Page|1

ALIGARH MUSLIM
UNIVERSITY
MALAPPURAM CENTRE,
KERALA

GCT-1 ASSIGNMENT

In the Subject of
THE CODE OF CIVIL PROCEDURE II

Semester- VII
On the Topic

“Introduction to Appeal and Appeal From Original

Decree- Section 96”

Submitted To Submitted By

Mr. Alinihas V. Vaibhav Teotia

Asst. Prof. RollNo. 18Ballb03

Dept. Of Law (AMUMC). En.No- GJ3957

 Page|2

TABLE OF CONTENTS

S.No. PARTICULARS P.No.

1 Introduction 3
2 Meaning Of Appeal 3
4
3 Object Of Appeal
4
4 Elements Of Appeal 4
5 Right Of Appeal 5
6 Appeal is Continuation of Suit
5
7 First Appeal- Statutory Provision : Section 96 6
8 Who may file appeal?
9 Who cannot appeal? 6

10 Appeal against ex parte decree – S.92(2) 7

11 Appeal against consent Decree – S.92(3)
12 No appeal in plenty cases 8
13 8
Limitation
9
Conclusion 10
14
15 Bibliography 12
13
 Page|3

INTRODUCTION

It is general rule that as soon as court pronounced the decision as to the matter in issue one
party will become happy as the decision comes in his favour and other will be aggrieved one.
Thereafter the aggrieved party if wishes so will approach the appellate court and file the
appeal to make the decision in favour by every possible legal way. Normally suit concludes
by pronouncement of final judgment under Order 20 Rule .So, if any party is aggrieved by
such judgment and decree, he can appeal against such judgement and decree. He can even
appeal against a preliminary decree.

The first appeal may be claimed as of a statutory right whereas other appeals squarely rest on
the discretion of the court. The statutory right of appeal accrues to a party on the date of
institution of suit whereas it actually comes into existence when any adverse judgment is
passed against any party to the suit and then only he can exercise it.

APPEALS: MEANING

The expression “appeal” has not been defined in the Code. According to the dictionary
meaning, “appeal” is “the judicial examination of the decision by a higher court of the
decision of an inferior court”. 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 ordinary acceptation of
the term.1

In Nagendra Nath Dey v. Suresh Chandra Dey2, the Privy Council held:

“There is no definition of appeal in the Code of Civil Procedure, but their lordships have
no doubt that 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
…. In other words, it is a complaint made to the higher court that the decree passed by the
lower court is unsound and wrong.

1 Jatindra Kumar Das, “Code of Civil Procedure”, PHI Learning Pvt. Ltd. Delhi, ed. 2014, pg. 610.
2 AIR 1932 PC 165.
 Page|4

WHAT IS THE OBJECT OF APPEAL?

It is based on the principle that all men are fallible and judges are human beings who may
commit a mistake. A judge who has not committed an error is yet to be born. The dictum
applies to all Judges from lowest to highest courts. Basic object of appeal is to test soundness
of decision of lower court. The Law Commission also observed, “An unqualified right of first
appeal may be necessary for the satisfaction of the decretal litigant but a wide right of second
appeal is more in the nature of luxury”.

ELEMENTS OF APPEAL

Every appeal has three basic elements:3

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.

RIGHT OF APPEAL

A right of appeal is not an inherent or natural right. 9 An appeal is a creature of the statute and
there is no right of appeal unless it is given clearly and in express terms by a statute. 4
Whereas sometimes an appeal is a matter of right, sometimes it depends upon the discretion
of the court. 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 exercised when the adverse judgement is
pronounced, such right is to be governed by the law prevailing at the date of the institution of
the suit or proceeding and not by the law that prevails at the date of the decision or at the date
of the filing of the appeal.5

Right to appeal is statutory and substantive right. It is not merely appeal procedural right.
Statutory right means must be conferred by statute unless it provides there won’t be any right
to appeal. While right to institute a suit is not conferred by law. The right is inherent. But
right to appeal has to be conferred by appeal statute. Where statute provides for right to
appeal, it may constitute appeal machinery where shall the appeal lie. While the same isn’t

3 C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013, p. 476. 9
Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393.
4 Anant Mills Co. Ltd. v. State of Gujarat, (1975) 2 SCC 175.
5 Garikapati Veerya v. N. Subbiah Chaudhary, AIR 1957 SC 540.
 Page|5

true for right to sue. A civil suit has to be filed subject to condition of jurisdiction. An appeal
is appeal substantive right. Right to appeal can’t be taken retrospectively because general rule
of specific interpretation. Substantive law operates prospectively unless an express statute
provides so.6 The law of limitation may deprive a person of his right that he may enjoy to
prefer an appeal by virtue of statutory provisions.7 This acts as an condition for filing an
appeal that if you want to file an appeal, than you will have to file within the period of
limitation.

In Anant Mills Co. Ltd. v. State of Gujarat,8 speaking for the Supreme Court, Khanna, J.
said:

“It is well-settled by several decisions of this court that the right of appeal is a creature of
a statute and there is no reason why the legislature while granting the right cannot impose
conditions for the exercise of such right so long as the conditions are not so onerous as to
amount to unreasonable restrictions rendering the right almost illusory.”

