LAW OF LIMITATION

What Is a Statute of Limitations?

A statute of limitations is a law that sets the maximum amount of time that parties involved
in a dispute have to initiate legal proceedings from the date of an alleged offense, whether
civil or criminal. However, the length of time the statute allows for a victim to bring legal
action against the suspected wrong-doer can vary from one jurisdiction to another and the
nature of the offense.

KEY TAKEAWAYS

 The statute of limitations is a law that sets the maximum amount of time that parties
in a dispute have to initiate legal proceedings.
 The length of time allowed under a statute of limitations varies depending upon the
severity of the offense as well as the jurisdiction it is being disputed.
 Cases involving severe crimes, like murder, typically have no maximum period.
 Under international law, crimes against humanity, war crimes, and genocide have no
statute of limitations.
 Statutes of limitations can also apply to consumer debt, which then becomes time-
barred debt after the statute of limitation has passed.
 Proponents of statutes of limitations believe they are needed because after time
important evidence may be lost and the memories of witnesses can grow foggy.

Under international law, crimes against humanity, war crimes, and genocide have no
statute of limitations, according to the Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes Against Humanity and Article 29 of the Rome
Statute of the International Criminal Court.

Law of Limitation in India

The word limitation itself says the meaning. The word limitation in its literal term means a
restriction or the rule or circumstances which are limited. The law of limitation has been
prescribed as the time limit which is given for different suits to the aggrieved person within
which they can approach the court for redress or justice.

It is necessary to have certain basic knowledge regarding the law of limitation though it is not
expected from every citizen to master various provisions which has been provided for
limitation in different suits matters.

The basic concept of limitation is relating to fixing or prescribing of the time period for barring
legal actions. According to Section 2 (j) of the Limitation Act, 1963, ‘period of limitation’
means the period of limitation prescribed for any suit, appeal or application by the Schedule,
and ‘prescribed period’ means the period of limitation computed in accordance with the
provisions of this Act.

The Law of Limitation signifies to prevent from the last date for different legal actions which
can take place against an aggrieved person and to advance the suit and seek remedy or
righteous before the court. Where a suit is initiated after the bar of limitation, it will be hit by
the law of limitation. The main and the fundamental aim of the law of limitation is to protect
the lengthy process of penalizing a person indirectly without doing any offence.

The law relating to Law of Limitation to India is the Limitation Act, 1859 and subsequently
Limitation Act, 1963 which was enacted on 5th of October, 1963 and which came into force
from 1st of January, 1964 for the purpose of consolidating and amending the legal principles
relating to limitation of suits and other legal proceedings.

According to the provisions provided under the act, it is the litigation which is initiated, the
Appeal which is entertained and the request which are made after the specified term which
shall be dismissed even though the limitation is not raised as a defence. It is a suit which is
initiated when the complaint is instituted to any of an appropriate officer in a normal case and
where the person is a pauper. In other circumstances a suit is initiated when the request for
leave to file a suit as a pauper is made and where the cases relating to the allegation which is
against the company that is being wound up by a court, where the applicant initially sent his
assertions to the official liquidator. Where the assertion is made in a form of set off or
counterclaim, it shall be deemed as a separate litigation and in the case of set off it shall also
be considered to have initiated on the date on which the preceding for set off is pleaded. It
can be said that in a case of additional claim a suit shall be instituted within the same date on
which the counterclaim has been made. With this a request by notice of motion is made in
the High Court when the application is provided to the appropriate officer of that particular
Court.

When a court is closed on the expiry date for filing any shoot to kill or application search suits
API law application may be initiated on the reopening day of the court. An appeal or
application shall be admitted by the court after the specified period if the litigant convinces to
the court why showing inadequate cause for the failure to prepare a pill application within the
specified period then the court can admit his appeal or application. It is the duty of a litigant
to give appropriate cause for his failure for the filling of a suit appeal or application. Beside all
this, it is the act which provides that where a person who is having an authority to file any
suit or to make any request for the execution of defence who is a minor or insane or an idiot
during the specified time of filing is to be considered. He may be initiated a to file a suit or
application which shall be filed within the same time after his disability has come to an end,
or at the time during which the specified term is to be considered she may initiate the legal
actions or applications within the same term after both in capacities of disabilities of his have
come to an end. Where else if the incapacity your disability continues of that person till his
death, when the act West the authorities of that person on the legal representatives to
initiate the legal actions or make any application after his death within the same period.

As provided under the Act, the legal disability shall not apply to any suits which are filed for
the right of pre-emption or the limitation period and which are to be extended for a period
and upon such conditions. While to do a calculation of the limitation period for any litigation,
appeal or application, the date from which such period is to be considered, shall be deem to
be exempted. A suit which are filed for review or revision or appeal of a judgment, the date
shall be calculated from the date on which the judgment is delivered and the time of request
for getting duplicate of the decree, or order appealed from or revised or reviewed shall be
exempted. The Act also provides for other computation of limitation for suits against trustee,
execution of a decree, effect of fraud or mistake. The Act states acquisition of easement by
prescription for the enjoyment of the use of land without interruption for twenty years.

The Limitation Act, 1963 does not affect the provisions provided under The Indian Contract
Act, 1872. The Act is made effective for the reason that it bars the jurisdiction of the court to
entertain the actions that are frivolous and to avoid the long proceeding of the pending
actions by the complainants.

The Salient Features are

 The Limitation Act contains 32 Sections and 137 Articles. The articles have been
divided into 10 parts. The first part is relating to accounts, the second part is
relating to contracts, the third part is relating to declaration, the fourth part is
relating to decrees and instrument, the fifth part is relating to immovable property,
the sixth part is relating to movable property, the seventh part is relating to torts,
the eighth part is relating to trusts and trust property, the ninth part is relating to
miscellaneous matters and the last part is relating to suits for which there is no
prescribed period.
 There is no uniform of limitation for the suits under which the classifications has
been attempted.

 The limitation period is reduced from a period of 60 years to 30 years in the case of
suit by the mortgagor for the redemption or recovery of possession of the
immovable property mortgaged, or in case of a mortgages for the foreclosure or
 suits by or on the behalf of Central Government or any State Government including
the State of Jammu and Kashmir.
 Whereas a longer period of 12 years has been prescribed for different kinds of suits
relating to immovable property, trusts and endowments, a period of 3 years has
been prescribed for the suits relating to accounts, contracts and declarations, suits
relating to decrees and instruments and as well as suits relating to movable
property.
 A period varying from 1 to 3 years has been prescribed for suits relating to torts and
miscellaneous matters and for suits for which no period of limitation has been
provided elsewhere in the Schedule to the Act.
 It is to be taken as the minimum period of seven days of the Act for the appeal
against the death sentence passed by the High Court or the Court of Session in the
exercise of the original jurisdiction which has been raised to 30 days from the date
of sentence given.
 One of the main salient feature of the Limitation Act, 1963 is that it has to avoid the
illustration on the suggestion given by the Third Report of the Law Commission on
the Limitation Act of 1908 as the illustration which are given are most of the time
unnecessary and are often misleading.
 The Limitation Act, 1963 has a very wide range considerably to include almost all
the Court proceedings. The definition of ‘application’ has been extended to include
any petition, original or otherwise. The change in the language of Section 2 and
Section 5 of the Limitation act, 1963 includes all the petition and also application
under special laws.
 The new Act has been enlarged with the definition of ‘application’, ‘plaintiff’ and
‘defendant’ as to not only include a person from whom the application. Plaintiff or
defendant as the case may be derives his title but also a person whose estate is
represented by an executor, administrator or other representatives.
 According to Sections 86 and Section 89 of the Civil Procedure Code, it requires the
consent of the Central Government before suing foreign rulers, ambassadors and
envoys. The Limitation Act, 1963 provides that when the time obtained for obtaining
such consent shall be excluded for computing the period of limitation for filing such
suits.
 The Limitation Act, 1963 with its new law signifies that it does not make any racial
or class distinction since both Hindu and Muslim Law are now available under the
law of limitation as per the existing statute book. In the matter of Syndicate Bank v.
Prabha D. Naik, (AIR 2001 SC 1968) the Supreme Court has observed that the law
of limitation under the Limitation Act, 1963 does make any racial or class distinction
while making or indulging any law to any particular person.
According to Halsbury’s Laws of England, the Main
Objects of the Law of Limitations are as follows
Whereas it has been observed and expressed by the Court that there are almost three
different types of supporting reasons for the existence of statutes of limitation.

