Prolog

All men are fallible. Making mistake is a nature of human being. Judges are
human too. So they are not any exception to such nature. A judge may commit a
mistake too on the course of his duties. A judge who has not committed an error is
yet to be born. The provisions of appeal, revision and review has been made by the
statute for a step to remove or reduce such error or mistake made by any judge.
Appeal, revision and review all three are very important provisions of law.
These provisions were part of law for centuries. These provisions are some major
steps on the trying of removing or reducing the error on the legal proceeding.
Because one of the reason behind the birth of law was to establish the right of
public. But when the judgment of any proceeding of law goes wrong it become
worthless. People try to get the shelter of law at the last steps. When law failed to
give shelter to such person, the person becomes helpless and lose his confidence in
law. So, it is a common principle that law should not make mistake. But it is very
hard not to make mistake or error. For this reason, appeal, revision and review are
established in the provisions of law.
 ~1~

Part 01: Appeal

 ~2~

Part 01: Appeal

Origin & Basic Concept of the Term “Appeal”
The duty of a Judge is to determine the question come before them for judgment. To give a judgment
on the question in issue, the judge has to relay on certain oral and documentary evidences and also
interpreted the law. A judge as a human being can make mistake on determining the question, because no
human being is totally errorless. It is the nature of the human being to make mistake. And for this reason
provision of appeal has been appeared in law.

Origin of the Term “Appeal”:

The term ‘appeal’ has been derived from the Latin word ‘appellare’ which means ‘to accost’
‘address’, ‘summon’ etc., in early 14c. The word ‘appellare’ is iterative of another Latin word ‘appellere’
which means ‘to prepare’ from ‘ad’ which means ‘to’ and ‘pellere’ which means ‘to beat’ or ‘to drive’.

In c. 1300, the word ‘appellare’ was adopted to Anglo-French and was transformed into ‘apeler’ to
call upon accuse. The term ‘apeler’ latter transformed into ‘apel’ and much latter into ‘appel’ which in
1600s became ‘appeal’ which means ‘to call an authority’ in legal sense.

Diagram: 01
 ~3~

Definition of Appeal:
Generally the term “appeal” means to request earnestly. But in law it has a different meaning.
According to law it is a judicial request to the superior court to review any judgment of lower court. It is
1
the “judicial examination of the decision by a higher court of the decision of an inferior court.”
Whatsoever, the term “appeal” has not been defined in any of our Legal Code, e.g. the CPC, 1908, CrPC,
1898 etc., so we have to depend on various legal expats and case references.

In re Determination of Relative Rights to Use of Waters of Deschutes River, it was held that, the
word “appeal” has no absolutely fixed and definite meaning but may be used to denote the review by a
2
court of the action of some board or administrative officer.
3
Sir Dinsha Mullah in Nagendra Nath Dey vs. Suresh Chandra Dey states that, “there is no
definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt any application by
a party to an Appellate Court, asking to set aside or reverse a decision of a subordinate court, is an appeal
within the ordinary acceptation of the term.”
4
In Nagendra Nath Dey vs. Suresh Chandra Dey it was held that, “appeal is a remedy provided by
law for getting the decree of the lowest court nullified, and is in fact, a complaint made to a higher court
that the decree of the lower court is unsound and wrong.”

In another case it was held that, “appeal is a right of entering a superior court and invoking its aid and
interposition to redress an error of the court below.” 5
According to C.K. Takwani, “appeal is a proceeding by which the defeated party approaches a
6
higher authority or court to have the decision of a lower authority or court reversed.”
According to P.G. Osborn, appeal means “any proceeding taken to rectify an erroneous decision of a
court by bringing it before a higher court”7
In Wharton’s Law-Lexicon the term ‘appeal’ has been defined as “the 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.” 8
According to Ellsworth, C.J., “appeal is the removal of a cause from a Court of inferior to one of
superior jurisdiction, for the purpose of obtaining a review and retrial.” 9

st
1 Chamber’s 21 Century Dictionary (1997), p. 63
2 108 p. 2d 276, 281, 282, 165
3 AIR 1932 PC 165
4 Ibid
5 Attorney General vs. Sillem, (1864) 10 HLC 704
th
6 Civil Procedure, 7 Ed., p. 475
7 A Concise Law Dictionary (Sweet & Maxwell), p. 21
th
8 9 Ed., p. 48
9 3 Dell. (US) 321
 ~4~

In Mozley & Whiteley’s Law Dictionary, “appeal is a complaint to a superior court of an injustice
done by an inferior one. The party complaining is styled as appellant, the other party the responded.” 10
So, it can be said that, the word “appeal” means the right of carrying a particular case from an inferior
to a superior court with a view to ascertaining whether the judgment is sustainable. In another words, an
appeal is a process for requesting a formal change to an official decision.

History of the Term “Appeal”:

Although appellate courts have existed for thousands of years, common law countries did not
incorporate an affirmative right to appeal into their jurisprudence until the nineteenth century. Appellate
courts and other systems of error correction have existed for millennia. During the first dynasty of
Babylon, Hammurabi and his governors served as the highest appellate courts of the land. Ancient Roman
law employed a complex hierarchy of appellate courts, where some appeals would be heard by the
emperor. Additionally, appellate courts have existed in Japan since at least the Kamakura Shogunate
(1185–1333 CE). During this time, the Shogunate established hikitsuke, a high appellate court to aid the
state in adjudicating lawsuits. In the Eighteenth century, William Blackstone observed in his
Commentaries on the Laws of England that appeals existed as a form of error correction in the common
law during the reign of Edward III of England.

Although some scholars argue that "the right to appeal is itself a substantive liberty interest," the
notion of a right to appeal is a relatively recent advent. Common law jurisdictions were particularly "slow
to incorporate a right to appeal into either its civil or criminal jurisprudence." For example, the United
States first created a system of federal appellate courts in 1789, but a federal right to appeal did not exist
in the United States until 1889, when Congress passed the Judiciary Act to permit appeals in capital cases.
Two years later, the right to appeals was extended to other criminal cases, and the United States Courts of
Appeals were established to review decisions from district courts.

nd
10 2 Ed., p. 19
 ~5~

General Rules as to “Appeal”

Most of the common law system countries laws are divided into two parts, one is known as civil law
which deal with enforcement of the private rights and the other is known as criminal law which deal with
the enforcement of pubic right or the right ensured by the state. As there is two types of law so there is
two different procedures for the enforcement of such law thus,

‰ Civil Procedure for the enforcement of civil law; and

‰ Criminal Procedure for the enforcement of criminal law.

Under the two different procedures of law, there are two types of appeal,

‰ Civil Appeal; and

‰ Criminal Appeal.

Though both the types of appeal are not same from all the point, there are certain common and general
rules as to appeal. The general rules as to appeal are enunciated as under,

Appeal: Not an Inherent Power:

The term ‘inherent’ means existing as a natural or basic part of something. According to Black’s Law
Dictionary, inherent means, “an authority possessed without its being derived being another. A right,
11
ability or faculty of doing a thing, without receiving that right, ability, or faculty from another.”
The power of appeal is given as of right. But a right of appeal is not a natural or inherent right. 12 It
was held in Carilli v. Hersey, that, an appeal is a creature of statute, not a constitutional or inherent
13
right. Appeal does not lie as a matter of course, being merely a creature of law. There is no right of
appeal unless it is given clearly and in express terms by a statue. 14 Where in any case the statue does not
recognize right of appeal from any suit or case no appeal shall lie in this case.

Appeal is Continuation of Proceeding of Lower Court:

An appeal is a continuation of a suit. 15 A decree passed by an Appellate Court would be construed to
be a decree passed by the Court of the first instance. An appeal is virtually a rehearing of the matter. The
appellate court possesses the same powers and duties as the original court.
16
In Dayawati vs. Inderjit , speaking for the Supreme Court, Hidayatullah, J., stated that, “an appeal
has been said to be ‘the right of entering a superior Court, and invoking its aid and interposition to redress

11 2nd Ed
12 Ganga Bai vs. Vijay Kumar, (1974) 2 SCC 393
13 303 Mass. 82, 20 N.E.2d 492, 495
14 Ibid
15 Garikapati Veeraya vs. N. Subbiah Chaudhry, AIR 1957 SC 540
16 AIR 1966 SC 1423
 ~6~

the error of the Court below’. The only difference between a suit and an appeal is that an appeal ‘only
reviews and corrects the proceedings in a cause already constituted but does not create a cause.”

On the other hand, a test of appeal as the continuation of proceeding can be done by considering the
doctrine of res-judicata. According to the doctrine a matter which has been finally decided by the court in
a prior suit, cannot be the subject-matter of any former suit. In case of appeal the doctrine of res-judicata
cannot be applied, because appeal is not the filing of a new suit for the subject matter but the next stage of
the previous proceeding of the lower court.

However, when a plaint is rejected, an appeal filed against it cannot be said to be a continuation of the
17
original proceedings. Legislature can provide for an exception to the normal rule that appeal is a
18
continuation of suit.

Appeal Lies on Both Matter of Law & Fact:

A general rule as to appeal is that, appeal lies both matter of law and fact. This rule is specifically
mentioned in the CrPC, 1898, but this rule is not mentioned in anywhere of the CPC, 1908. But as a
general rule it is maintainable for both civil and criminal appeal.

Accrual of the Right of Appeal:

19
The right of appeal is a substantive right and not merely a matter of procedural. It is a vested right
and accrues to the litigant and exists as on and from the date the lis commences and although it may be
actually exercised when the adverse judgment is pronounced, such right is to be governed by the
prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date
of its decision o at the date of filling of appeal. 20
A law changing the right to appeal cannot be applied retrospectively unless the law is expressly given
retrospectively unless the law is expressly given retrospective effect or it is retrospective by necessary
intendment.21 On the other hand, a statute creating a new right of appeal is prospective in the absence of a
provision to the contrary and the right cannot be availed of by parties to proceedings commenced before
22
the statute came into force.

Burden in Appeal:
The general rule as to burden of proof is that, whoever desires any court to give judgment as to any
legal right or liability dependent on the existence of facts which he asserts, must prove that those facts
exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on
23
that person.

17 Chandrakant vs. Voman Mahadev, AIR1989 Bom

18 Umedmal vs. Chopra, AIR 1967 Bom 514
19 Garikapati Veeraya vs. N. Subbiah Chaudhry, AIR 1957 SC 540
20 Ibid.
21 Colonial Sugar Refining vs. Irving, (1905) AC 369
22 De & G Mills vs. ITO, 1927 PC 242
23 S. 101of the Evidence Act, 1872
 ~7~

So, in case of appeal, the burden of proving that the judgment by the lower court is erroneous or is
wrong. If all he can show is a nicely balanced calculation which led to the equal possibility of the
judgment going in favor of either party, he cannot succeed. 24

Elements of Appeal:
To constitute an appeal there are certain ingredients or elements. The following three are the basic
elements to constitute an appeal:

a decision (usually a judgment of a court or the ruling of an administrative authority);

a person aggrieved (who is often, though not necessarily, a party to the original proceeding); and
a reviewing body ready and willing to entertain an appeal.

24 Nabakishore vs. Upendra, AIR 1956 SC 29

 ~8~

Civil Appeal
The main topic of our discussion is civil appeal. Before entering to our main topic let us gather some
ideas about what does it mean by civil law and which rights are of civil nature.

Civil Law:
The word “civil” is derived from Latin word “civis” which means “subject to citizen”. It is used as
opposed to ‘criminal’ meaning ‘belonging to an accusation’. Where a law regulates the legal rights
between subject and subject (civis and civis) it is called the civil law as distinguished from criminal law
which regulates the rights between the States and its subject (civitas and civis).

Rights of Civil Nature:

Legal rights which are relating to person, property, contract or status, which a person enjoys as a
citizen of the State are rights of civil nature, and a suit in which such civil rights are in question is a suit of
a civil nature. A civil appeal can be made when an error has occurred in any civil suit to which appeal is
granted.