APPEAL IS A CONTINUATION OF SUIT

An appeal is a continuation of suit and hence, decree passed by an appellate court would be
construed as decree passed by the Court of first instance. An appeal is virtually a rehearing of
the matter. The appellate court possesses the same powers and duties as the original court.
Once again, the entire proceedings are before the appellate court which can review the
evidence as a whole, subject to statutory limitations, if any, and can come to its own
conclusion of such evidence.9 In Dayawati v. Inderjit17, speaking for the Supreme Court,
Hidayatullah, J, stated:

“An appeal has been said to be ‘the right of entering a superior Court and invoking its aid
and interposition to redress the error of the Court below’. The only difference between a
suit and an appeal is that an appeal ‘only reviews and corrects the proceeding in a cause
already constituted but does not create the cause’.”

It is obvious that when an appeal is made, the appellate authority can do one of the following
three things, namely:

6 http://www.legalserviceindia.com/article/l63-Appeals.html assessed on 06-03-2017 at 23:27 p.m.

7 Sukumar Ray, “The Code of Civil Procedure”, Universal Law Publishing Pvt. Ltd., Delhi, ed. 2008, pg. 282.
8 (1975) 2 SCC 175.
9 Ramankutty v. Avara, (1994) 2 SCC 642. 17
AIR (1966) SC 1423.
 Page|6

It may reverse the order under appeal; may modify that order; and may merely dismiss the
appeal and thus confirm the order of the lower court without any modification.
In all three cases after disposal of the appeal by the appellate authority, the order so passed by
the authority will be operative irrespective of the fact that this order has reversed, modified or
confirmed the decision of the lower court. In fact it is the appellate decision alone which
subsists and operative as well as capable of enforcement.10

RIGHT OF APPEAL: MATERIAL DATE

The right of appeal is a vested right and such a right to enter the superior court 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 law
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 or at the date of the filing of the appeal.19

FIRST APPEALS

STATUTORY PROVISION

Section 96-99A, 107 and Order 41 of the Code confers the right of appeal from the court of
first instance. It reads as under:

96. Appeal from Original decree:

1) 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 the Court authorized to hear appeals from the decisions of such Court.
2)Every 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.
4)No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of Small Causes, when the amount or value of the subject-matter of
the original suit does not exceed ten thousand rupees.

WHO MAY APPEAL?

10 Collector of Customs v. East India Commercial Co. Ltd., AIR (1963) SC 1124. 19
Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369 (PC).
 Page|7

Section 96 of the Code recognizes the right of appeal from every decree passed by any court
exercising original jurisdiction. It does not refer to or enumerate the persons who may file an
appeal. But before an appeal can be filed under this section, two conditions must be satisfied:

1) subject-matter of the appeal must be 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”, and
2) party appealing must have been adversely affected by such determination.

The ordinary rule is that only a party to a suit adversely affected by the decree or any of his
representatives-in-interest may file an appeal. 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 is aggrieved by it or is prejudicially affected by it.11

The test whether a person is an aggrieved person is to see whether he has a genuine grievance
because an order has been made which prejudicially affects his interests either pecuniary or
otherwise.12

It was observed in the case of Krishna Chandra Golder v. Mahesh Chandra Sahu13, “the
question who may appeal is determinable by the common sense of consideration that there
can be no appeal where there is nothing to appeal about.”

From the above general principles, the following persons are entitled to appeal under this
section:

1) Any party to the suit, who is adversely affected by the decree or if such party
is dead, his legal representatives.14
2) A person claiming under a party to the suit or a transferee of the interests 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.15
3) A guardian ad litem appointed by the court in a suit by or against a minor.16
Any other person, with the leave of the court, if he is adversely affected by the decree.An
11 Ibid.
12 Adi Pherozshah Gandhi v. H.M. Seervai, AIR 1971 SC 385.
13 (1905) 9 CWN 584.
14 S. 146.
15 Ibid.
16 S. 147, Order 32 Rule 5.
 Page|8

APPEAL BY ONE PLAINTIFF AGAINST ANOTHER PLAINTIFF

As a general rule, one plaintiff cannot file an appeal against a co-plaintiff. But where the
matter in controversy in the suit forms subject-matter of dispute between plaintiffs inter se, an
appeal can be filed by one plaintiff against another plaintiff.28

APPEAL BY ONE DEFENDANT AGAINST ANOTHER DEFENDANT

The principle which applies to filing of appeal by one plaintiff against another plaintiff
equally applies to an appeal by one defendant against another defendant. It is only where the
dispute is not only between plaintiffs and the defendants but between defendants inter se and
such decision adversely affects one defendant against the other that such appeal would be
competent.17
WHO CANNOT APPEAL?