1. That long dormant claims have more of cruelty than justice in them.
2. That a defendant might have lost the evidence to dispute the State claim.
3. That person with good causes of actions should pursue them with.

There are two Major Broad Considerations on which the

Doctrine of Limitation and Prescription are based on
 That, the right which are not exercised for a long time are said to be as non-
existence.
 That, the rights which are related to property and rights which are in general should
not be in a state of constant uncertainty, doubt and suspense.

The main object of limit in any of the legal actions which is to give effect to the maxim
‘interest reipublicae ut sit finis litium’ which means that if the interest of the State is required
that there should be a limit to a litigation and also to prevent any kind of disturbance or
deprivation of what may have been acquired in equity and justice or by way long enjoyment
or what may have been lost by a party’s own inaction, negligence or laches.

The intention in accepting the concept of limitation is that “controversies are restricted to a
fixed period of time, lest they should become immortal while men are moral.”

There is a limitation to litigation which interposes the statutory bar. This statutory restriction
after a certain period of time gives a status to enforce an existing right. Simply, it neither
create any right in favour of any person nor does it define or create any cause of action
against the particular person but it prescribes about the remedy. These remedy can be
exercised only up to a certain period of time and not subsequently. The main object of the
statute of the Limitation Act, 1963 is more over a preventive kind and not to interpose a
statutory bar after a certain period of time and it gives a quietus to all the suit matters to
enforce an existing right.

The major purpose of the statutory of the Limitation Act, 1963 is not to destroy or infringe
the rights of an aggrieved person but to serve public in a better way and to save time. This
statute is basically founded on the public policy for fixing a life span for the legal action which
are taken place and to seek remedy in time with the purpose of general welfare. The object of
providing a legal remedy is to repair the damage which is caused by reason of legal injury.

Redress of the Legal Injury from Legal Action when

Suffered
The provisions of Limitation Act which are provided in the statute are the statute of repose, to
suppress frauds and to supply deficiency of proofs which are arising from the ambiguity,
obscurity or the antiquity. The presumptions proceed upon the claims which are extinguished
or are ought to be extinguished whenever they are not litigated with the prescribed period of
time.

The right has been measured as an equivalent with regards to making of the quick diligence
to the person. It has discouraged the litigation by buying some common receptacle which has
accumulated from the past times which are now unexplainable and have become inexplicable
due to lapse of time. The Limitation Act is a law of repose, peace and justice which has barred
the remedy after the failure of particular period of time. This is all because for the public
policy and expediency without extinguishing any right in certain cases.

It has been the topic of discussion in the Supreme Court and different High Court about the
object of the Law of Limitation. In the matter of State of Rajasthan v. Rikhab Chand [1], it
has been observed by the Rajasthan High Court that the rules of limitation are mainly
intended to induce the claimant in claiming the relief and also in avoiding the unexplainable
delay and latches in a suit.

Whereas, in the matter of M.P. Raghavan Nair v. State Insurance Officer [2], it has been
observed by the Kerala High Court that the Law of Limitation is based upon public policy
mainly aiming at justice, repose and peace.

In the matter of Rajender Singh v. Santa Singh [3], it was held by the Supreme Court of
India that “the object of the Law of Limitation is to prevent disturbance or deprivation of what
may have been acquired in equity and justice by a long enjoyment or what may have been
lost by a party’s own inaction, negligence or latches.”

In the matter of B.B. & D. Mfg. Co. v. ESI Corporation [4], it was observed by the Supreme
Court that-
 “The object of the Statutes of Limitations to compel a person to exercise his rights of
action within a reasonable time as also to discourage and suppress stale, fake or
fraudulent claims. While this is so, there are two aspects of the Statutes of Limitation —
the one concerns with the extinguishment of the right if a claim or action is not
commenced within a particular time and the other merely bars the claim without affecting
the right which either remains merely as a moral obligation or can be availed of to furnish
the consideration for a fresh enforceable obligation. Where a statute prescribing the
limitation extinguishes the right if affects substantive right while that which purely
pertains to the commencement of action without touching the right is said to be
procedural.”

In Balakrishnan v. M.A. Krishnamurthy [5], it was held by the Supreme Court that the
Limitation Act is based upon public policy which is used for fixing a life span of a legal remedy
for the purpose of general welfare. It has been pointed out that the Law of Limitation are not
only meant to destroy the rights of the parties but are meant to look to the parties who do
not resort the tactics but in general to seek remedy. It fixes the life span for legal injury
suffered by the aggrieved person which has been enshrined in the maxim ‘interest reipublicae
ut sit finis litium’ which means the Law of Limitation is for general welfare and that the period
is to be put into litigation and not meant to destroy the rights of the person or parties who
are seeking remedy. The idea with regards to this is that every legal remedy must be alive for
a legislatively fixed period of time.

The Law of Limitation is an adjective Law. It is lex fori. Thus, it can be said that the rules of
the Law of Limitation are generally prima facie with the rules of procedure and which has not
created any rights in favour of any particular person nor does they define or create any cause
of action. It has been simply prescribed that the remedy can be exercised only for a limited
fixed period of time and subsequently.

The two effective implementation which helps in for a quick disposal of a cases or matters
and which are also effective for litigation are Limitation and compensation of delay, which
plays a vital role before the court. The Law of Limitation helps to keep a check while pulling of
cases where it prescribes the period of time within which a suit is to be filled and also it is the
time which are available within which an aggrieved person can get the remedy conveniently
and in an easy manner. Whereas the Law of Compensation of delay helps to keep the
principle of natural justice alive and it also helps to state the facts that when different people
might have different problem then the same kind of sentence or a same singular rule may not
apply to all of them in a same manner. Thus, it is very much essential to hear the matter first
from them and then decide accordingly whether they are fit in the criteria of the judgment or
whether they should be given another chance. So, it can be said that Law of Limitation is very
much important for the country like India and it also plays a major role in a court of law.

What is Judgement and Decree?

The word ‘judgement’ is derived after combining two words namely, judge and statement. It
can also be termed as an act of judging. It is the conclusion or the result of judging. On the
other hand, the term decree can be termed as the judicial decision in a litigated cause
rendered by a Court of equity. It is the determination of a cause in a Court of admiralty or
Court of probate. The Court, after the case has been heard, shall pronounce judgement, and
on such judgement a decree shall follow. Section 33 of the Code of Civil Procedure describes
the term ‘Judgement and Decree’ together.