Civil Appeal:
When in a suits which is of civil nature, any material error has occurred as regard to any matter of law
or matter of fact, the aggrieved party can filled an appeal to the appellate court if right of appeal is granted
by the Code. And such appeal is called a civil appeal.

As it is stated before that appeal as a creature of law, the right of appeal must be given by the statute.
So, the right of civil appeal is also granted by our statute. The procedure as regard to civil appeal is
governed by the Code of Civil Procedure, 1908 and the Civil Courts Act, 1887. The main provisions as to
civil appeal is governed by the CPC, 1908. The general provisions as to civil appeal is propounded in,

sections 96 to 112 of the CPC, 1908;

orders 41, 43, 44 and 45 of the CPC, 1908

and which appeal lies to which court is specifically mentioned in sections 20 and 21 of the Civil Courts
Act, 1887.

The right to file an appeal in case of any civil suit has been conferred by section 96 of the Code of
Civil Procedure, 1908.

Conditions as to Civil Appeal:

There are certain conditions to file a civil appeal. To file a civil appeal under section 96 of the Code
of Civil Procedure, 1908, the following conditions must be fulfilled:

the suit must be a suit of civil nature under section 9 of the CPC, 1908;
 ~9~

the appeal must be made against a “decree”, that is, a conclusive determination of “the rights of
the parties with regard to all or any of the matters in controversy in the suit”; or
the appeal must be made against an order made appealable by the CPC, 1908; the

party appealing must have been adversely affected by such determination.25

Who may Appeal:

The ordinary rule is that a party to a suit adversely affected by the decree or any of his
representatives-in-interest may file an appeal. 26 But a person who is not a party to a decree or order may,
with the leave of the court, prefer an appeal from such decree or order if he is either bound by the order or
27
is aggrieved by it or is prejudicially affected by it.
Generally speaking, a decision cannot be said to adversely affect a person unless it will operate as res
28
judicata against him in any future suit.
The question whether a party is or is not adversely affected by a decree is a question of fact to be
determined in each case according to its particular circumstances and no rule of universal application can
be laid down.

From the above general principles, the following persons are entitled to appeal under section 96 of the
CPC, 1908:

a party to the suit who is aggrieved or adversely affected by the decree;

if such person is dead his legal representative; 29
a person claiming under a party to the suit or a transferee of the interests of such party, who, so
far as such interest in concerned, is bound by the decree, provided his name is entered on the
record of the suit;
30
a guardian ad litem appointed by the court in a suit by or against a minor of disable person;
any other person, with the leave of the court, if he is adversely affected by the decree. 31

Who cannot Appeal:

If a party agrees not to appeal or waives his right to appeal, he cannot file an appeal and will be bound
by an agreement if otherwise such agreement is valid. 32 Such an agreement, however, must be clear and
unambiguous. Finally, the vested right of appeal is destroyed if the court to which an appeal lies is
33
abolished altogether without any forum being substituted in its place.

25 State of Punjab vs. Amar Singh, (1974) 2 SCC 70

26 Ibid
27 Ibid
28 Ibid
29 Sec. 146 of CPC, 1908
30 Sec. 147 of CPC, 1908
31 Vithu vs. Bhima, ILR (1891) 15 Bom 145
32 Ameer Ali vs. Inderjeet Singh, (1871) 14 MIA 203 (PC)
33 Daji Saheb vs. Shankar Rao, AIR 1956 SC 29
 ~10~

Right to Civil Appeal under the CPC, 1908:

The Code of Civil Procedure, 1908, majorly recognizes two types of rights to appeal. And under the
two forms of appeal there are various form of appeal. Under the Code, there is two grounds where the
court recognizes appeal,

appeal from decree passed by the Court (S. 96-99 of CPC, 1908);
and appeal from order passed by the Court (S. 104-106).

These two rights of civil appeal is given under two different sections of the Code. Appeal from decree is
given by section 96 of the Code, whereas the former, which is right to appeal from order passed by the
court is given by section 104 of the Code. There are various other appeal recognized by the Code under
these two types of appeal. A diagram is given below, showing various types of civil appeal recognized by
the Code.

Diagram: 02

A detailed discussion on these two types of appeal is made in the next part.
 ~11~

Civil Appeal under Section 96 of CPC, 1908:

It has been stated before that the right of civil appeal has been conferred by section 96 of the CPC,
1908. The section deal with the right to appeal from a decree passed by the Court. According to the
section,

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time
being in force, an appeal shall lie from every decree passed by any Court exercising original
jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

So, it is clear by the language of sub-section (1) of the section that, this Code has given right to make
an appeal from every decree passed by the Court.

On the other hand, under sub-section (2) of the section, a civil appeal may be made against an ex
parte passed by the court.

Sub-section (3) of the section, has made it clear by its language that, no appeal can be made against a
decree passed by the court with the consent of parties to the suit.

The provisions as to appeal from original decree is enunciated in sections 96 to 99 of CPC, 1908. A
detailed discussion is made below about these appeals under the CPC, 1908.

Appeal from Original Decree:

According to the language of sub-section (1) of section 96, an appeal can be made from every decree
made by the Court. First, let us gather some ideas about decree.

Y Decree:
Definition of decree has been given by sub-section (2) of section 2 of the CPC, 1908. According
to the section,
“‘Decree’ means the formal expression of an adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the parties with regard to all or any of the matters
in controversy in the suit and may be either preliminary or final. It shall be deemed to include the
rejection of a plaint and the determination of any question within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.”

The sub-section has also given an explanation of the term ‘decree’. The explanation of sub-section (2)
enunciated that,
“A decree is preliminary when further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes of the suit. It may be
partly preliminary and partly final.”
 ~12~

So, now it is clear that decree is the formal expression of an adjudication which determines the right
of the parties with regard to the matter in controversy. According to the definition decree includes,

the original decree of the

court; rejection of plaint; and
the determination of question within section 144 of the Code.

So, in the above mentioned three grounds a civil appeal can be instituted as the statute has given right to
do so.

Appeal from Ex Parte Decree:

Sub-section (2) of section 96 enunciated that, an appeal can be made from any original decree passed
ex parte by the court. First of all, let us gather some ideas about “ex parte decree”.

Y Ex Parte Decree:
The term “ex parte” is a Lain term, which means, “of the one part” or “on one side only” by or for
one party etc. According to Black’s Law Dictionary, ex parte means “done or made at the instance
and for the benefit of one party only, and without notice to, or argument by, any person adversely
34
interested.”
An ex parte decree is a decree passed in the absence of the defendant. Where a plaintiff appears
and the defendant does not appear when the suit is called out for hearing and if the defendant is duly
served, the court may hear the suit ex parte and pass a decree against the defendant.

One of the remedies available to the defendant, against whom an ex parte decree is passed, is to file
an appeal under section 96(2) of the CPC. The CPC, 1908 has given the defendant to file an appeal against
an ex parte decree under section 96(2) and it is clear by the language of the sub-section which says, “An
appeal may lie from an original decree passed ex parte.” Even when the proceeding is ex parte, the
plaintiff has to proof his case. The absence of the defendant cannot give the plaintiff an occasion to obtain
an ex parte decree without producing evidence in support of the claim. 35 A party, through appeal, can
demonstrate that evidence adduced by the plaintiff on which ex parte order has been passed is not
sufficient to establish a prima facie case to pass a decree or even as the evidence prima facie case to pass a
decree or even as the evidence prima facie is deficient for passing a decree. 36 A party against whom an ex
parte decree is passed may file an appeal challenging the legality of the ex parte decree on the grounds
that,

the evidence on the basis of which the ex parte decree was passed was no sufficient to establish a
prima facie case;
that the evidence was inadmissible;
that the suit itself was not maintainable or that the suit was barred by any law; and
that the ex parte decree was obtained by practicing fraud etc.
th
34 8 Ed., p. 616
35 Bangladesh vs. Abdul Wadud, 25 DLR (SC) 90
36 Laxmibai vs. keshrimal, AIR 1995 MP 179
 ~13~

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.

No Appeal against Consent Decree:

Sub-section (3) of section 96 of CPC, 1908, states that, no appeal shall lie against a decree passed by
the court with the consent of the parties. Sub-section (3) of section 96 of CPC, 1908, is based on the
principle of estoppel. It presupposes that the parties to an action can expressly or by implication waive or
37
forego their right of appeal by any lawful agreement or compromise or even by conduct. The
consideration for the agreement involved in a consent decree is that both the sides give up their right of
appeal.38
Where the plaintiffs elected to relinquish all the reliefs except one for saving the suit from the bar of
limitation and to secure some benefit for themselves and the decree was brought about on the basis of
understanding and consent of the parties, the decree is a consent decree and the plaintiffs are bound by the
principle of estoppel and cannot be permitted to argue for the same reliefs which have been abandoned by
them. On the same principle the defendant is also barred from preferring an appeal from the impugned
39
judgment.
40
Compromise decree is non-appealable even if the compromise is disputed. If a party desires to have
41
a consent decree set aside on the ground of coercion or fraud, his remedy lies in a separate suit. But to
bar an appeal the consent decree must be valid. There are however, three cases in which decrees, though
passed with the consent of the parties, can be appealed against. These are,

where the appellant appeals on the ground that it was not a decree passed with the consent of the
parties, as where the lawyers of the parties have consented without any authority from their
respective clients;
where the consent decree is passed without an order recording compromise;
where the appellant was not a party to the consent decree, and the decree affects him prejudicially.

37 Parveen Banu vs. BHBFC, 42 DLR (AD) 234

38 Katikara Chintamani Dora vs. Guntreddi Annamanaidu, (1974) 1 SCC 567
39 Parveen Banu vs. BHBFC, 42 DLR (AD) 234
40 Sabirti vs. savi, ILR 12 Pat 359
41 Kewal vs. Shiv, AIR 1970 P&H 176
 ~14~

Provisions & Procedures as to Appeals from Original

Decrees under Section 96
Sections 96 to 99 deal with the substantive provisions of civil appeal from original decree whereas
Order 41 of CPC deals with the procedural aspect of civil appeal from original decree. These provisions
and procedures as to civil appeal from original decree is discussed as under:

Appeal against Preliminary Decree:

An appeal lies against a preliminary decree. 42 Though, there is no specific section stating the right to
file an appeal against a preliminary decree, but if we notice the language of section 97 of CPC, 1908, it
will be clear that the Code has impliedly given the right of appeal against a preliminary decree. According
to section 97 of CPC, 1908

“Where any party aggrieved by a preliminary decree passed after the commencement of this Code
does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal
which may be preferred from the final decree.”

So, it is clear by the language of the section that there is a right of appeal from any preliminary decree
passed by any Court. On the other hand, section 96 states that an appeal may be filed against any decree
passed by the Court and the definition of decree also include preliminary decree as decree. So, an appeal
may be filed against a preliminary decree.

Appeal from Final Decree Where no Appeal from Preliminary Decree:

Section 97 of the CPC, 1908, enunciated that, “Where any party aggrieved by a preliminary decree
passed after the commencement of this Code does not appeal from such decree, he shall be precluded
from disputing its correctness in any appeal which may be preferred from the final decree.” The language
of the section makes it clear that, a failure to prefer appeal against a preliminary decree will preclude a
party from challenging the preliminary decree in an appeal against the final decree. 43 Thus an appeal
against the final decree will be confined to matters subsequent to the passing of the preliminary decree
and a defect in the proceeding prior to passing the preliminary decree cannot be a ground of attack of the
final decree.44 When, however, the preliminary decree is passed by a court having no jurisdiction, it may
be disregarded in an appeal against the final decree. 45
If an appeal filed against the preliminary decree is allowed and the decree is set aside or varied or
modified, the final decree on the basis of such preliminary decree shall fall. 46 An appeal against a
preliminary decree is nor barred by reason of a final decree having been passed before presentation of the

42 Phoolchand vs. Gopal Lal, AIR 1967 SC 1470

43 Kaushalya vs. Baijanth, AIR 1961 SC 790
44 Ibid
45 Golam Hassain vs. Khan Mohammad, PLD 1954 Lah 655
46 Kanhiyalal vs. Tribeni, AIR 1914 All 380
 ~15~

appeal,47 nor passing of a final decree during pendency of an appeal against the preliminary decree will
48
affect the appeal which will be heard and decided.

