Hazari v. Purushottam Tiwari, AIR 2001 SC 965

Sarjas Raj & Ors. V. Bakshi Inderjeet Singh, (2005) 1 SCC 598

Manicka Poosali & Ors. V. Anjalai Ammal & Anr., AIR 2005 SC 1777

Mst. Sugani v. Rameshwar Das & Anr, AIR 2006 SC 2172

Hero Vinoth v. Seshammal, AIR 2006 SC 2234

P. Chandrashekharan & Ors. V. S. Kanakarajan & Ors., (2007) 5 SCC 669

Kashmir Singh v. Harnam Singh & Anr, AIR 2008 SC 1749

V. Ramaswamy v. Ramachandran & Anr., (2009) 14 SCC 216

Jai Singh v. Shakuntala , AIR 2002 SC 1428

Leela Soni & Ors.v. Rajesh Goyal & Ors , (2001) 7 SCC494

Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors , AIR 1978 SC 1329

Achintya Kumar Saha v. M/s Nanee Printers & Ors, AIR 2004 SC 191

Shri Bhagwan Sharma v. Smt. Bani Ghosh ,AIR 1978 SC 1329

29
Kulwant Kaur & Ors. V. Gurdial Singh Mann by LRs. & Ors, AIR 2001 SC 1273

Haryana State Electronics Development Corporation Ltd. & Ors. V. Seema Sharma & Ors,
,(2009) 7 SCC 311

Achintya Kumar Saha v. M/s Nanee Printers & Ors, AIR 2004 SC 191

W.C. Macdonald v. Fred Latimer ,AIR.1929 P.C. 15

Watt v. Thomas , [1947] A.C. 484

Sara Veeraswamy v. Talluri Narayya ,AIR 1949 PC 32

Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh ,AIR 1951 SC 120

Dahal Rai v. Mt. Gaura, AIR 1916 All 327

O.P Neelam Hosiery Works v. State Bank of India, 1994 (3) L.J.R. 542

B. Rajkumar Patra vs Union Of India And Ors, AIR 1951 Ori 153

Chayamani Tripathy v. Dharmananda Panda, AIR 1993 Ori 23

Books

Sarkar’s The Code of Civil Procedure, SC Sarkar and Prabhas C Sarkar,2011,11th edn, Vol.1

Takwani,C.K, Civil Procedure, 6th Ed., Eastern Book Company, Lucknow

Volume 2, Mulla, The Code of Civil Procedure, 17th Ed., B.M. Prasad, Lexis Nexis-
Butterworth

P.K Majumdar, Commentary on the Code of Civil Procedure, 1908, 5th Ed., Orient Publishing
Company

Volume 2., Banerjee, AK. Commentary on the Code of Civil Procedure, 1908, Ed. 2007,
Dwivedi & Company, Allahabad

Volume 1, A.N.Saha’s, The Code of Civil Procedure, 6th Ed., Premier Publishing Company

30
Other authorities

Louis Blom, “Final Appeal: A Study of the House of Lords in its Judicial Capacity”

Law Commission’s Fifty fourth Report

Statutory Provisions

Rule 3, Order 41 of the Civil Procedure Code, 1908

Rule 10(2) of Order 41 of the Civil Procedure Code, 1908

Rule 5(3) and (4) of Order 41 of the Civil Procedure Code, 1908

Rule 22(4) of Order 41 of the Civil Procedure Code, 1908

Rule 26, Order 41 of the Civil Procedure Code, 1908

Rules 31 and 32, Order 41 of the Civil Procedure Code, 1908

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