Difference between Judgement and Decree

Judgement  Decree

 A decree is based upon

 A judgement is based upon facts. 
judgement.

 Decree always follows a

 Judgment is made prior to decree.
judgement.

 A judgement contains facts of the  A decree contains the outcome of

case, the issues involved, the the suit and conclusively
evidence brought by the parties, determines the rights of the
finding on issues(based on evidence parties with regard to the issues
and arguments).  in dispute in the suit.

 The definition of the word judgement  The definition of the word decree
given in section 2(9) of the Code of given in section 2(2) of Code of
Civil Procedure, 1908 does not Civil Procedure, 1908 includes
include the word ‘formal’.  the word ‘formal’.

 Section 2(9) of the Code of Civil  Section 2(2) of the Code of Civil
Procedure, 1908 describes the term Procedure, 1908 describes the
judgement. term decree.

 A decree is divided into three

 Judgement has no types. 
types.

 Judgement may result in a

 The decree may be a preliminary
preliminary decree or a final decree
or final or partly preliminary and
or an order by itself, the judgement
partly final.
is always final. 

 After passing the decree, the suit

 Judgement leads to the final disposal
stands disposed of since the
of the suit after the decree is drawn
rights of the parties are finally
up.
determined by the court.
Judgement 
The term Judgement is defined in Section 2(9) of the Code of Civil Procedure, 1908. A
judgement contains facts of the case, the issues involved, the evidence brought by the
parties, finding on issues (based on evidence and arguments). Every judgement shall include
a summary of the pleadings, issues, finding on each issue, ratio decidendi and the relief
granted by the court. On a daily basis, numerous judgements are pronounced and various
cases are disposed of. Judgements play a very important role in the working of our judicial
system because they act as precedents for cases to come in the near future. A judge in the
judgement pronounced, always states the reasons for such a decision.

Pronouncement of a judgement
The word pronouncement means to make an official public announcement. Pronouncement of
a judgement means that after the hearing is completed i.e. after the Court has heard the
pleadings of the parties, the judgement shall be announced by the Judges in an open Court,
either at once or at some future day, after providing due notice to the parties or their learned
counsels.

If a judgement is not pronounced immediately then it must be pronounced within 30 days

from the date of the conclusion of hearing. However, sometimes it so happens that due to
exceptional and some extraordinary reasons like a bank holiday, strike or some other
situation it may be delivered within 60 days from the conclusion of the hearing. It is not
mandatory for a judge to read out the whole judgement and it would be enough if only the
final order is pronounced. The judge shall put the date on which the judgement was
pronounced along with his signature. Rule 2 Order XX of Code of Civil Procedure, 1908 
provides a judge with the right to pronounce the judgement which is already written but is
not pronounced by his predecessor.

After the Amendment Act of 1976, the time limit was provided between the hearing of the
arguments and the pronouncement of the judgement. Prior to this amendment no time limit
was provided as such. Such a time limit was provided because there was indefinitely
continuous imposition from all over India.

Copy of the judgement

Once the judgement is pronounced the copies of that particular judgement should be
immediately made available to the parties on payment of costs as specified, by the party
applying for such copy, of such charges as may be specified in the rules and orders made by
the High Court (H.C.) Such a rule is specified in Order XX Rule 6-B of the Code of Civil
Procedure, 1908.

Contents of the judgement 

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

 Judgements of a Court of Small Causes are satisfactory if they contain the points for
determination and the decision thereon.
 Judgments of other Courts shall contain:

1. Summary of the pleadings which is a concise statement of the case;

2. Issues which are the points for determination;
3. Findings on each issue and the decision thereon;
4. Ratio decidendi (reasons for such a decision); and
5. The remedy, which is the relief granted.

Alteration of a judgement
Once a judgement is dated and signed by the judge it can only be altered or amended if:

 There are arithmetical or clerical errors. (clerical errors refer to the errors made by
clerks and arithmetical errors refer to errors made in numbers such as addition,
subtraction, multiplication and division).
 There are errors due to accidental slips or omissions (these errors take place when
some essential element is left unnoticed) (Section 152) on review (Section 114).

Decree 
The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. A decree always
follows judgement and is based upon a judgement. It is divided into five types unlike
judgement which is final in itself. A decree may be final or preliminary. It is a formal
declaration or adjudication and is conclusive in nature. A decree is of three kinds namely,
preliminary decree, final decree and partly preliminary & partly final. A decree may be
delivered with an order. The decree contains the outcome of the suit and conclusively
determines the rights of the parties with regard to the issues in dispute in the suit. After
passing the decree, the suit stands disposed of since the rights of the parties are finally
determined by the court.

Deemed Decree 
A decree shall be deemed to include the rejection of a plaint and any question within Section
144 of Code of Civil Procedure,1908 but shall not include:

 any such sentence(adjudication) from which it appears that an appeal lies as an

appeal from an order, or
 any such order of discharge(dismissal) of default.    

Kinds of Decrees 
According to Section 2(2) of the Code of Civil Procedure,1908 decrees are divided into three
categories:

Preliminary Decree

In general sense, the word preliminary means preparation for the main matter, initial,
introductory, preparatory. In a legal sense, a preliminary decree is a decree where further
proceedings have to take place before the suit can be completely disposed off. It decides the
rights of the parties in respect to all or any of the matters of discussion but it does not
completely dispose of the suit. In such a decree the rights and liabilities of the parties are
stated leaving the actual result or decision to be worked out in future proceedings. A
preliminary decree is passed in those cases where the proceedings are to be carried out in
two different stages. The first stage is when the rights of the parties are adjudicated and the
second stage is when those rights are implemented or executed.

Final Decree 

In general sense, the word ‘final’ means last, ultimate, conclusive or decisive. In legal sense,
a final decree is a decree which completely disposes of the suit and settles all the questions in
discussion between the parties and nothing is left further for deciding thereafter. It is only
said to be final when such adjudication completely disposes of the suit.

Partly preliminary and partly final Decree

A decree is said to be partly preliminary and partly final when the court decides two questions
by the same decree. For instance, if the court passes a decree in favour of one party along
with a direction of inquiry for the other party, the former part of the decree is final while the
latter part is a preliminary decree for which further proceedings have to take place. For
example, in a suit of possession of a property with company ‘C’, if the court passes a decree
of possession of the property in favour of the plaintiff and directs an enquiry into the
company ‘C’, then the former part of the decree is final decree while the latter part is the
preliminary decree.

The necessity of a Decree 

The Code of Civil Procedure requires the passing of a decree in all the suits. A decree is based
upon judgement and it also follows a judgement which is the reason why it is an
indispensable and essential requisite. The decree is indispensable or an absolute requisite. It
is an essential part of the ultimate outcome of the suit. An appeal can be made against a
decree and not against a judgement. If the decree is absent an appeal cannot be ‘put in
motion’.

Contents of a Decree 
A decree always follows the judgement, coincide with it and contains:

 The suit’s number – Every suit has a particular number and it should be mentioned
in the decree. 
 The names, description and registered addresses of the parties – Every decree shall
have the names of all the parties of that particular suit, the proper description of the
parties of the suit, and the registered addresses of all the parties of the suit.
 The particulars of the parties claims or defence – Every decree shall contain the
details of the claims and the defences the parties are claiming as an outcome of the
said suit.
 The relief or the remedy granted to the aggrieved party – The decree should in
particular mention about the relief granted to the particular party as a remedy and
not a reward.
 The total amount of cost incurred in the suit-

1. by whom; or
2. out of what property; and
3. in what portions are they paid or are to be paid.
  The judgement’s date of pronouncement or delivery date of the judgement – The
decree should mention the date on which the judgement was delivered followed by
the decree.
 The judge’s signature on the decree – The judge’s signature is an essential and
indispensable element of any decree. The signature of the judge delivering the
judgement is an essential requisite.