Decision where Appeal Heard by Two or More Judges:

Section 98 of the CPC, 1908, provides procedure when an appeal is heard by two or more judges. The
section states that,

(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in
accordance with the opinion of such Judges or of the majority (if any) of such Judges.
(2) Where there is no such majority which concurs in a judgment varying or reversing the decree
appealed from, such decree shall be confirmed.

Provided that where the Bench hearing the appeal is composed of two Judges belonging to a
Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a
point of law, they may state the point of law upon which they differ and the appeal shall then be heard
upon that point only by one or more of the other Judges, and such point shall be decided according to
the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first
heard it.

(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters
patent of High Court Division.

So, according to this section when an appeal is heard by a Bench of two or more Judges, the appeal
will be decided in accordance with the opinion of the judges or on the opinion of the majority of such
judges. No reference can be made under this section if the judges differ on a question of fact, because the
section makes it clear that the power to refer this section can only be exercised only I there is difference of
opinion on a point of law. 49 Where there is a difference of opinion between two judges on point of fact,
lower court’s decree has to be confirmed. 50
51
This section has no application where the appeal is heard by one judge. Where the Bench consisting
of two judges differ in their opinion on a point of law, they may state the law upon which they differ and
then the appeal will be heard by one or more judges and such point shall be decided according to the
52
opinion of the majority. When the judges are evenly divided in their opinion, the decision of the court
53
below will stand.

47 Baswant vs. Kallappa, AIR 1938 Bom. 222

48 Kanhiyalal vs. Tribeni, AIR 1914 All 380
49 Har Prasad vs. Fazal, AIR 1933 PC 83
50 Tej Kaur vs. Kripal, AIR 1995 SC 1681
51 Uttara Bank vs. Syed Abidur Reza, 56 DLR 461
52 RAJUK vs. Jobed Ali, 1997 BLD 341
53 Supreme Court vs. Shafiuddin, 10 BLT (AD) 50
 ~16~

Error not affecting the Merits or Jurisdiction:

Section 99 of the CPC, 1908 provides procedure for any error in any decree not affecting the merits
or jurisdiction, on which an appeal has been preferred. According to the section,

“No decree shall be reserved or substantially varied, nor shall any case be remanded, in appeal on
account of any misjoinder of parties or causes of action or any error, defect or irregularity in any
proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.”

The object of this section is to prevent technicality from defeating the ends of justice. 54 It provides
that a decision, which is correct on merits and has been delivered by a court having jurisdiction, should
55
not be upturned merely on ground o technical defect or immaterial defects. The principle underlying this
section is that when a case has been decided n merits, it should not be reversed unless it has resulted in
failure of justice.

Provision as to Second Appeal:

A single right of appeal is more or less a universal requirement. But provision as to second appeal is
not that much necessary. The Law Commission observer, “an unqualified right of first appeal may be
necessary for the satisfaction of the decreetal litigant but a wide right of second appeal is more in the
nature of luxury.”56
nd
Provision as to 2 appeal was granted by the Code of Civil Procedure, 1908. But the provisions as to
2nd appeal has been omitted by the Law Reforms Ordinance, 1978. So, now there is no right of 2 nd appeal
as regard to civil appeal.

Form of Appeal:
It has been stated before that Order 41 of CPC deals with the procedural aspect of civil appeal from
original decree. Rule 1 of order 41 states that a civil appeal shall be preferred in the form of a
memorandum. The expressions appeal and memorandum of appeal denote two distinct things.

An appeal is the judicial examination by a higher court of the decision of a lower court, whereas, the
memorandum of appeal contains the grounds on which judicial examination is invited. For purposes of
57
limitation and for purposes of the rules of the court, a memorandum of appeal is required to be filed.
According to rule 1 of Order 41 of CPC, 1908, in order to present an appeal validly, the following
requirements must be complied with,

it must be in the form of a memorandum setting forth the grounds of objections to the decree
appealed from;
it must be signed by the appellant or his pleader;

54 Mohammad Hossain vs. Kishva Nandan, AIR 1937 PC 233

55 Kiron Singh vs. Chaman Pawan, AIR 1954 SC 340
56 Law Commission’s Fifty-fourth Report, p. 84
57 Lakshmiratan Engg. Works Ltd. vs. Commr. (Judicial), Sales Tax, AIR 1968 SC 488
 ~17~

it must be presented to,

the court ; or
such officer as the court appointed; and
the memorandum must be accompanied by a certified copy of the judgment.

Contents of Memorandum of Appeal:

Sub-rule (2) of rule 1 of Order 41, CPC, 1908, propounded the contents to be contained in the
memorandum of appeal. According to the sub-rule the memorandum of the appeal must follow the
following requirements:

the memorandum must set forth concisely;

it must be made under distinct heads, containing the grounds of objection to the decree appealed
from;
it shall not contain any argument or narrative; and
the grounds for appeal shall be numbered consecutively.

Registration of the Memorandum:

Under the provision of rule 9 of Order 41, CPC, 1908, the memorandum of appeal shall be registered
in the procedure mentioned in the rule. According to the rule, “Where a memorandum of appeal is
admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of
presentation, and shall register the appeal in a book to be kept for the purpose.”

Grounds which may be taken in Appeal:

Rule 2 of Order 41, CPC, 1908, precludes the appellant from urging, except with the leave of the
court, any grounds of objection not set forth in the memorandum of appeal. The Appellate Court, however,
is entitled to decide an appeal even on a ground not set forth in the memorandum of appeal. 58 But when
the Appellate Court suo motu proposes to do so, the party affected must be given an opportunity to contest
the case on that ground.

Rejection or Amendment of Memorandum:

According to the provision of rule 3 of Order 41, CPC, 1908, where the memorandum of appeal is not
in a proper form, the court may reject it or return it to the appellant for the purpose of being amended.
Here the rejection or amendment is a purely discretionary power of the Appellate Court. The Appellate
Court can on its own its own discretion reject the memorandum if it is not prepare in a proper form
prescribe by the Code, or it can instead of rejecting the memorandum return it back to the appellant for the
proper amendment. In the latter case, the Appellate Court will fix a time within which the memorandum
shall be amended. But the Code does not prescribe any consequence if the memorandum does not
amended within the time fixed by the Appellate Court.

58 Yeshwant Deorao vs. Walchand Ramchand, AIR 1951 SC 16

 ~18~

Whatsoever, sub-rule (2) of rule 3 of Order 41, CPC, 1908, states that when the Appellate Court
reject any memorandum, it shall record its ground for doing so in writing. And where the memorandum is
amended instead of rejecting, the judge or the officer as the judge appoint in this behalf, shall sign or
initial such amendment.

Appeal by one of the Plaintiff/Defendant upon a Common Ground:

Rule 4 of Order 41, CPC, 1908, provides that where a decree proceeds upon a ground common to all
the plaintiffs or defendants, any one of the plaintiffs or defendants may appeal from the whole decree, and
thereupon the Appellate Court can reverse or vary the decree in favor of all the plaintiffs or the defendants,
59
as the case may be.
The general rule is that on an appeal by one of the several plaintiffs or defendants, an Appellate Court
can reverse or vary the decree of the trial court only in favor of the party appealing. Rule 4 of Order 41,
CPC, 1908, is an exception to this principle. It confers on the court the power to make an appropriate
order needed in the interests of justice by reversing or varying the decree in favor of all the plaintiffs or
defendants, as the case may be. In such a case, an appeal by one is virtually treated as an appeal on behalf
60
of all, though they may not be parties to the appeal. Rule 4 is based on two considerations,
firstly, to give the Appellate Court full power to do justice to all parties, whether before it or not;
and
secondly, to prevent contradictory decisions in the matter in the same suit.

Stay of Proceedings:
The provision of Civil Procedure is different than the Criminal Procedure. In a criminal proceeding,
to execute the judgment the complainant need not do anything, but in case of a civil suit, the decree holder
must applied to the court for the execution of such decree. But when an appeal has been preferred from
such decree for which an application for execution of decree has been made, what will be the
consequence? The procedure for such case is mentioned in rules 5 to 8 of Order 41, CPC, 1908. Rules 5-8
of Order 41, CPC, 1908, provides for stay of an execution of a decree or an order. According to the
provision of rule 5 of Order 41, an appeal shall not operate as the stay of proceedings under a decree or
order appealed, not shall the execution of a decree be stayed by reason of filing of an appeal from such
order.

But the Code has referred power for the stay of such proceeding or execution of decree to the
Appellate Court. The Appellate Court if want can make an order for the stay of such execution. If an
application is made for the stay of any execution to the Appellate Court, and if the appellant can show
sufficient grounds for such stay, the Appellate Court may order the execution to be stayed. Sub-rule (3) of
rule 5 of Order 41, CPC, 1908, has propounded the ground to be satisfied by the appellant for the stay of
execution. These grounds are,

substantial loss may result to the party applying for stay of execution unless the order is made;

59 Lal Chand vs. Radha Krishan, (1977) 2 SCC 88

60 Jagdei vs. Sampat Dube, AIR 1937 All 796
 ~19~

the application has been made without unreasonable delay; and

security has been given by the applicant for the due performance of such decree or order as may
ultimately be binding upon him.

According to rule 6 of Order 41, CPC, 1908, where an order of execution of decree is made from
which an appeal is made, the Court which passed the appeal after the showing of sufficient causes by the
appellant, shall order the decree holder to furnish security for such execution of decree.

Summary Dismissal of Appeal:

Rule 11 of Order 41, CPC, 1908, deals with the power of the Appellate Court to dismiss an appeal
summarily. This rule refers to a stage after the memorandum of appeal has been filed and the appeal has
been registered under Rule 9. Rule 11 embodies a general principle that whenever and appeal is preferred,
the Appellate Court is entitled, after hearing the appellant or his advocate, to reject the appeal summarily
if prima facie there is no substance in it.

Abatement of Appeal:
The Code does not specifically enunciated any provision as to the abatement of appeal. But the
provisions as to the abatement of suit will apply to the abatement of appeal. The rules as regard to
abatement of suit is enunciated in Order 22 of CPC, 1908. According to the Order when any soul plaintiff
or defendant or plaintiff or defendant on death of whom the right of sue does not survive to the surviving
plaintiff or defendant, and the legal representative of such plaintiff failed to make an application to the
court to be a party to the suit and in case of death of defendant the plaintiff failed to make such application
to make the legal representative a party to such suit, the suit or appeal shall be abate.

Days of Hearing & Adjournment:

If the appeal is not summarily dismissed in accordance with rule 11of Order 41, CPC, 1908, the
Appellate Court shall fix a day for hearing of the appeal, and the notice of such date of hearing shall be
61
served upon the respondent with a copy of the memorandum.
Rule 12A, of Order 41, 1908, specify the amount of adjournment which shall be grant by the
Appellate Court. According to the rule, the Appellate Court shall not grant adjournment for each party
more than three adjournment. And if any adjournment granted to a party beyond limited adjournment fix
by the rule, such party shall be liable to pay an amount not less than two hundred taka and not more than
one thousand taka to be determined by the Appellate Court.

If such provision is not accomplice with by any party, if the party is the appellant, the appeal shall be
dismissed, and if such party is the responded, the appeal shall be liable to be disposed ex parte. After such
dismissal or ex parte hearing, if the party make an application, for setting aside such disposal or ex parte
decree, and pay an amount not less than one thousand take and not more than two thousand taka the court
may set aside such dismissal or ex parte decree.

61 Rule 12, Order 41, CPC, 1908

 ~20~

The Appellate Court shall not order any adjournment at any stage of hearing on its own motion
without recording in writing the reasons for doing so.