Drawing up of a Decree 
Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree shall be drawn within
15 days of the judgement. An appeal can be favoured or preferred without filing a copy of a
decree if it is not drawn within 15 days of the judgement.

Decrees in Special cases

 In a lawsuit for the recovery or process of regaining or repossession of an
immovable property(real estate), the decree shall include a description of such
property so that it is sufficient to recognise or identify it.
 In a decree for movable property(personality), it must mention with the exact
amount of money to be paid as an alternative in case the delivery is not made due
to any reason either it be reasonable or appropriate.
 In a decree for payment of money, the Court may order that the payment of
decretal amount i.e., the  amount mentioned in the decree shall be:

1. postponed which is delayed to a future date; or

2. made by installments with or without interests.

 In a suit for the recovery or process of regaining or repossession of immovable

property, the Court may pass a decree-

1. for possession or gaining of property.

2. for past rents or mesne profits. (mesne profits are the profits of an estate received
by a tenant in wrongful possession and recoverable by the landlord)
3. that is a final decree in respect of rent or mesne profits in accordance with results of
such enquiry as mentioned.

 Rule 12A of the Code of Civil Procedure,1908 states that a decree for specific
performance of a contract for sale or lease of an immovable property which can also
 be termed as real estate shall specify the exact period within which the amount of
money or other sum is to be paid by the purchaser or lessee.
 Rule 13 of the Code of Civil Procedure,1908  states that the final decree shall be
passed or delivered in accordance with the result of preliminary enquiry i.e., in a
lawsuit for an account of any property either movable or immovable and for its due
administration under the decree of Court, before passing a final decree, the court
should pass a preliminary decree ordering accounts to be taken and enquiries to be
made. 
 Rule 14 of the Code of Civil Procedure,1908 states a decree in a pre-emption suit, it
is a suit where the displacement of a lower jurisdiction’s laws when they conflict with
those of a higher jurisdiction, where the purchase money has not been paid into
Court, shall specify a particular day on or before which the purchase money has to
be paid and direct that on payment to Court, the defendant shall deliver property to
the plaintiff, but if the payment is not made on a specific day, the lawsuit shall be
dismissed with costs. In cases the Court has settled upon rival claims to pre-
emption, the decree shall direct:

1. The claim or defence of each pre-emptor shall take effect proportionately if the
claims decreed are equal in degree.
2. The claim or defence of the inferior pre-emptor will not take place till the superior
pre-emptor fails to make the payment if the claims decreed are different in degree.

 In a lawsuit for dissolving of partnership or taking of partnership accounts, the Court

can pass a preliminary decree before passing a final decree declaring the exact
shares of all the parties, fixing of a particular day on which the partnership shall
become dissolved and directing the accounts to be taken and other necessary
actions to be done.
 In a lawsuit for accounts between a principal person and agent, the Court can pass a
preliminary decree before passing a final decree directing the accounts that has to
be taken and it can also provide special directions in regards to the mode of taking
accounts as well.
 In a decree passed in a lawsuit for partition of property either movable or
immovable or for separate possession of share in the property,

1. the decree shall declare the rights of several parties interested in that property but
shall direct partition or separation to be made by collector and in other cases of
immovable property in case the estate is assessed to the payment of revenue to the
government.
 2. the Court shall pass a preliminary decree declaring all the rights of the parties in
estate and giving necessary directions and then the final decree is passed, if
separation or partition cannot conveniently be made without further inquiry.

 A decree where the defendant has been allowed leave or start with a  counterclaim
against the initial claim of the plaintiff shall state with what amount is due to the
plaintiff and what amount is due to the defendant thereafter.

Interest
In the general aspect, interest refers to the price paid for obtaining or any price received for
providing, money or goods in a credit transaction which is calculated as a fraction of the
amount or value of what was borrowed initially. Interest is the fraction of amount of money
which the Court asks the losing party to pay to the aggrieved party as the initial principal sum
was not paid on time or the expenses incurred by the winning party in filing the documents
and making necessary contracts and legal notices. In a legal sense, the term interest is
defined in Section 34 of the Code of Civil Procedure, 1908.

Award of Interest 
The Court in the decree orders interest at a rate as the Court finds reasonable and
appropriate to be paid on the principal sum declared from the date of filing of the lawsuit to
the date of passing of the decree. The Court even allows further interest at a rate not
exceeding six percent per annum on the principal sum for any period prior to the institution of
the suit from the date of passing of the decree to the date of the payment or any such earlier
date as the Court finds appropriate and reasonable.

Division of Interest
According to the Code of Civil Procedure, 1908, the division of interest is divided into three
types:

Pre-lite

It is the amount of interest which is accrued or received prior to the institution of the suit on
the principal sum. The rate of interest is on the discretion of the Court but if the parties have
decided a rate of interest the Court shall consider it.
Pendente-lite

This interest is in addition to the pre-lite interest. This means it is the additional interest on
the principal sum declared by the court from the date of filing of the suit to the date of
passing the decree. The word means the pendency of a lawsuit in the Court of law.

Post-lite

This is the interest in addition to the pre-lite interest on principal sum and pendente-lite
interest on the principal sum. It should be added on the discretion of the Court and should
not exceed more than six percent per annum.

Rate of Interest 
The rate of interest awarded by the Court from the date of the lawsuit to date of the decree is
12% and is just, appropriate and reasonable and there is nothing to interfere. However, in
post-lite interest that is from the date of decree till realisation of the amount, rate of interest
can be charged upto 6% p.a. In pendente-lite, the rate of interest is fixed between 9%-12%

Recording of Reasons 
It is on the discretion of the judge to provide the rate of interest. If the judge does not
provide for the rate of interest or reduces or increases the rate then he has to state the
reason behind doing so in writing. The stating of the reasons by the judge for not providing
interest is essential so that no judge can make any arbitrary decisions. The providing of
reasons also depicts that the judge is fair with his decisions and is not biased towards any
party. 

Costs
In the general sense, the term cost means to incur a charge or to require payment of a
specified price. It simply means to calculate or estimate a price. The term cost is defined
in Section 35 of the Code of Civil Procedure, 1908. The primary objective of ordering costs is
to provide the litigant with the expenses incurred by him during the litigation. The provision
of providing costs is on the discretion of the court that it may grant order for payment of
costs to the winning party by the losing party subjected to pay for the expenses incurred
during the litigation period or while drafting legal notices and contracts. This is a kind of
remedy and it shall not be treated as a reward for the winning party and punishment for the
losing party. 

Granting of costs is at the discretion of the Court and if the court refuses to grant cost then it
should give reasons for doing so in writing. The discretion is based upon facts and
circumstances of the case and not by chance.

Kinds of Costs
The Code of Civil Procedure provides for the following kinds of costs:

General costs 

The term general costs are defined in Section 35 of Code of Civil Procedure,1908. General
costs are the cost which is incurred by the litigants and depends upon the Court’s discretion.
The general rule is that the losing party pays the winning party costs granted by the court. It
is the amount which is not treated as a reward for the winning party and a punishment for
the losing party but as a remedy. The judge can even refuse to grant costs but for that, a
reason has to be stated in writing.