Procedures at Hearing:
The procedures at hearing of the appeal is propounded in rules 16 to 21 of Order 41 of the Code of
Civil Procedure, 1908. These provisions are discussed in brief as under:

Y Right to Begin:
The appellant has a right to begin. Rule 16 of Order 41, CPC, 1908 has ensured this right.
According to the rule,
(1) On the day fixed, or on any other day to which the hearing may be adjourned, the
appellant shall be heard in support of the appeal.
(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against
the appeal, and in such case the appellant shall be entitled to reply.
Y Dismissal of Appeal and Restoration:
The Appellate Court can dismiss the appeal if the appellant does not appear on the day of
hearing of the appeal. This provision is stated in rule 17(1) of Order 41, CPC, 1908. On the other
hand according to rule 18 of Order 41, CPC, 1908, the Appellate Court may dismiss the appeal if
it is found that the notice to the respondent has not been served in consequence of the failure of
the appellant to deposit, within the period fixed, the sum required to defray the cost of serving the
notice.
Whatsoever, according to rule 19 of Order 41, CPC, 1908, the Appellant Court can restore
the appeal if the appellant applied to the court for such restoration with showing sufficient causes
for non-appearance or non-deposition of the money. Under rule 19A the Appellate Court can
restore the appeal without any evidence for satisfaction for avoiding delay, but in such the
appellant must make an application with affidavit within 30 days.
Y Ex parte Hearing and Rehearing:
According to rule 17(2) of Order 41, CPC, 1908, the Appellate Court shall hear the appeal ex
parte it the respondent does not appear on the day fix for hearing.
According to rule 21 of Order 41, CPC, 1908, the Appellate Court can rehear such appeal if
the respondent apply to the Appellate Court for such rehearing with showing sufficient cause for
his non-appearance, and the court shall rehear such appeal on such terms as to cost or otherwise
as it thinks fit to impose upon him.
Whatsoever, according to rule 21A of Order 41, CPC, 1908, the Appellate Court may rehear
such appeal without maintaining the procedure under rule 21 of Order 41, CPC, 1908, but in such
case the respondent must make an application with affidavit within 30 days and pay such cost not
exceeding three thousand taka as it thinks fit.

Y Addition of Respondent:
Rule 20 of Order 41, CPC, 1908, has given the Appellate Court a special power by which the
Appellate Court can add additional respondent. Under the provision of the rule the Appellate Court
may adjourn the hearing and add any additional respondent to the appeal if it appears to the court that
 ~21~

there is any other party who was a party to the original suit in the court from whose decree the appeal
is preferred but has not been made a party to the appeal, is interested in the result of the appeal.

Cross Objection/Cross Appeal:

Where the suit is partly decided in favor of the plaintiff and partly in favor of defendant and the
aggrieved party (either the plaintiff or defendant) files an appeal, the opposite party may adopt any of the
following courses:

He may prefer an appeal from that part of the decree which is against him. Thus, there may be
two appeals against the same decree; one by the plaintiff and the other by the defendant. They are
known as “cross appeal”. Both these appeal will be disposed together.
He may not file an appeal against the part of the decree passed against him but may take objection
against that part. Such objection are called “cross objections”.
Without filing a cross-appeal or cross-objection, he may support the decree,
on the grounds decided in his favor by the trial court; or
even on the grounds decided against him.62
Rule 22 of Order 41, CPC, 1908, is a special provision permitting the respondent who has not filed an
appeal against the decree to object to the said decree by filing cross-objections in the appeal filed by the
opposite party. Filing of cross objections by the respondent, however, is optional and voluntary.
According to the language of the rule,

(1) Any respondent, though he may not have appealed from any part of the decree, may not only
support the decree on any of the grounds decided against him in the Court below, but take any
cross-objection to the decree which he could have taken by way of appeal, provided he has filed
such objection in the Appellate Court within one month from the date of service on him or his
pleader of notice of the day fixed for hearing the appeal, or within such further time as the
Appellate Court may see fit to allow.
(2) Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as
they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) Unless the respondent files with the objection a written acknowledgment from the party who may
be affected by such objection or his pleader of having received a copy thereof, the Appellate
Court shall cause a copy to be served, as soon as may be after the filing of the objections, on such
party or his pleader at the expense of the respondent.
(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection,
the original appeal is withdrawn or is dismissed for default, the objection so filed may
nevertheless be heard and determined after such notice of the other parties as the Court thinks fit.
(5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an
objection under this rule.

62 Ramanbhai Ashabhai vs. Dabhi Ajitkumar Fulsinji, AIR 1965 SC 669

 ~22~

Y Cross-Appeal:
The term “cross-appeal” has not been defined by the Code of Civil Procedure, 1908. Whatsoever,
the term “cross-appeal” means, “where both parties to a judgment appeal therefrom, the appeal of
63
each is called a ‘cross-appeal’ as regards that of the other.”
So, it can be said that, a cross appeal is an appeal filed by both the appellant and respondent as
against each other.

Y Cross-Objection:
According to Black’s Law Dictionary, the term “objection” means, “an act of objecting, that
which is, or may be, presented in opposition; an adverse reason or argument; a reason for objecting or
opposing or a feeling of disapproval.”64 The term ‘cross objection’ means an objection made by the
respondent against any ground of any appeal filed by the appellant.

Y Distinction as to Cross-Objection & Cross-Appeal:

A cross objection is like cross appeal. It has thus all the trappings of an appeal. The mere
distinction between the two lies in the fact that whereas cross objections form part of the same record,
cross appeals are two distinct and independent proceedings. 65

Y Who may File Cross-Objections?

According to rule 22 of Order 41, Code of Civil Procedure, 1908, a cross objection can be filed
by the respondent. But to file a cross objection by the respondent under the rule it must be seen that, if
he could have filed an appeal against any part of the decree.

Y Against whom Cross-Objections may be Filed:

Ordinarily, cross objection may be filed only against the appellant. In exceptional cases, however,
66
one respondent may file cross objections against the other respondents. For instance, when the
appeal by some of the parties cannot effectively be disposed of without opening the matter as between
the respondents inter se; or in a case where the objections are common as against the appellant and the
67
co-respondent.

Y When Cross-Objections may be Filed?

The provisions of Order 41, Rule 22, CPC, 1908, contemplates right to file cross objections only
when an appeal is filed and also such appeal is admitted by the Appellate Court and notice is issued

th
63 Black’s Law Dictionary, 4 Ed.
TH
64 4 Ed.
65 N. Jayaram Reddy vs. Revenue Divisional Officer, (1979) 3 SCC 578
66 Panna Lal vs. State of Bombay, AIR 1963 SC 1516
67 Ibid
 ~23~

68
on the respondent. No cross objections, can be filed if no appeal is filed by the appellant or an
appeal is filed but has not been admitted.

Y Ambit & Scope:

Where the respondent has filed cross objections, even if the original appeal is withdrawn or
69
dismissed for default, they will be heard and decided on merits. But where the appeal is dismissed
as time barred70, or has abated71, or is held to be not maintainable 72, the cross objections cannot be
73
heard on merits as they are contingent and dependent upon the hearing of the appeal.

Y Cross-Objection & Cross-Appeal:

An appeal filed beyond the period of limitation may be treated as cross objections under rule 22
of Order 41, CPC, 1908. On the other hand cross appeal is an appeal which is filed by the respondent
after the filing of another appeal by the appellant. Whatsoever, a cross appeal may be treated as cross
74
objection only if such appeal is filed after the other appeal and not if it is filed before that appeal.

Y Form of Cross-Objections:
Sub-rule (2) of rule 22, Order 41, CPC, 1908, has prescribed the form in which the objection shall
be made. According to the sub-rule cross objections shall be in the form of a memorandum of appeal
and they should be served on the party affected thereby or his pleader.

Y Limitation:
As a general rule everything has its limitation. So, there is limitation of period for filing a cross
objection. Rule 22(1) of Order 41, CPC, 1908, has prescribed the time period for filing a cross
objection, within which a cross objection have to file. Otherwise the right to file a cross objection will
be elapsed. According to the rule, cross objections can be filed within one month from the date of
service on the respondent or his pleader of the notice of the date fixed for hearing of the appeal. The
appellate court may, at its discretion, extend the period within which cross objections can be filed. 75

Y Procedure at Hearing:
The appeal and the cross objections should be heard together and they should be disposed of by a
common judgment incorporating the decisions on both the appeal as well as the cross objections. 76

68 Balwant Singh vs. State of M. P., 1986 MP LJ 571

69 Rule 22(4), Order 41, CPC, 1908
70 Charity Commr. vs. Padmavati, AIR 1919 Mad 784 (FB)
71 Abdullamiya Hamdumiya vs. Mohamedmiya Gulamhusein, AIR 1949 Bom 276
72 Kashiram Senu vs. Narendrakumar, AIR 1941 Bom 242
73 N. Jayaram Reddy vs. Revenue Divisional Officer, (1979) 3 SCC 578
74 Nripjit Kaur vs. Sardat Satinder Singh, AIR 1955 Punj 190
75 Vishwa Nath vs. Maharaji, AIR 1977 All 459
76 Krishan Gopal vs. Haji Mohd. Muslim, AIR 1969 Del 126
 ~24~

Y Court Fees:
Cross objection is like an appeal. Court fee, is therefore, payable on cross objection like that on
memorandum of appeal.77

Y Cross-Objection by Indigent Respondent:

The term “indigent” is known as “pauper” in our Code of Civil Procedure, 1908. According to
rule 22(5) of Order 41, CPC, 1908, propounded that, a pauper respondent can file a cross objection.

Limitation as to Appeal:
Every rights given by the statute have its limitation which is also propounded by the statute. So, every
rights created by the statue is limited to certain time period, so does appeal. The right of appeal is not a
lifetime unlimited right. There is certain time limitation prescribed by the law, within which an appeal
must be filed. Otherwise the right will be abated. The Code of Civil Procedure, 1908, does not prescribe
the period within which an appeal to be filed, just confers a right to appeal. The Limitation Act, 1963,
however, provides the period for filing appeals. It states that an appeal against a decree can be filed,

in the High Court Division within 90 days from the date of passing of the decree to be appealed
against.; and
78
in any other court within 30 days from the date of passing of the decree to be appealed against.

Judgment:
Rule 30 and 31 of Order 41, CPC, 1908, stated the procedure of pronouncing the judgment of appeal.
According to rule 30 of Order 41, CPC, 1908, “The Appellate Court, after hearing the parties or their
pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose
decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment
in open Court, either at once or on some future day of which notice shall be given to the parties or their
pleaders.” So, the Appellate Court will pronounce the judgment of appeal in the open court in the day of
hearing or in any further day as the court thinks fit and must a notice shall be given to the party in that
respect.

Rule 31 of Order 41, CPC, 1908, propounded the contents of the judgment of the appeal. According
to the section the judgment of an appeal shall contain the following:

the points for determination;

the decision thereon;
the reasons for the decision; and,
where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and
it shall be signed by the judge or the judges concurring therein, and will be dated.

77 Superintending Engineer vs. B. Subba Reddy, (1999) 4 SC 1747

78 Art, 116, The Limitation Act, 1963
 ~25~

Decree in Appeal:
Rules 35-37 of Order 41, CPC, 1908, prescribes the procedure and requirements to be contained in
the decree in appeal. The decree of an appellate court shall contain,

the date and the day on which the judgment was pronounced;
number of the appeal, names and description of the parties and a clear specification of the relief
granted or other adjudication made;
the costs of the appeal and of the suit and by whom they are to be paid; and
the date and signature of the judge or judges who passed it;
79
a dissenting judge need not sign the decree.

79 Rule 35, Order 41, CPC, 1908

 ~26~

Appeal from Order

Adjudication of a Court of law is classified into, decree and order. It has already been stated, the
Code of Civil Procedure, 1908, recognizes right of civil appeal in two grounds,

appeal from original decrees (S. 96, CPC, 1908); and

appeal from order of the Court (S. 104 & Or. 43, CPC, 1908).

Before entering to our main discussion let us gather some ideas about the term judicial “order”.

Order:
In section 26 of the CPC, 1908, it has been enunciated that, every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed. Order 7 of the Code, states the
procedure of submitting the plaint. But by what other manner a suit can be instituted without the
presentation of plaint has not been specified by the Code.

A suit is ordinarily a civil proceeding instituted by a plaint whereas a case is a civil proceeding
commenced by an application. All these cases are registered as miscellaneous cases and are numbered
accordingly.

A suit is concluded by passing a decree while a case is concluded by passing an order. So, order is the
decision of a case. Definition of order has been given by the CPC, 1908. Section 2(14) of the Code has
defined order. According to the section, “order” means the formal expression of any decision of a Civil
Court which is not a decree. So, order is the formal expression of any decision. Orders are of two types,

appealable order or order form which an appeal is recognized by the Code; and
non-appealable order or order from which no appeal lies as of right.

As our subject to discuss is appeal form order, we will discuss only about order from which appeal lies as
of right.

Appealable Order:
A miscellaneous case ends with the final order. But the Code of Civil Procedure, 1908, does not
recognize the right of appeal from all the final order passed from a miscellaneous case. Appeal lies from
that final order against which right to appeal is expressly given by the Code.

Interlocutory orders in the course of a trial court proceeding is not generally reviewable by appeal
until judgment has been passed. This is the final judgment rule. But certain interlocutory orders have been
treated as appealable orders in the Code. This exception to the final judgment rule is on the basis that a
particular type of order may be either in effect final or final disposition of an aspect of the trial proceeding
that is separate from the main litigation or collateral thereto.

Whatsoever, the right of civil appeal against any order passed by any court of law, is governed by
sections 104-106 and Order 43 of CPC, 1908. It has already been enunciated that the Code only recognize
 ~27~

appeal from such orders, which has made appealable under the provisions of the Code. From which orders
an appeal can be lied is propounded in section 104 and Order 43 of CPC, 1908. If we real the section with
Order 43, it will be revealed that an appeal can be lied from the following orders,

An order awarding compensatory costs in respect of false or vexatious claims or defense under
80
section 35A, CPC, 1908. Whatsoever, such appeal is limited to two grounds, namely,
no such order could have been made; or
81
an order for less amount ought to have been made.
An order awarding compensation for obtaining arrest, attachment or injunction on insufficient
82
grounds under section 95, CPC, 1908.
An order under any of the provisions of the CPC, 1908, imposing a fine or directing the arrest or
detention in the civil prison of any person except w here such arrest or detention is in execution of
83
a decree.
An order under rule 10 of Order VII returning a plaint to be presented to the proper
84 85
Court. An order under rule 10 of Order VIII pronouncing judgment against a party.
An order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order
to set aside the dismissal of a suit.86
an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order
87
to set aside a decree passed ex parte.
An order under rule 4 of Order X pronouncing judgment against a
party.88 An order under rule 21 of Order XI.89
90
An order under rule 10 of Order XVI for the attachment of property.
An order under rule 20 of Order XVI pronouncing judgment against a party. 91
An order under rule 34 of Order XXI on an objection to the draft of a document or of an
endorsement.92
93
An order under rule 60 of Order XXI releasing a property from attachment. An
order under rule 61 of Order XXI disallowing a claim to property attached.94
An order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale. 95 An
order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit. 96

80 Sec. 104(1)(ff), CPC, 1908

81 Proviso to S. 104, ibid
82 Sec. 104(1)(g), ibid
83 Sec. 104(1)(h), ibid
84 Or. 43(a), ibid
85 Or. 43(b), ibid
86 Or. 43(c), ibid
87 Or. 43(d). ibid
88 Or. (43)(e), ibid
89 Or. (43)(f), ibid
90 Or. (43)(g), ibid
91 Or. (43)(h), ibid
92 Or. (43)(i), ibid
93 Or. (43)(ii), ibid
94 Or. (43)(iii), ibid
95 Or. (43)(j), ibid
96 Or. (43)(k), ibid
 ~28~

An order under rule 10 of Order XXII giving or refusing to give leave. 97

An order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise
98
or satisfaction.
An order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an
order to set aside the dismissal of a suit.99
An order under rule 2, rule 4 or rule 7 of Order XXXIV refusing to extend the time for the
100
payment of mortgage-money.
Orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order
XXXV.101 An order under rule 2, rule 3 or rule 6 of Order XXXVIII. 102
An order under rule 1, rule 2, rule 4 or rule 10 of Order
103 104
XXXIX. An order under rule 1 or rule 4 of Order XL.
An order of refusal under rule 19 of Order XLI to readmit, or under rule 21 of Order XLI to re-
hear, an appeal.105
An order under rule 23 of Order XLI remanding a case, where an appeal would lie from the
106
decree of the Appellate Court.
An order made by any Court other than the High Court Division refusing the grant of a certificate
107
under rule 6 of Order XLV.
An order under rule 4 of Order XLVII granting an application for review. 108
The above mentioned are the orders from which appeal may lie. Whatsoever, sub-section (2) of section
104, CPC, 1908, enunciated that, no appeal shall lie from an order passed in any appeal under the
provisions of section 104.

Appeal from Other Orders:

Section 105, CPC, 1908, enacts that every order whether appealable or not, except an order of
remand, can be attacked in an appeal from the final decree on the grounds,

that there is an,

error;
defect; or
irregularity in the
order; that such,
error;
defect; or

97 Or. (43)(l), CPC, 1908

98 Or. (43)(m), ibid
99 Or. (43)(n), ibid
100 Or. (43)(o), ibid
101 Or. (43)(p), ibid
102 Or. (43)(q), ibid
103 Or. (43)(r), ibid
104 Or. (43)(s), ibid
105 Or. (43)(t), ibid
106 Or. (43)(u), ibid
107 Or. (43)(v), ibid
108 Or. (43)(w), ibid
 ~29~

irregularity affects the decision of the case.

The principle underlying section 105 is that when an interlocutory order is appealable, the party
against whom such order is made is not bound to prefer an appeal against it. There is no such law which
compels a party to from every interlocutory order by which he may feel aggrieved. Section 105 makes it
clear that an order appealable under section 104 may be questioned under this section in an appeal from
the decree in the suit, even though no appeal has been preferred against the interlocutory order.

By Which Court the Appeal to be Heard?

Section 106, CPC, 1908, has propounded, by which court the appeal from an order shall be heard.
According to the section, appeal from an appealable order passed in the suit shall lie to the court to which
an appeal lie from the decree passed in the suit.

The section also provides that, where the order passed by a court not being the High Court Division on
the course of exercising its power as an Appellate Court, an appeal from such order will lie to the HCD.
nd
But as the provision as to 2 appeal is now omitted, this part of the section is obsolete.

Procedure of Hearing Appeal from Order:

It is enunciated in rule 2 of Order 43, CPC, 1908, that, the procedures under Order 41, CPC, 1908, as
regard to appeal from original decree, is also applicable in case of appeal from order.

Limitation:
Article 116 of the Limitation Act, 1963, also provides time limitation for filing an appeal from an
order. According to the Article, an appeal from an order is be filed within,

90 days from the date of passing the order to be appealed against, to the High Court Division; and
30 days from the date of passing the order to be appealed against, to any other court other than the
High Court Division.
 ~30~

Appeal to the Appellate Division

Sections 109 to 112 of CPC, 1908, provide for appeals to the Appellate Division of the Supreme
Court in certain circumstances. Generally appeal to the Appellate Division is governed by the Constitution
of People Republic of Bangladesh. Article 103 of the Constitution gives the Appellate Division to decide
an appeal. Whatsoever, sections 109-112 and Order 45, CPC, 1908, deal with appeal to the Appellate
Division.

Conditions for Appeal to the Appellate Division:

An appeal would lie to the Appellate Division under section 109 of Code of Civil Procedure, 1908,
only if the following conditions are fulfilled,

any Judgment, decree or final order passed on appeal by the High Court Division or by any other
Court of final appellate jurisdiction;
any Judgment, decree or final order passed by the High Court Division in the exercise of original
civil jurisdiction;
any Judgment, decree or final order, when the case is certified to be a fit one for appeal to the
Appellate Division.

The provision of section 109, CPC, 1908, must be read subject to the provisions of Art. 103 of the
Constitution and no right of appeal can be claimed in terms of s. 109, CPC, 1908, contrary to the
provisions of art. 103. The position has been made clear by sec. 112, CPC, 1908.

The Appellate Division is not bound by the limitations prescribed in CPC, 1908 and it has its own
ruled.

Valuation of Subject-Matter:
Section 110, CPC, 1908, has enacted a certain amount of subject matter for appeal to the Appellate
Division. According to the section, an appeal mentioned under clauses (a) and (b) of section 109, can be
made to the Appellate Division only if the value of the subject matter of the suit in the Court of first
instance was of twenty thousand taka or upwards and it is still the same in the Appellate Division. Or the
judgment, decree or final order must involve directly or indirectly, some claim or question to or respecting
property of twenty thousand take or upwards. Where the judgment, decree or final order appealed from
affirms the decision of the court immediately below the court passing such judgment, decree or final
order, the appeal must involve some substantial question of law.
 ~31~

Pauper Appeal
Generally the term “pauper” means a person who is very poor. Our Code of Civil Procedure, 1908 has
given the pauper person to institute a suit or to file an appeal, and the Code has made certain provisions as
regard to suit and appeal by pauper. But as our topic to discuss is appeal we will discuss about pauper
appeal. Before entering to our main topic let us gather some ideas about the term “pauper”.

Pauper:
The general meaning of pauper is a very poor person. According to Black’s Law Dictionary pauper
means, “a person so poor that he must be supported at public expense; also a suitor who, on account of
poverty, is allowed to sue or defend without being chargeable with costs.” 109
Definition of pauper is given in explanation of rule 1 of Order 33, CPC, 1908. According to the
explanation “a person is a ‘pauper,

if he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the
plaint in such suit; or
where no such fee is prescribed, when he is not entitled to property worth one thousand taka.”

About the provisions as regard to pauper appeal is discussed in Order 44, CPC, 1908. These
provisions are discussed as under.

Who may Appeal as Pauper:

Rule 1 of Order 44, CPC, 1908, states about who can file an appeal as a pauper. According to the rule,
subject to the conditions in suit by paupers under Order 33, CPC, 1908, 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 a pauper.

Procedure on Application for Admission of Appeal:

The rule as to the admission of such appeal is propounded in the proviso of rule 1 of Order 44, CPC,
1908. Under the rule of the proviso, the court will not accept such application unless upon a perusal
thereof and of the judgment and the decree appeal from the court sees that,

the decree is contrary to law; or

the decree is contrary to some usage having the force of law;
or the decree is otherwise erroneous or unjust.

If only any of the above mentioned grounds are fulfilled, only then the Appellate Court will accept such
application, otherwise not.

109 4th Ed. P. 1284; also In re Hoffen's Estate, 70 Wis. 522, 36 N.W. 407
 ~32~

Inquiry into Pauperism:

The procedure as to the inquiry as to the pauperism of the appellant is propounded in rule 2 of Order
44, CPC, 1908. According to the rule, the inquiry as to pauperism may be made by either,

the Appellate Court; or

the Court passing the decree on the order of the Appellate Court.

It also enunciated that, if the court by whom the original decree was passed had allowed such appellant to
sue as pauper, no such further inquiry is necessary. But if the Appellate Court sees any reason to do such
further inquiry, then the Appellate Court may order such inquiry.
 ~33~

Power of the Appellate Court

As the Code ensures the right of civil appeal the Code also delegates some power as regard to such
right to the Appellate Court. The power of Appellate Court as regard to disposing of an appeal is given to
the Appellate Court under section 107, and Order 41, CPC, 1908. The power as regarding to the disposing
of appeal is discussed as under.

Powers of the Appellate Court:

Powers of Appellate Court is conferred under section 107 of the Code of Civil Procedure, 1908.
Under the section, the Appellate Court has the following power as regard to disposing of an appeal,

to determine a case
finally; to remand a case;
to frame issues and refer them for trial; and
to take additional evidence or require such evidence to be taken.