Miscellaneous costs 

The term miscellaneous in the literal sense is used as something which is diverse in its
characteristics and cannot be placed in any specific category. Miscellaneous costs are defined
in Order XX A of the Code of Civil Procedure,1908. These costs are also known as Specific
Costs. They are granted under special circumstances as mentioned in Rule1 of the Code of
Civil Procedure,1908:

 Expenditure on notices required to be issued under the law by parties.

 Expenditure on notices not required to be issued under the law by parties.
 Expenditure incurred on typing, writing, printing, etc. on the pleadings.
 Charges paid by parties for inspection of documents.
 Expenditures on witnesses even though not summoned to the court.
 In case of appeals, expenses incurred by parties for obtaining any copies of the
pleadings, judgement, decree, etc.

Compensatory costs
The term compensatory can be generally defined as to make up for something, or to do
something to correct a previous act. It means providing compensation to the aggrieved party
by the way of damages or rewards or as the Court deems fit. Compensatory costs are defined
in Section 35A of the Code of Civil Procedure,1908. Compensatory costs are granted in the
cases where the claims of the other party are false or vexatious. Such costs are granted
under two conditions, namely, firstly, the claim must be false or vexatious. Secondly,
objections must be made by the other party that the party making the claim or defence had
knowledge of the fact that such claim was false or vexatious.

Costs for causing delay

These are the costs which the parties are liable to pay in case of default made on their part
such as appearing late in the Court, not submitting the required documents on the specified
time, not paying the costs on time for which further fine has been imposed. These are the
costs which are paid due to carelessness on the part of the parties. Costs for causing delay
are defined in Section 35B of the Code of Civil Procedure,1908. This section was introduced
by the Amendment Act,1976. These are costs which are imposed for causing the delay. It
states that where a party did not take a step which it should have under the code or obtained
an adjournment as regards the same, he will have to pay such costs to the other party so as
to reimburse him for attending Court on the designated date. Unless such costs are paid, the
plaintiff shall not be allowed to proceed further in his suit, if she should have paid the costs
and defendant shall not be allowed to proceed with the defence if he was liable to pay such
costs. If however, the party is unable to pay the costs due to circumstances beyond his
control, the court may extend the time. 

Conclusion
Hence, it could be said that judgement is a set of which decree is the subset. Interests and
costs are the amount to be paid to the winning party as a remedy and not a reward. It is not
a punishment for the losing party but just a remedy for winning party so that it could incur
the expenses caused due to drafting of legal notices, contracts and all expenses during the
litigation period for the purpose of litigation.

Execution of a Decree
The litigation consists of three stages, initiation of litigation, adjudication of litigation, and
implementation of litigation. The last stage of litigation, that is the implementation of
litigation is known as an execution. Once a decree or judgment is passed by the court, it is
the obligation of the person against whom the judgment is passed (judgment-debtor), to give
effect to the decree so as to enable the decree-holder to enjoy the benefits of the judgment.

By execution, a judgment-debtor is compelled to carry out the mandate of the decree or

order. Execution implies giving effect to an order or judgment of a court of justice. When the
decree-holder gets the thing granted to him by judgment, decree or order, the execution is
complete. 

Meaning, Nature and Scope

The term “execution” is not defined in the CPC. The term “execution” means implementing or
enforcing or giving effect to an order or a  judgment passed by the court of justice. In simple
words “execution” means the process of enforcing or giving effect to the decree or judgment
of the court, by compelling the judgment-debtor to carry out the mandate of the decree or
order and enable the decree-holder to recover the thing granted to him by judgment. 

Illustration:

X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be
called the decree-holder,  Y is the judgment-debtor, and the amount of Rs 20,000 is the
judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree is passed against him.
Suppose Y refuses to pay the decretal amount to X, X can recover the said amount by
execution through the judicial process. The principles governing the execution of a decree or
order are given in Section 36 to Section 74 (substantive law) and Order 21 of the code which
provides for procedural law.  

Execution proceedings under CrPC

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of
the code relating to the execution of orders and decree and stated that the Code contains
elaborate provisions which deal with all questions regarding executability of a decree in all
aspects. 

The Court further observed that numerous provisions of Order 21 take care of various
situations providing effective remedies to judgment-debtors, decree-holders and claimant
objectors. In the cases, where provisions are not capable of giving relief inadequate measures
and appropriate time, to an aggrieved party, then filing a regular suit in the civil court is the
solution.

The Court further explained that the judicial quality of the remedy under Civil Procedure Code
is considered to be superior as compared to other statutes therefore, the judges are expected
to do better as they are entrusted with the administration of justice

Courts which can execute decrees

Section 38 of the Code states that a decree can be executed either by the Court of the first
instance or by the Court to which it has been sent for execution.

Section 37 of the Code further establishes the scope of the expression “court which passed
a decree” with the object of enabling a decree-holder to recover the fruits of the decree. The
courts which fall within the said expression are as follows:

1. The court of the first instance;

2. The court which actually passed the decree in case of appellate decrees;
3. The court which has jurisdiction to try the suit at the time of execution, if the court
of first instance ceased to exist;
4. The court which at the time of execution had jurisdiction to try the suit, if the court
of first instance has ceased to have jurisdiction to execute the decree.

Explanation to the section clarifies that the court of first instance shall have jurisdiction to
execute a decree even in the case of any area being transferred from the jurisdiction of the
court of first instance to the jurisdiction of any other court. In such cases, the court to the
jurisdiction of which such area has been transferred will also have jurisdiction to execute the
decree, provided that the said court had jurisdiction to try the said suit when the application
for execution was made.

Transfer of decree for execution

Section 39 provides that when a decree-holder makes an application to the court of the first
instance to send the decree for execution to another court, the court of first instance may do
the same if any of the following grounds exist:

1. if the judgment-debtor carries on business, or resides or personally works for gain,

within the jurisdiction of such Court;
 2. if the property of judgment-debtor does not come under the jurisdiction of the Court
of the first instance but it comes under the local limits of the jurisdiction of such
Court;
3. if the decree directs delivery or sale of immovable property situated outside the
jurisdiction of the Court which passed the same;
4. if the Court which had passed the decree considers that the decree should be
executed by another court, but it shall record the reasons in writing for doing the
same.

Section 39(2) states that the Court of the first instance may suo motu send it for execution to
any subordinate Court of competent jurisdiction.

The Section further states that if the execution of the decree is against a person or property
outside the territorial jurisdiction of the court passing the decree, then such Court has no
power to execute the decree.

In Mahadeo Prasad Singh v. Ram Lochan, the Supreme court held that the provisions of
Section 39 are not mandatory because the court will have discretion in the matter which can
be exercised by it, judicially. The decree-holder would not have any vested or substantive
right to get the decree transferred to another court.

Execution of foreign decrees in India

The Code lays down the procedure for execution of foreign judgments and decrees in India.
While enforcing a foreign judgment or decree in India it should be ensured that the judgment
or decree is a conclusive one, given on the merits of the case and by a court having
competent jurisdiction.

What is a foreign judgment and a foreign decree?

Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As
per section 2(5) of CPC, a foreign court implies a court which is situated outside India and
which is not established or continued by the authority of the Central Government.