In addition to the above powers, 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 such instituted therein. Whatsoever, these power of Appellate Division is
discussed in brief as following.

To Determine the Case Finally:

Section 107(1) (a) and rule 24 of Order 41, CPC, 1908, enable the appellate court to dispose of a case
finally. Where the evidence on record is sufficient to enable the court to pronounce judgment, it may
finally determine the case notwithstanding that the judgment of the trail court has proceeded wholly upon
some ground other than that on which the appellate court proceeds.

The Appellate Court normally shall make every endeavor to decide the case finally on merit taking
into consideration the evidence on record, reasons given by the trial court, grounds taken in the appeal and
the legal position. Under clause (a) of sec. 107(1), CPC, 1908, the Appellate Court is empowered to
consider all questions of law and fact and decide the case finally 110 but it cannot make out a third case
beyond the pleadings of the parties. However, it can decide a question of law even though it was not
raised in the trial court.

Remanding a Case:
‘Remand’ means to send back. The circumstance under which an appeal may be remanded are
contained in rule 23 of Order 41. The rule enacts that when a suit is disposed of upon a ‘preliminary
point’, the Appellate Court while reversing the decree may remand the suit and may also direct what issue
or issues shall be tried in the suit remanded. If the disposal of the suit by the trial court is on a preliminary
point, only then remand can be ordered.

110 54 DLR 310

 ~34~

Y Preliminary Point:
A ‘preliminary point’ is a point, the decision on which is sufficient to dispose of the whole suit
without the necessity of giving decision on other points or issues. A suit is considered to be disposed
of on a preliminary point if the same is disposed of on the ground that,
the suit is barred by res-judicata or any other provision of any law such as an exclusion clause
on a special law;
the suit is barred under the principles of acquiescence, waiver and
estoppel; the plaint did not disclose any cause of action;
the suit was brought in the name of a wrong person as plaintiff or defendant.

But if such preliminary point is decided on the basis of the evidence and on merit, a suit cannot be
remanded under rule 23 of Order 41, CPC, 1908.

Y Consideration as to Remand:
Remand under rule 23 of Order 41, CPC, 1908, can only be made if the following circumstances
are present,
that the suit was disposed of on a preliminary point; and
that the decree of the trial court has been reversed by the Appellate Court.

There is no scope of remanding a suit if the evidence in record is sufficient for the Appellate Court to
finally decide the questions raised in the appeal. 111

Power to Frame Issue & Refer them for Trial:

Under rules 25 and 26 of Order 41, CPC, 1908, the Appellate Court has power to frame issue and
refer then for trial. According to rule 25, where the lower court has omitted,

to frame any issue;

or to try any issue; or
to determine any question of fact;

which is essential to the right decision of the suit upon merits, the Appellate Court may frame issues and
refer them for trial to the lower court and shall direct that court to take the additional evidence required.
The lower court shall try such issues and shall return the evidence and the findings within the time fixed
by the Appellate Court.

According to rule 26, such evidence and findings shall form part of the record in the suit; and either
party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any
finding.

111 7 BLT (AD) 143

 ~35~

Taking of Additional Evidence:

The circumstances under which an Appellate Court may take additional evidence or may require such
evidence to be taken is laid down in rule 27 of Order 41, CPC, 1908. The rule provides that only under the
following circumstances, parties to an appeal may produce or the appellate court may allow such evidence
to be produced,

when the court, form whose decree the appeal is preferred, has refused to admit an evidence
which ought to have been admitted; or
when the Appellate Court itself requires any document to be produced or any witness to be
produced or any witness to be examined to enable it to pronounce judgment, or for any other
substantial cause.

If a party files any application for taking additional evidence, the appellate court is required to consider,

whether the party had an opportunity to produce such evidence in the trial
court; whether there is any relevant averment in the pleadings of the parties;
whether the trial court, without any valid reasons, refused to admit that evidence.

While considering such an application, the other party in the appeal should be given an opportunity to contest
112
the prayer and after hearing both parties, the appellate court may allow the prayer or may reject it. If it
allows the prayer, the court shall record the record the reasons for admitting additional evidence.

112 8 BLD 337

 ~36~

Distinction as to Civil & Criminal Appeal

Though both the civil appeal and criminal appeal are stand on the same principle, both has some
distinctions as regard to each other. Distinctions between civil appeal and criminal appeal is stated as
following:

Civil Appeal Subject Matter Criminal Appeal

The Code of Civil Procedure,
1908, has enunciated the right of
civil appeal.
A civil appeal lies only in case
of a suit of civil nature under
section 9 of CPC, 1908.
Sections 96 to 112 & order 41 to
45 of CPC, 1908, has
enunciated the provisions as to
civil appeal.
Under the Limitation Act 1963,
limitation of time to civil appeal
is 90 days to the HCD & 30
days to other court.
Article 116 of the Limitation
Act, 1963, has enunciated the
time limitation for civil appeal.
No time limitation for the
disposal of a civil appeal is
prescribed in case of civil
appeal.
There is no provision of second
appeal in case of civil appeal.
As to the Code ensuring the
right
As to subject matter
As to the sections & orders
prescribing the provisions
As to limitation
As to the Article of Limitation
Act enunciating the limitation
As to the time limitation for
disposal
As to 2nd appeal
The Code of Criminal
Procedure, 1898, has enunciated
the right of criminal appeal
A criminal appeal lies only on
suits which are of criminal in
nature.
Sections 404 to 431 of CrPC,
1898 has, enunciated the
provisions as to criminal appeal.
Under the Limitation Act, 1963,
appeal against death sentence is
7 days and 30 days in all other
cases.
Articles 150 & 154 of the
Limitation Act, 1963, has
enunciated the time limitation
for criminal appeal.
The time limitation for the
disposal for the criminal appeal
is 90 days from the day of
service.
There is provision of second
appeal in two cases, which are
u/s 417 & 417A.
 ~37~

Part 02: Review

 ~38~

Part 02: Review

Origin & Basic Concept of the Term “Review”
A general rule of law is that, once a judgment is signed and pronounced by the court it becomes
functus officio, which means that, once a judgment is signed and pronounced by the court it ceases to have
control over the matter and the court has no jurisdiction to alter the judgment. But an exception to this rule
is the system of review in law. This exception has taken its place in law because of the common nature of
human being to make mistake.

Origin of the Term “Review”:

The term “review” has been derived from the Middle French word ‘reveue’ in 15c., which means an
“inspection of military forces. The term ‘reveue’ is iterative of another French word ‘reveeir’ which
means “to see again”. The word ‘reveue’ has been derived from the Latin word ‘revidera’ meaning “to
see again”. The word ‘revidera’ is the joint form of ‘re’ meaning “again” and ‘videre’ meaning “to see”.

From 1560s the word ‘reveue’ transformed into “review” and started to be used as the sense of
“process of going over again”. In 1570s the term “review” was adopted to English language and started to
be used as the meaning of “examine again” or “look back again”.

Diagram: 03
 ~39~

Definition of “Review”:
Generally the term “review” means “look at again” “examine again” or “reconsider”. According to
Cambridge Advanced learner’s Dictionary ‘review’ means, “to consider something in order to make
changes to it”. In legal parlance the term “review” means a judicial re-examination of the case by the
same court and by the same judge. 113 Whatsoever, the term “review” has not been defined by any of our
statute, e.g. Code of Civil Procedure, 1908, Code of Criminal Procedure, 1898 etc. so, we have to depend
on the definition given by the legal experts.

According to Black’s Law Dictionary ‘review’ means, “to re-examination judicially or a

114
reconsideration, second view or examination or consideration for purposes of correction.”
In Bouvier’s Law Dictionary the term ‘review’ has been defined as, “a second examination of a
115
matter in a suit”
According to Alexander M. Burrill, ‘review’ means, “to revise the sentence of the court, when it was
apprehended they had been led into a material error” 116
According to Walter A. Shumaker ‘review’ means, “a second examination of a matter, ordinarily applied
117
to a re-examination of a judicial or official determination.”
According to William C. Cochran, ‘review’ means, “a second examination of a matter or hearing of a
suit.”118
So, if we consider the above mentioned definition it can be said that, review in parlance of law can be
said to be a judicial re-examination of the decision of the Court by itself.

113113
Maharajah Moheshur Singh vs. Bengal Govt., (1857-60) 7 Moo IA 283
114 4th Ed.
115 Ed. 8th, vol. 3, p. 2954
116 A Law Dictionary & Glossary, ed. 2nd, vol. 2, p. 421
117 The Cyclopedic Dictionary of Law, p. 807
118 The Student’s Law Lexicon, p. 238
 ~40~

Review under the Code of Civil Procedure, 1908

Review means a judicial re-examination of a case in certain specified and prescribed circumstances.
Review is possible almost in every judicial organs. The provisions as to review has been made in the Code
of Civil Procedure, 1908.

Right of Review under the CPC, 1908:

The right of review has been conferred by the CPC, 1908 under section 114, CPC, 1908, and the
procedures as regard to review is propounded in Order 47 of CPC, 1908.

The normal principle of law is that once a judgment is pronounced or order is made, the court
119
becomes functus officio. Such judgment or order is final and it cannot be altered or changed. But
section 114 and 152 is an exception to such principle.

Object:
The remedy of review, which is a reconsideration of the judgment by the same court and by the same
judge, has been borrowed from the courts of equity. The concept was not known to common law. The
remedy has a remarkable resemblance to a writ of error. 120
The basic philosophy inherent in the recognition of the doctrine of review is acceptance of human
fallibility. If there is an error due to human failing, it cannot be permitted to perpetuate and to defeat
121
justice. Such errors or mistakes must be corrected to prevent miscarriage of justice.
So, it can be said that, the main object of review is to remove an error or mistake and not to disturb
finality.122

Who may Apply?

Section 114 of CPC, 1908 has stated about who can apply for review. According to the section, a
person aggrieved by a decree or order may apply for review of a judgment. 123
The term a “person aggrieved” means a person who has suffered a legal grievance or against whom a
decision has been pronounced which has wrongfully deprived him of something or wrongfully refused
him something or wrongfully affected his title to something. 124 Generally speaking, a person aggrieved
has been understood to mean one who has a genuine grievance because an order has been made which
125
prejudicially affects his interests. But the concept of ‘person aggrieved’ various according to the

119 Rule 3 of Order 20, CPC, 1908

120 Sow Chndra Kante vs. Sk. Habib, (1975) 1 SCC 674
121 Ibid
122 Ibid
123 See also rule 1 of Order 47, CPC, 1908
124 Sidebotham, Re, ex p Sidebotham, (1880) 14 Ch D 458
125 Attorney General of the Gambia vs. N’jie, 1961 AC 617
 ~41~

context, purpose and provisions of the statute. 126 However leniently one may construe the expression
‘party aggrieved’, a person affected directly and immediately but any person not affected directly and
immediately cannot be so considered.

A person who is neither a party to the proceedings nor a decree or order binds him, cannot apply for
127
review as the decree or order does not adversely or prejudicially affect him.
But if third party is affected or prejudiced by a judgment or order, he can seek review of such
order.128 Again, a person who is a necessary party to the suit and yet not joined and the order passed in
such suit affects him, may seek review thereof. 129

By whom Review may be Made?

Section 114 and rule 2 of Order 47, CPC, 1908, have stated by whom a review may be made.
According to section 114, an application for review shall be made to the court which passed the decree or
made the order.

On the other hand, rule 2 of Order 47, states that, shall be lied to any court passing the original decree
or made the order, not being the High Court Division and the same judge who had heard the case. But if
the judge order notice to issue under rule 4(2) (a) of Order 47, CPC, 1908, the review can be disposed by
the successor of the Judge.

When Review Lies?

Section 114 and rule 1 of Order 47, CPC, 1908, have propounded when an application of review can
be made. Under the provisions of the section and rule, a review petition is maintainable in the following
cases,

a decree or order from which no appeal is allowed by the CPC, 1908 [Sec. 114(b) & Ru. 1(b), Or.
47, CPC, 1908]
a decree or order from which an appeal is allowed by the CPC, 1908, but from which no appeal
has been preferred [Sec. 114(a) & Ru. 1(a), Or. 47, CPC, 1908]
a decision on a reference from a Court of Small Causes [Sec. 114(c) & Ru. 1(c), Or. 47, CPC,
1908]

The above mentioned are discussed in brief as under.