A foreign decree is defined in Explanation II to section 44A of the CPC as a decree or

judgment of such court and which directs that a sum of money is payable. However, such
sum of money shall not be a sum payable in respect of taxes or other charges of a like nature
or in respect of any penalty or fine. It should not include an arbitral award, even if such an
award is enforceable as a decree or judgment.

Foreign judgment or decree needs to be conclusive

A foreign decree or judgment needs to be conclusive in nature. Section 13 of the CPC lays
down the test for conclusiveness of a foreign judgment or decree, which says that a foreign
judgment would be conclusive in all cases except the following :

 When a court of competent jurisdiction has not pronounced it;

 When it has not been pronounced on the merits of the case;
 When it has been based on a wrong view of international law or a refusal to
recognize the law of India in cases in which such law is applicable;
 When the proceedings carried out while obtaining the judgment are opposed to
natural justice;
 When such judgment has been obtained by fraud;
 When it sustains a claim that had been based on a breach of any law in force in
India.

Thus, a foreign judgement or decree shall pass the seven tests mentioned above. Otherwise,
such foreign judgment or decree cannot be enforced in India as such judgment or decree will
not be regarded as conclusive if it fails any of these tests.

Mode of enforcement of a foreign judgment or decree

Two ways in which a decree or foreign judgment can be enforced in India are as follows:

 Where the decree or judgment has been given by a court in a reciprocating

territory;
 Where decree or judgment has been given by a court in a non-reciprocating
territory.

1. Execution of foreign decree of a reciprocating territory in India

According to Section 44A of the CPC, a decree of any superior court of a reciprocating
territory shall be executed in India as that has been passed by the district court.

“Reciprocating territory“ signifies, any territory or country outside India which the Central
Government has declared to be a reciprocating territory, by notification in the Official
Gazette, and “superior courts“, with reference to any reciprocating territory, means such
courts that would be specified in the said notification.

Therefore, a judgment which has been pronounced by a court of a reciprocating territory can
be enforced in India as an Indian decree by filing an execution application. A certified copy of
a decree of any superior court of a reciprocating territory should be filed in a District Court,
once this is done, the decree shall be executed as if it had been passed by the District Court
of India and the provisions governing execution which are laid down in Order 21 of the CPC
will be applicable to the decree.

While filing the execution application the original certified copy of the decree shall be filed
along with a certificate from the superior court stating the extent to which the decree has
been satisfied or adjusted.

2. Execution in case of decrees from non-reciprocating territories

In the cases where a judgment or decree has not been pronounced by a court of a
reciprocating territory, it can be executed only when a fresh suit on that foreign judgment is
filed in a court of  India which has competent jurisdiction to entertain the same.

The Bombay High Court, in Marine Geotechnics LLC vs. Coastal Marine Construction &
Engineering Ltd., observed that when a decree has been pronounced by a court of a non-
reciprocating foreign territory, it can not be executed unless a fresh suit has been filed by the
decree-holder on that foreign decree or on the original cause of action, or both. The suit must
be filed within a period of three years from the date of the judgment or decree. The person
seeking execution shall show that the foreign decree passes the tests of Section 13. 

The court further observed that Section 13 of the Code provides substantive law and Section
44A of the Code is an enabling provision and it enables a decree-holder to put a decree
obtained from a court of a reciprocating territory into execution. Section 13 clearly expresses
the principles of private international law, that a court will not enforce a foreign judgment of a
competent court. 

Execution of Indian decrees in a foreign territory

Section 45 of the Code is related to the execution of decrees outside the territory of India. It
states that a Court has the power to send a decree for execution to a Court outside India
which has been established by the Central Government’s authority. It should be ensured that
the State has, by notification in the Official Gazette, declared the said section can apply to
such Court. A plain reading of the aforesaid  provision yields the following features:

1. The decree which has to be executed should be of an Indian Court and it should be
for execution in a foreign territory.
2. The Central Government should have established the transferee court in such
foreign territory.
3. The State Government should have declared by notification in the Official Gazette
that this section will apply to the said foreign Court.

The provision, therefore, prescribes the prerequisite conditions for the execution of an Indian
decree outside the country. Therefore, in the absence of either of the aforesaid conditions in
Section 45, an Indian Court has no jurisdiction to send its decree for execution to a Court not
situated in India.

Execution of decree at more than one place

There is no provision in the Code which prevents a decree-holder from executing a decree
simultaneously at more than one place against the property of the judgment-debtor.

In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors, Supreme Court observed that
“simultaneous execution proceeding in more than one place is possible but the power shall be
used in a restricted manner, in exceptional cases by imposing proper terms so that the
judgment debtors do not face any hardship because of several executions are being allowed
to be proceeded with at the same time.” Therefore, simultaneous execution proceedings are
not without jurisdiction or illegal. 

Moreover, as per Section 39 of the Code, simultaneous execution of a decree is permissive in

nature as it provides for execution of a decree either by the Court of first instance or by the
Court to which it is sent for execution. 

Procedure in execution
Section 51 to 54 of the Code talks about the procedure in execution.

Section 51
The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may execute
decree as per the mode of implementation prayed by the decree-holder or as the court deems
fit.

Mode of executing decree

 By delivery of any property (movable or immovable) specifically decreed. 

 By sale of the property with or without the attachment of the property. If the
property is situated within the jurisdiction of the court then it has the power to
attach the property.
 By arrest and detention. However, this mode should not be exercised without giving
a reasonable opportunity to the judgment-debtor, in the form of a show-cause
notice as to why he should not be imprisoned. 
 Execution by appointing a receiver
 If any other mode apart from the ones mentioned in clause(a) to (c) needs to be
used in the execution of a decree then clause(e) comes into play.

Section 52
This section deals with the cases where the decree is passed against the legal representative
of the judgment-debtor (deceased). So long as the property of the deceased remains in the
hands of a legal representative, a decree can be executed against the property, if it is for the
payment of money out of the property of the deceased and if the decree has been passed
against the party as the legal representative of the deceased person.

In a situation where the property which is in the possession of the judgement-debtor came in
the hands of the legal representative and it has not been duly applied by him, the court will
enforce the execution of the decree against him as if the decree was to the extent passed
against him personally.

Section 53
The Section states that when a property is liable for payment of a debt of a deceased
ancestor and it is in the hands of a son and descendant, then the property will be deemed to
be of the deceased which has as his legal representative come into the hands of the son or
other descendants.
Section 54
When a decree has been passed for partition or for the separate possession of a share of an
undivided estate for the payment of revenue to the government, this section comes into play.
The partition of the estate or share needs to be made by the collector,  but if the collector
denies making the partition of the revenue paying property, then the civil court can do so. To
attract the provisions of this section, the plaintiff asking for the division of government
revenue is not deemed as an essential condition.

Powers of the transferor court

Once a court which has passed a decree and transferred it to another court of competent
jurisdiction, it would cease to have jurisdiction over that decree and it cannot execute the
decree. Then, only the transferee court can entertain an application for execution.

Powers of the transferee court

Under Order 21 Rule 8 of the Code, if a decree under the provisions of section 39 has been
sent for execution to another district, it may be executed by either the district court to which
it was sent or by a subordinate court which has competent jurisdiction, to which the district
court may refer it.

Section 42 provides for the powers of the transferee court and states that the Court to which
a decree has been sent for execution shall have the same powers in execution of such decree
as if it had been passed by itself.