126 Bar Council of Maharashtra vs. M. V. Dabholkar, (1975) 2 SCC 702

127 Bharat Singh vs. Firm Sheo Pershad Giani Ram, AIR 1978 Del 122
128 Shivdeo Singh vs. State of Punjab, AIR 1963 SC 1909
129 Savithramma vs. H. Gurappa Reddy, AIR 1996 Kant 99
 ~42~

Y Cases in which No Appeal Lies:

A decree or order from which no appeal lies is open lies is open to review. 130 An application for
131
review against a decree passed by a Court of Small Causes is Competent.
Where an appeal is dismissed on the ground that it was incompetent or was time barred, the
provisions of review would get attracted.132

Y Cases in which Appeal Lies but Not Preferred:

A review petition is also maintainable in cases where appeal is provided but no such appeal is
133
preferred by the aggrieved party. The fact that an order is subject to appeal is no ground to reject an
application for review.134 An application for review can be presented so long as no appeal is preferred
135
against the order.
When, however, an appeal is already instituted before making an application for review, the court
136
cannot entertain such application. Where an appeal is preferred and is disposed of, no review
137
would lie against the decision of the lower court. But if an application for review is preferred first
and then an appeal is filed, the jurisdiction of the court to deal with and decide the review petition is
not affected. If review is granted before disposal of the appeal, the decree or order ceases to exist and
138
the appeal will not remain. Conversely, if appeal is decided on merits before an application of
139
review is heard, such petition becomes infructuous and is liable to be dismissed.

Y Decision on Reference from Court of Small Causes:

The Code of Civil Procedure, 1908 allows a review of a judgment on a reference from a Court of
Small Causes under section 114 and rule 1 of Order 47.

Grounds:
The grounds on which an application for review may be made are propounded in rule 1 of Order 47,
CPC, 1908. Under the rule an application for review of a judgment may be made on any of the following
grounds,

discovery of new and important matter or evidence;

or mistake or error apparent on the face of the record;
or any other sufficient reason.

130 Sec. 114 (b) & Ru. 1(b), Or. 47, CPC, 1908
131 Sec. 114 (c) & Ru. 1(c), ibid
132 Ram Baksh vs. Rajeshwari Kunwar, AIR 1948 All 213
133 Sec. 114 (a) & Ru. 1(a). Or. 47, CPC, 1908
134 Mohd. Bakhsh vs. Pirthi Chand, AIR 1933 Lah 226
135 Sitaramasastry vs. Sunderamma, AIR 1966 AP 173
136 Gopabandhu Biswal vs.Krishna Chandra, (1998) 4 SCC 447
137 Mallikarjun Sadashiv vs. Suratram Shivlal, AIR 1971 Bom 45
138 Ram Baksh vs. Rajeshwari Kunwar, AIR 1948 All 213
139 Gour Krishna Sarkar vs. Nilmadhab Shah, AIR 1923 Cal 113
 ~43~

The above mentioned grounds are discuss in brief as under.

Y Discovery of New Evidence:

A review is permissible on the ground of discovery by the applicant of some new and important
matter or evidence which, after exercise of due diligence,
was not within his knowledge; or
could not be produced by him at the time when the decree was passed.

Y Error Apparent on the Face of Record:

Another ground for review is a mistake or an error apparent on the face of the record. What is an
error apparent on the face of the record cannot be defined precisely or exhaustively, and it should be
determined judicially on the facts of each case. 140 Such error may be one of fact or of law. 141
However, no error can be said to be an error apparent on the face of the record if it is not self-evident
142
and requires an examination on argument to establish it.

Y Other Sufficient Reason:

The last ground for review is ‘any other sufficient reason’. The expression “any other sufficient
reason” has not been defined in the Code. However, relying on the judgment of the Privy Council and
the Federal Court, the Supreme Court has held that the words “any other sufficient reason” must mean
“a reason sufficient on grounds, at least analogous to those specified in the rule.” The following have
been held to be sufficient reasons for granting review,
143
where the statement in the judgment is not correct;
where the decree or order has been passed under a misapprehension of the true state of
144
circumstances;
where a party had no notice or fair opportunity to produce his evidence; 145
146
where the court had failed to consider a material issue, fact or evidence;
147
where the court has omitted to notice or consider material statutory provisions”
a ground which goes to the root of the matter and affects inherent jurisdiction of the
148 149
court; misconception by the court of a concession made by the advocate;
where a party’s evidence has been closed owing to a misconception on the part of his
150
pleader;

140 Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233
141 Karutha Kritys vs. R. Ramalinga Raju, AIR 1960 AP 17
142 Thungabhadra Industries, AIR 1964 SC 1372
143 Bank of Bihar vs. Mahabir Lal, AIR 1964 SC 377
144 Moran Mar Basselios Catholicos vs. Mar Poulose Athanasius, AIR 1954 SC 526
145 Rajkishore Das vs. Nilamani Das, AIR 1968 Ori 140
146 Burma Shell Oil Storage Distributing Co. of India vs. Labor Appellate Tribunal, AIR 1955 Cal 92
147 Girdhari Lal vs. D. H. Mehta, (1971) 3 SCC 189
148 Ayesha Bai vs. Duleep Singh, AIR 1961 Raj 186
149 Moran Mar Basselios Catholicos vs. Mar Poulose Athanasius, AIR 1954 SC 526
150 Pridhanmal vs. Laloo, AIR 1931 Sind 3(4)
 ~44~

a manifest wrong has been done and it is necessary to pass an order to do full and effective
justice.151

Form of Application of Review:

Rule 3 of Order 47, CPC, 1908 has prescribed the form of an application of review. According to the
rule, the provisions as to the form of preferring appeals shall apply, mutatis mutandis, to applications for
review.

Rejection of the Application:

Rule 4(1) and 6 of Order 47, CPC, 1908, has propounded the ground when the application of review
will be rejected. According to the rules, on the following grounds the application of review will be
rejected,

where it appears to the court that there is not sufficient ground for a review, the court shall reject
the application; or
where the application for a review is heard by more than one judge and the court is equally
divided, the application shall be rejected; and
152
where the applicant fails to appear when the application was called for hearing.
It is prescribed in rule 7(2) of Order 47, CPC, 1908, that, when an application is reject for the non-
appearance of the applicant, the applicant may apply for an order to have the rejected application restored
to the file. If he can satisfy the court that there was sufficient reason for his non-appearance, on the day of
the hearing of the application the court will order the application to be restored to the file upon such terms
as to costs or otherwise as the court thinks fit and will appoint a day for hearing the same. A notice must
be sent to the opposite party on that behalf.

Granting of the Application:

It is stated in rule 4(2) (a), Or. 47 of CPC, 1908 that the application of review will not be granted
unless the applicant does not serve a notice to the opposite party.

Decision on Majority:
Where such application is heard by two or more judges, and there are majority of opinion, the
decision shall be according to the opinion of the majority.

151 O. N. Mohindroo vs. District Judge, (1971) 3 SCC 5

152 Ru. 7(2), Or. 47, CPC, 1908
 ~45~

Appeal:
153
An order of rejecting the application of review is not appealable. But an order granting the
154
application of review is appealable. The opposite party can also filed an objection on the following
ground,

it was in contravention of the provisions of rule 2, Or. 47, CPC, 1908; it

was in contravention of the provisions of rule 4, Or. 47, CPC, 1908; or
it was presented after the expiration of the period of limitation prescribed by law and without
sufficient cause.155

Limitation:
As it has been stated before every remedy given by the statute has its limitation of time. The statute
has also prescribed a time limitation for making an application for review. Such limitation is not
prescribed in the Code of Civil Procedure, 1908, but to the Limitation Act, 1963. Under Art. 124, of the
Act, the limitation for presenting an application of review is,

thirty days in any court other than the Supreme Court.

Appeal vs. Review:

Both appeal and review are remedy made by the statute for the fallibility nature of human being. Both
the procedure are procedure of removing error or mistake. Thus, in this sense appeal and review has
similarity. But the two remedy has certain dissimilarity too. The distinctions as regard to appeal and
review are as following:

Appeal Subject Matter Review

Appeal means the right of
carrying a particular case from
an inferior to a superior court
with a view to ascertaining
whether the judgment is
sustainable.
Sections 96 to 112 of CPC,
1908, has enunciated about
appeal.
Order 41 to 45 of CPC, 1908,
has enunciated about appeal.
Under the CPC, 1908, there can
be appeal from order, decree or
there can be pauper appeal etc.
Appeal lies to the superior court
As to definition Review means a judicial re-
examination of a case in certain
specified and prescribed
circumstances.
As to the section under CPC, Section 114 of CPC, 1908, has
1908 enunciated about review.
As to the order under CPC, Order 47 of CPC, 1908, has
1908 enunciated about review.
As to classification There is no such classification in
case of review.
As to the Court Review lies to the same court.

153 Ru. 7(1), Or. 47, CPC, 1908

154 Ru. 1(w), Or. 43, CPC, 1908
155 Ru. 7(1), Or. 47, CPC, 1908

Appeal heard by the different
judge.
The grounds for appeal are
wider than review.
Under the Limitation Act, 1963,
time limitation for appeal is 90
days to HCD & 30 days in other
courts.
Article 116 of the Limitation
Act, 1963, has enunciated the
time limitation for appeal.
~46~
As to the judge hearing Review as the matter of
reconsideration of same subject
matter heard by the same judge.
As to ground The grounds for review are not
as wide as appeal.
As to Limitation Under the Limitation Act, 1963,
time limitation for review is 30
days.
As to Article enunciating the Article 124 of the Limitation
time limitation Act, 1963, has enunciated the
time limitation for appeal.
 ~47~

Part 03: Revision

 ~48~

Part 03: Revision

Origin & Basic Concept of the Term “Revision”
Just like appeal and review, revision has come to law for the same purpose, which is to correct any
error or mistake. Revisional power of the High Court is a power to rectify any mistake or error of law of
the judgment given by the lower court.

Origin of the Term “Revision”:

The term “review” has been derived from the French word “révision” in 1610s, which means “an act
of revising”. The word “révision” has been derived from the Latin word “revisio” meaning “to see again”.
The word “revisio” is the iterative of another Late Latin word “revisionem” which means “seeing again”.
The word “revisionem” has derived from another Latin word “revidere” meaning “see again”.

Diagram: 04

Definition of Revision:
Generally the term “revision” means the act of revising or altering, or the act of rewriting something.
According to the dictionary meaning “to revise” means “to look again” or “look repeatedly at”; “to go
through carefully and correct where necessary”; “to look over with a view to improving or correcting”.

According to the Oxford English Dictionary, the term “revision” means, “the action of revising,
especially critical or careful examination or perusal with a view to correcting or improving”.
 ~49~

No definition of the term “revision” has been given by any of the statute, e.g. The General Clauses
Act, The Code of Civil Procedure etc., so, we have to depend on the definition given by the legal experts
and decision held on the legal proceedings.

It was held in the State Road Commission of West Virginia v. West Virginia Bridge Commission,
156
that “revision” means, “a re-examination or careful reading over for correction or improvement”
Revision is a purely discretionary remedy granted by a higher court with a view to correcting
miscarriage of justice.

156 112 W.Va. 514, 166 S.E. 11, 13

 ~50~

Revision under the Code of Civil Procedure, 1908

The code of Civil Procedure, 1908, has conferred the power of revision to the HCD for the purpose of
correcting miscarriage of justice. Section 115 of CPC, 1908 has empowered the High Court Division to
entertain a revision in any case decided by any subordinate court in certain circumstances. This
jurisdiction is known as Revisional jurisdiction. This section gave power to the High Court to keep the
subordinate courts within the bounds of their jurisdiction. This section was earlier amended twice, once in
1978 and next in 1983. But major changes have been made by the amendment made in 2003 when the
original section was substituted.