The Court has the power to punish the persons who cause obstructions in the execution of
the decree and the power shall be exercised by the court as if the decree has been passed by
it. The main object of giving such powers to the transferee court is to ensure that the
judgment-debtor pays the money or gives such other thing to the decree-holder as would be
directed by the decree.

The Court will have the following powers, namely:—

 To send the decree for execution to another Court under section 39.

 To enforce execution of a decree against the legal representative of the deceased
judgment-debtor under section 50.
  To order attachment of a decree.

However, the court to which a decree is sent for execution will not have the power to order
execution at the instance of the transferee of the decree and the power to grant leave to
execute a decree passed against a firm against any person, other than a person referred to
in Rule 50 of Order XXI.

Powers of executing court

The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may execute
decree as per the mode of implementation prayed by the decree-holder or as the court deems
fit.

Mode of executing a decree

 By delivery of any property (movable or immovable) specifically decreed. 
 By sale of the property with or without the attachment of the property. If the
property is situated within the jurisdiction of the court then it has the power to
attach the property.
 By arrest and detention. However, this mode should not be exercised without giving
a reasonable opportunity to the judgment-debtor, in the form of a show-cause
notice as to why he should not be imprisoned. 
 Execution by appointing a receiver.
 If any other mode apart from the ones mentioned in clause(a) to (c) needs to be
used in the execution of a decree then clause(e) comes into play.

Conclusion
It clearly appears from the above discussion, that execution means implementing or enforcing
or giving effect to an order or a  judgment passed by the court of justice. The provisions
contained in Order 21 covers different types of situation and provide effective remedies to the
judgment-debtors, claimant objectors and third parties apart from the decree-holder.

The Code takes care of the rights of judgment-debtors too. Various modes of execution of a
decree are also provided by the Code which includes arrest, detention of the judgment-
debtor, delivery of possession, attachment of the property, by sale, partition, the
appointment of receiver and payment of money etc. Thus, the provisions are rendered
effective or capable of giving relief to an aggrieved party.

UNIT-3
An appeal is a remedial concept determined as an individual’s right to seek justice against an
unjust decree/order via referring it to a Superior Court. Sections 96 to 99A; 107 to 108
& Order 41 of the  Code of Civil Procedure, 1908 deal with appeals from original decrees
known as First appeals. 

Meaning of appeal
The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law Dictionary, while
construing the concept of ‘appeal’ in its most original and natural sense, explains it as “the
complaint to a superior court for an injustice done or error committed by an inferior one,
whose judgment or decision the Court above is called upon to correct or reverse. It is the
removal of a cause from a Court of inferior jurisdiction to one of superior jurisdiction, for the
purpose of obtaining a review and retrial”. 

Essentials of appealing cases

An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on
questions of law & fact with jurisdiction to confirm, reverse, modify the decision or remand
the matter to the lower forum for fresh decision in compliance of its directions. The essentials
of appealing cases can be narrowed down to 3 elements:

 A decree passed by a judicial/administrative authority;

 An aggrieved person, not necessarily a party to the original proceeding; and
 A reviewing body instituted for the purposes of entertaining such appeals.

Right to appeal
The right to appeal is a statutory & substantive one. The statutory nature of an appeal implies
that it has to be specifically conferred by a statute along with the operative appellate
machinery as opposed to the right to institute a suit, which is an inherent right. It is
substantive in the sense that it has to be taken prospectively unless provided otherwise by
any statute. This right could be waived off via an agreement, and if a party accepts the
benefits under a decree, it can be estopped from challenging its legality. However, an appeal
accrues to the law as found on the date of the institution of the original suit.

One right to appeal

Section 96 of the CPC provides that an aggrieved party to any decree, which was passed by a
Court while exercising its original jurisdiction, is conferred with at least one right to appeal to
a higher authority designated for this purpose, unless the provisions of any statute make an
exception for it. Section 97, 98 and 102 of the CPC enumerate certain conditions under which
no further appeal is permitted, hence attributing to a single right of appeal.

No right to appeal
No person has a right to appeal against a decision unless he is a party to the suit, except on
special leave of the Court. An essential element to be taken into account while considering
one’s right to appeal is whether such person is adversely affected by the decision/suit, which
is a question of fact to be determined in each case. 

Distinction between suit and appeal

Suit Appeal

Where a cause is created and issues are An appeal only reviews & corrects the
disputed on questions of both facts and law, proceedings in a case already constituted
it is known as a suit. but does not create a cause.

A suit is an attempt to achieve an end via a

As per  Dayawati v. Inderjit, it is the
legal procedure instituted in a Court of law for
continuation of a suit in certain situations.
enforcing one’s right/claim.

An appeal is filed in an Appellate Court for

A suit is filed in the lowest Court in its
the purposes of reviewing the decision of
respective hierarchy for trial.
the inferior Court.
Garikapati Veeraya v. Subbiah Chaudhary
In the instant case, it was held that the pre-existing right to appeal to the Federal Court
continued to exist and the old law which created such a right also continued to exist. It
construed to the preservation of this right while recognizing the change in its judicial
machinery from the Federal Court to the Supreme Court. However, the continuance of the old
law is subject to the provisions of the Constitution.

The distinction between appeal and revision

Appeal  Revision

A revision to High Court is available only

An appeal lies to a Superior Court from every
in those cases and against such orders
original decree unless expressly barred.
where no appeal lies.

There is no such right of revision

A right of appeal is one of substantive nature
because revisional power is purely
conferred by the statute.
discretionary.

An appellate jurisdiction can be exercised only

through a memorandum of appeal filed before The revisional jurisdiction can be
the Appellate Court by the aggrieved party and exercised suo motu as well.
cannot be exercised suo motu.

An application for revision is

An application for appeal is maintainable on
maintainable on the ground of
legal grants as well as on question of fact.
jurisdictional error.

An appeal abates if the legal representative of A revision may not abate and the High
the deceased are not brought on record within Court has a right to bring the proper
the time allowed by law. parties before the Court at any time.

A Court of appeal can, in the exercise of its The High Court or the revisional Court
powers, set aside the findings of facts of cannot, in the exercise of its revisional
subordinate Courts. powers, set aside the findings of facts of
 subordinate Courts.

First appeal
Section 96 of the CPC provides that an appeal shall lie from a decree passed by any Court
exercising original jurisdiction to the authorized appellate Courts, except where expressly
prohibited. A combined reading of Sections 2(2), 2(9), & 96 of the CPC indicates that a
regular First appeal may/may not be maintainable against certain adjudications. 

Second appeal
Section 100 provides for a second appeal under this code. It states that an appeal shall lie to
the High Court from a decree passed in the first appeal by a subordinate Court, excepting the
provisions speaking to the contrary. The scope of exercise of jurisdiction under this section is
limited to a substantial question of law framed at the time of admission of appeal or
otherwise. 

Conversion of an appeal into revision

In the case of Bahori v. Vidya Ram, it was held that since there’s no specific provision under
the CPC for the conversion of an appeal into a revision or vice versa, the exercise of power by
the Court has to be only under Section 151. Further, the inherent powers of the Court,
though discretionary, permit it to pass such orders as may be required to meet the ends of
justice. The only precondition to such conversion is that due procedure is adhered to during
the filing of the original appeal/revision.

Who may appeal?

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

 Any party to the suit adversely affected by a decree, or if such party is dead, by his
legal representatives under Section 146;
 A transferee of the interest of such party, who so far as such interest is concerned,
is bound by the decree, provided his name is entered on the record of the suit;
  An auction purchaser may appeal against an order in execution setting aside the
sale on the ground of fraud;
 No other person, unless he is a party to the suit, is entitled to appeal under Section
96.

A person, who is not a party to the suit, may prefer an appeal from a decree/order if he’s
bound/aggrieved/prejudicially affected by it via special leave of the appellate Court.

Appeal by one plaintiff against another plaintiff

In Iftikhar Ahmed v. Syed Meherban Ali, it was concurred that if there exists a conflict of
interest between plaintiffs and it is necessary to resolve it via a Court to relieve the
defendant, and if it is in fact decided, it will operate on the lines of res judicata between co-
plaintiffs in the subsequent suit. 

Appeal by one defendant against another defendant

The rule in a case where an appeal is preferred not against the originally opposite parties but
against a co-defendant on a question of law, it could be allowed. Such an appeal would lie
even against a finding if it’s necessary while operating as res judicata (a matter that has been
adjudicated by a competent Court and hence may not be pursued further by the same
parties).

Who cannot appeal?

A party who waives his/her right to prefer an appeal against a judgment cannot file it at a
later stage. Further, as inferred from Scrutton L.J.’s words:

“It startles me that a person can say the judgment is wrong and at the same time accept the
payment under the judgment as being right….In my opinion, you cannot take the benefit of
judgment as being good and then appeal against it as being bad”,

If a party ratifies any decision of the Court by accepting and acknowledging the provisions
under it, it may be estopped from appealing that judgment in a higher forum. 

The appeal against ex parte decree

In the first appeal under Section 96(2), the defendant on the merits of the suit can contend
that the materials brought on record by the plaintiff were insufficient for passing a decree in
his favour or that the suit was not otherwise maintainable. Alternatively, an application may
be presented to set aside such ex parte decree (it is a decree passed against a defendant in
absentia). Both of these remedies are concurrent in nature. Moreover, in an appeal against an
ex parte decree, the appellate court is competent to go into the question of the propriety or
otherwise of the ex parte decree passed by the trial court. 

No appeal against consent decree

Section 96(3), based on the broad principle of estoppel, declares that no decree passed by
the consent of the parties shall be appealable. However, an appeal lies against a consent
decree where the ground of attack is that the consent decree is unlawful being in
contravention of a statute or that the council had no authority. 

No appeal in petty cases

Section 96(4) bars appeals except on points of law in cases where the value of the subject-
matter of the original suit does not exceed Rs. 10,000, as cognizable by the Court of Small
Causes. The underlying objective of this provision is to reduce the number of appeals in petty
cases.

The appeal against Preliminary Decree

Section 97 provides that the failure to appeal against a preliminary decree is a bar to raising
any objection to it in the appeal against a final decree. The Court in the case of Subbanna v.
Subbanna provides that, the object of the section is that questions which have been urged by
the parties & decided by the Court at the stage of the preliminary decree will not be open for
re-agitation at the stage of preparation of the final decree. It’d be considered as finally
decided if no appeal is preferred against it. 

No appeal against a finding

The language of Section 98(2) is imperative & mandatory in terms. The object appears to be
that on a question of fact, in the event of a difference of opinion, views expressed by the
lower court needs to be given primacy & confirmed. The appellate court cannot examine the
correctness of the finding of facts and decide upon the correctness of either view.

The appeal against a dead person

A person who has unknowingly filed an appeal against a person who was dead at the time of
its presentation shall have a remedy of filing an appeal afresh against the legal heirs of such
deceased in compliance of the Limitation Act.

Forms of appeal
Appeals may be broadly classified into two kinds:

 First appeal; and

 Second appeal.

The sub-categories under appeals are:

 Appeal from original decree;

 Appeal from order;
 Appeal from appellate decree/second appeal/to High Court;
 Appeal to the Supreme Court.

Forum of appeal
It is the amount/value of the subject-matter of the suit which determines the forum in which
the suit is to be filed, and the forum of appeal. The first appeal lies to the District Court if the
value of the subject matter of the suit is below Rs. 2,00,000; and to the High Court in all
other cases.

Presentation of appeal
Order 41 provides the requirements for a valid presentation of an appeal that has to be made
by way of a memorandum of appeal which lays down the grounds for inviting such judicial
examination of a decree of a lower court.
Summary dismissal
In Hanmant Rukhmanji v. Annaji Hanmant, it was held that when an appellate Court
dismisses an appeal under Section 151, a judgment has to be written summarising the cogent
reasons for such dismissal, along with a formal decree.

Doctrine of merger
Any decree passed by the appellate Court is a decree in the suit. As a general rule, the
appellate judgment stands in the place of the original judgment for all purposes, i.e. the
decree of the lower Court merges in the decree of the Superior Court. In-State of Madras v.
Madurai Mills Co Ltd., it was held that this doctrine is not a rigid one with universal
application, but it depends on the nature of the appellate order in each case and the scope of
the statutory provisions conferring such jurisdiction. 

Cross objections
According to Order 41, R.22(1) & 33, cross-objections can be made by the defendants.
They’re necessary only when some directions are issued against them that are to be
challenged on the basis of which part relief has been granted to the plaintiff even without
such cross-objections.

Powers of Appellate Court

Section 107 prescribes the powers of an appellate Court:

 To remand a case;
 To frame issues & refer them for trial;
 Reappraisal of evidence when a finding of fact is challenged before it;
 To summon witnesses;
 Can reverse inference of lower Court, if not justified;
 Appreciation of evidence.

Duties of an appellate court

  The appellate Court has a duty to analyze the factual position in the background of
principles of law involved and then decide the appeal.
 To provide cogent reasons for setting aside a judgment of an inferior Court. 
 To delve into the question of limitation under Section 3(1) of the Limitation Act.
  To decide the appeal in compliance with the scope & powers conferred on it under
Section 96 r/w O.XLI, R.31 of the CPC.

Judgment
Section 2(9) states that a “judgment” refers to the statement given by the Judge on the
grounds of a decree/order.

Decree
Section 2(2) provides that a “decree” is a formal expression of an adjudication which
conclusively recognises the rights of the parties with any of the disputed matters in a suit,
and maybe preliminary/final. It includes the rejection of a plaint under Section 144 but does
not include adjudication that’d result in an appeal from order; or any order of dismissal for
default.

Letters patent appeal

Section 100A expressly bars a Letters Patent Appeal from an order of a learned Single Judge
of the High Court, on/after 01/07/2002, in an appeal arising from an original/appellate
decree. The bar is absolute & applies to all such appellate orders.  

Appeal to SC
Article 133 of the Constitution of India & Section 109 of the CPC provides the conditions
under which an appeal could be filed in the Supreme Court:

 From a judgment, decree, or final order of the High Court;

 A case pertaining to a substantial question of law of general significance;
 The High Court opines it to be fit for the Supreme Court to deal with such a
question.
Conclusion
Appeals are recognized as statutory rights of persons aggrieved by any decision of an inferior
court in the interest of justice. First appeals are a form of appeal prescribed under the Code
of Civil Procedure. The period of limitation in case of an appeal to the first appellate authority
is 90 days where it lies to the High Court. Finally, it can be concluded that the provisions of
the CPC extensively deal with the substantive as well as procedural aspects relating to all
kinds of appeals, while making express modifications in order to be accommodative of the
more specific legislation.