Before 1978, this power was not available to the CPC, 1908. After the amendment of 1978 the
provision of revision was made available against any error of law apparent on the face of the record in
respect of both appellate decrees and non-appealable decrees and orders.

By the amendment of 1978 and 1983 section 115 of CPC, 1908, became a substitute for second
appeal and a revision would lie against a decree on the grounds on which previously second appeal was
157
maintainable.
The amendment of 2003 has again conferred Revisional power on the District Judges against orders
not only of the Assistant Judges, but also of the Joint District Judges. This amendment has provided for
second revision in the HCD against an order passed by the District Judge and Additional District Judge in
revision, where the HCD grants leave.

The Revisional power of the HCD is also called supervisory power or power to do complete justice or
power to call for record.

Revisional Power under Section 115:

Under the Revisional power granted by section 115, CPC, 1908, may exercise its Revisional
jurisdiction. Section 115(1), conferred Revisional jurisdiction to the HCD. Under the section the HCD
may grant an application for revision made by any aggrieved party to a suit, if such party is aggrieved by,

any decree or order passed by a Court of District Judge or Additional District Judge (in such case
the condition of being appealable order or decree is not imposed); or
any decree passed by a Court Joint District Judge, Senior Assistant Judge or Assistant Judge, not
being appealable;

and can call for record of the suit or proceeding. But to do such it must be satisfied that such subordinate
court has committed,

any error of law resulting in an error in such decree or order occasioning failure of justice.

If the above mentioned conditions are fulfilled the HCD may revise such decree or order and make such
order as it thinks fit.

157 Bangladesh vs. Md. Aslam, 44 DLR 69

 ~51~

Section 115(2), CPC, 1908, has conferred Revisional power to the District Judge. Under the section,
the District Judge, if an aggrieved party to a suit make an application for revision against any order which
are not appealable passed by any,

Joint District Judge; or

Senior Assistant Judge;
or Assistant Judge;

may call for the record of the suit or proceeding. But in such case the court has to be satisfied that, such
subordinate court has committed any,

error of law resulting in an error in such order.

And if the above mentioned conditions are fulfilled the District Judge may revise such order and make
such order as it thinks fit.

So, after we read the two part of the section, it is clear that in the first part [S. 115(1)], the aggrieved
party may apply against ant decree or order if it is passed by the District Judge or Additional District
Judge and such order need not be appealable, and in the next case under S. 115(1), only an order is
revisable if it is passed by the Joint District Judge or Senior Assistant Judge or Assistant Judge and such
order must be non-appealable.

In the second part [S. 115(2)], the aggrieved party may apply for revision to the District Judge, if only
any order (not decree) is passed by any Joint District Judge or Senior Assistant Judge or Assistant Judge
and such order must be non-appealable.

Object:
The underlying object of sec. 115, CPC, 1908, is to prevent subordinate courts from acting arbitrarily,
capriciously and illegally or irregularly in the exercise of their jurisdiction. It cloths the High Court with
the powers to see that the proceedings of the subordinate courts are conducted in accordance with law
158
within the bounds of their jurisdiction and in furtherance of justice.
It enable the High Court to correct, when necessary, errors of jurisdiction committed by subordinate
courts and provides the means to an aggrieved party to obtain rectification of a non-appealable order. In
other words, for the effective exercise of its superintending and visitorial jurisdiction is conferred upon
the High Court.159

Who may Exercise the Power?

The Revisional power under the CPC, 1908, has been conferred by section 115 of CPC, 1908. The
same section has enunciated who may exercise the power conferred under this section. The Revisional
power under the CPC, 1908, can be exercised by,

158 Major S. S. Khanna vs. Brig. F. J. Dillon, AIR 1964 SC 497

159 Ibid
 ~52~

the High Court Division;160

161
and the District Judge.

Who may File Application for Revision?

According to section 115(1) of CPC, 1908, any party aggrieved by an order or decree passed by a
court subordinate to the High Court may file a revision against such order or decree. On the other hand
according to section 115(2) of CPC, 1908, any party aggrieved by an order or decree of the court
subordinate to the District Judge, may file a revision against such order or decree. So, it is clear that any
aggrieved party to a suit can file a revision. A person who is not a party to a suit may file an appeal if he is
adversely affected by a decree but in case of revision a person who is not a party to the suit has no right to
file any Revisional application.162
Before the amendment of 2003, no party can apply for revision. But after the amendment of 2003,
under section 115, CPC, 1908, may file a revision to the HCD or District Judge.

Suo Motu Power of the HCD:

Before the amendment of 2003, the Revisional power was a suo motu power of the Court. The HCD
can exercise its Revisional power in its own discretion under the CPC, 1908. But after the amendment of
2003 the power can no more be exercised as a suo motu power of the court. Now to exercise the
Revisional power an application must be made by the party, otherwise this power cannot be exercised,
which makes the civil revision different from criminal revision, because in criminal Code the court can
exercise its Revisional power suo motu.

Discretionary Power of the Court:

The Revisional power of the Court is a purely discretionary power of the court. It cannot be claimed
as right. If we read the provision of sec. 115, CPC, 1908, it will be found that the language of the court
says that the HCD or District Judge “may” revise the decree or order not “shall”. Which means the court
is not bound to accept the application of revision made by the aggrieved party.

Not a Continuation of the Original Proceeding:

A revision is not a continuation of the original proceeding. It is distinct proceeding not the
163
continuation. A revision is not a continuation of the original proceeding like an appeal.

Conditions:
Before Revisional jurisdiction can be exercised certain conditions must be satisfied. The conditions
which are to be satisfied before the Revisional jurisdiction can be exercised are as following,

160 Sec. 115(1), CPC, 1908

161 Sec. 115(2), CPC, 1908
162 16 MLR (AD) 69
163 22 DLR (SC) 192
 ~53~

a case must have been decided;

the court which has decided the case must be a court subordinate to the HCD or District Judge;
the decree if it was passed by a court of Joint District Judge, Senior Assistant Judge or Assistant
Judge, should not be appealable;
the subordinate court must have,
exercised jurisdiction not vested in it by law; or
failed to exercise jurisdiction vested in it; or
164
acted in the exercise of its jurisdiction illegally or with material irregularity.

Question of Law:
Generally in a revision, the question of law is considered by the court. Normally questions of facts are
165
not considered by a court under its Revisional jurisdiction.

Form of Revision:
No particular form of revision is prescribed in the Code of Civil Procedure, 1908. Such petition,
however, must contain grounds as to error of jurisdiction covered by section 115 of the Code.

Death of Applicant:
The provision of Order 22 of CPC, 1908, which is about the abatement of suit or proceeding, does not
apply to revision application. A revision, therefore, does not abate on the death of the applicant or on
account of failure on the part of the applicant to bring on record of the heirs of the deceased opponent. 166
But in some rare circumstances a question of fact may be considered by the court too.

nd
2 Revision:
nd
Unlike civil appeal, there is provision of 2 revision in CPC, 1908. Section 115(3) grant the power or
nd
2 revision. But in such case an aggrieved party can make such application if only the order is passed by
the District Judge or Additional District Judge under sec. 115(2). And such application must be made to
the HCD if it grants leave for revision.

Limitation:
Just like appeal and review revision has certain time limitation made by the statute. And likewise
appeal and review the Code does not prescribe the time limitation for revision. But he Limitation Act does.
Under Article 131 of the Act, an application for revision must be made within 90 days from the decree or
order sought to be revised.

164 Chaube Jagdish Prasad vs. Gaga Prasad Chaturvedi, AIR 1959 SC 492
165 15 BLD 196
166 Nathooram vs. Karbansilal, AIR 1983 AP 278
 ~54~

Appeal vs. Revision:

Though appeal and revision both are for the correction of mistake or error of law made by any court
in any judgment, both has certain distinctions. Distinctions between the two is as following:

Appeal Subject Matter Revision

Appeal means the right of
carrying a particular case from
an inferior to a superior court
with a view to ascertaining
whether the judgment is
sustainable.
Appeal lies to a superior court,
which may not necessarily the
HCD.
In appeal both matter of law and
matter of fact are to be
considered.
Any person who is not a party to
the suit may by the leave of the
court apply for appeal if he is
affected by the decree.
Sections 96 to 113 of CPC,
1908, deal with appeal.
Orders 41 to 45 deal with
appeal.
nd
There is not provision as to 2
appeal in CPC, 1908.
Right of appeal substantive As to the discretionary power
right, so the power of appeal is
not a discretionary power of the
court.
Appeal is a continuation of
original proceeding.
An appeal abates if the legal
representative of a deceased
party are not brought on record
within the prescribed period.
Limitation for filing of appeal is
90 days in HCD, and 30 days in
other court.
Article 116 of the Limitation
Act, 1963, enunciated the
limitation for filing appeal.
As to definition
As to the Court Exercising the
power
As to matter to consider
As to person able to file the
application
As to section under CPC, 1908
As to Order under CPC, 1908
nd nd
2 appeal and 2 revision
As to continuation of
proceeding
As to abatement
As to limitation
As to the Article enunciating the
limitation
Revision is a purely
discretionary remedy granted by
a higher court with a view to
correcting miscarriage of
justice.
Only the HCD & the District
Judge can exercise the
Revisional power.
In case of revision only matter
of law is to be considered.
In case of revision any person
who is not a party to the suit
cannot apply for revision.
Section 115 of CPC, 1908, deal
with revision.
No such order deal with
revision.
Under sec. 115(3), CPC, 1908,
there is provision as to 2nd
revision.
Revision is purely discretionary
power of the court.
Revision is not a continuation of
original proceeding.
A reference does not abate in
such ground. In fact it does not
abate by the death of the
applicant.
Limitation for filing revision is
90 days.
Article 131 of the Limitation
Act, 1963, enunciated the
limitation for filing for revision.
 ~55~

Review vs. Revision:

Both review and revision are remedy for the correction of mistake or error of law. But though the
birth of the both was for somehow same types of reason, both has certain distinctions. The distinction
between the two is as following:

Review Subject Matter Revision

Review means a judicial As to definition Revision is a purely
reexamination of a case in discretionary remedy granted by
certain specified and prescribed a higher court with a view to
circumstances. correcting miscarriage of
justice.
Section 114 of CPC, 1908, deal As to section under CPC, 1908 Section 115 of CPC, 1908, deal
with review. with revision.
Order 47 of CPC, 1908 deal As to Order No such order deal with
with the procedure of review. revision.
The same court passing the As to court Only the HCD and the District
decree or order dispose of Judge can exercise the power of
review. revision.
Order granting review is As to appeal Order granting review is not
appealable. appealable.

The End
 ~56~

Book References
c The Code of Civil Procedure, 1908 [Act No. V of
th
1908], Bare Act c Takwani, C. K., Civil Procedure, 7 Edition
c Haque, Hmidul J., Trial of Civil Suits & Criminal Cases, 2 nd Edition

c Sayed, Md. Abu, The Code of Civil Procedure, 2nd Edition

c Islam, Mahmudul, The Law of Civil Procedure, Vol. 1, c

Halim, Md. Abdul, Textbook on Civil Procedure, 4th Edition

c Rabbani, Mohammad Golam J., Code of Civil Procedure [DLR]

c রহমান , গাজী শামছু র , দওয়ানী কায িবিধরভাষ

c Osborn, P. G., A Concise Law Dictionary

c Black, Henry Campbell, Black's Law Dictionary, 4th
Edition c Bouvier, John, Bouvier's Law Dictionary, 8th Edition

c Stimson, Frederic Jesup, Glossary of Technical

Terms, Phrases, & Maxims Of The Common Law
c Burrill, Alexander M., A Law Dictionary & Glossary, Vol. 2, 2nd

Edition c West, Leonard H., Mozley and Whiteley's Law Dictionary, 2nd
Edition c Shumaker, Walter A., The Cyclopedic Dictionary of Law
th
c Lely, J. M., Wharton's Law Lexicon, 9 Edition