The right of appeal is lost by following means:

1. By Waiver.

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.18 Such an agreement must be
clear and unambiguous. Whether a party has or has not waived his right of appeal depends
upon the facts and circumstances of each case.19

2. By Acceptance of Benefits.

Similarly, where a party has accepted the benefits under a decree of the court, he can be
stopped from questioning the legality of the decree.20

As Scrutton, L.J.21 observed, “It startles me that a person can say that 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 a judgment as being good and then appeal against it as being
bad.”

3. By Abolition of forum to which Appeal lies.

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

18 Ameer Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC).
19 Protap Chunder v. Arathoon, ILR (1882) 8 Cal 455.
20 Dexters Ltd. v. Hill Crest Oil Co., (1926) 1 KB 348.
21 Ibid.
 Page|9

Finally, the vested right of appeal is destroyed if the court to which an appeal lies is abolished
altogether without any forum being substituted in its place.22

AGREEMENT NOT TO APPEAL

A right of appeal is a statutory right. If a statute does not confer such right, no appeal can be
filed even with the consent or agreement between the parties.

But an agreement between the parties not to file an appeal is valid if it is based on lawful or
legal consideration and if otherwise it is not illegal.23

APPEAL AGAINST EX PARTE DECREE: SECTION 96(2)

The defendant, against whom an ex parte decree has been passed, has the following remedies
available to him:

1- Apply to the court by which such decree is passed to set it aside: Order 9
Rule ; or
2- Prefer an appeal against such decree: Section 96(2) (or to file a revision under
Section 115 where no appeal lies);
3- Apply for review: Order 47 Rule 1; or
4- File a suit on the ground of fraud.

The above remedies are concurrent and they can be prosecuted simultaneously or
concurrently.

In an appeal against an ex parte decree, the appellate court is competent to go into the
question of the propriety of the ex parte decree passed by the trial court.
NO APPEAL AGAINST CONSENT DECREE: SECTION 96(3)

Section 96(3) declares that no appeal shall lie against a consent decree. This provision is
based on the broad principle of estoppel. It presupposes that the parties to an action can,
expressly or impliedly, waive or forgo 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.

Once the decree is shown to have been passed with the consent of the parties, Section 96(3)
becomes operative and binds them. It creates an estoppel between the parties as a judgment

22 Daji Saheb v. Shankar Rao, AIR 1956 SC 29.

23 Ameer Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC).
 P a g e | 10

on contest.24 Where there is a partial compromise and adjustment of a suit and a decree is
passed in accordance with it, the decree to that extent is a consent decree and is not
appealable. This provision, however, does not apply where the factum of compromise is in
dispute or the compromise decree is challenged on the ground that such compromise had not
been arrived at lawfully.25

NO APPEAL IN PETTY CASES: SECTION 96(4)

It has been inserted by the Amendment Act of 1976. It bars appeals except on points of law in
certain cases. Prior to 1976, Section 96 allowed a first appeal against every decree. Now, this
sub-section bars appeals on facts from decrees passed in petty suits where the amount or
value of the subject-matter of the original suit does not exceed ten thousand rupees, if the
suits in which such decrees are passed are of the nature cognizable by the Courts of Small
Causes.

The underlying object in enacting the said provision is to reduce appeals in petty cases. Such
restrictions are necessary in the interest of the litigants themselves. They should not be
encouraged to appeal on facts in trivial cases.

APPEAL AGAINST PRELIMINARY DECREE

An appeal lies against a preliminary decree. A preliminary decree is as much a final decree.
In fact, a final decree is but machinery for the implementation of a preliminary decree. 26
Failure to appeal against a preliminary decree, hence, preludes the aggrieved party from
challenging the final decree. Where an appeal is filed against a preliminary decree and is
allowed and the decree is set aside, the final decree falls to the ground as ineffective since
there is no preliminary decree to support the final decree.

NO APPEAL AGAINST FINAL DECREE WHERE NO APPEAL AGAINST PRELIMINARY DECREE

In suits which contemplate the making of two decrees: a preliminary decree and a final
decree, the decree which would be executable would be the final decree. But the finality of a
decree or a decision does not necessarily depend upon it being executable. The legislature in
its wisdom has thought that suits of certain types should be decided in stages and though the
suit in such cases can be regarded as fully and completely decided only after a final decree is

24 Thakur Prasad v. Bhagwan Das, AIR 1985 MP 171.

25 Banwari Lal v. Chando Devi, (1993) 1 SCC 581.
26 Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992.
 P a g e | 11

made, the decision of the court arrived at the earlier stage also has a finality attached to it.
Section 97 of CPC reads as follows:

97. Appeal from final decree where no appeal from preliminary decree
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 with may be preferred from the final decree.

It is now clear that where a party aggrieved by a preliminary decree does not appeal from it, it
is precluded from disputing its correctness in any appeal which may be preferred from the
final decree. This provision thus clearly indicates that as to the matters covered by it, a
preliminary decree is regarded as embodying the final decision of the court passing that
decree.27

APPEAL AGAINST JUDGMENT AND FINDINGS

The Code provides an appeal from a decree and not from a judgment. An aggrieved party,
however, may file an appeal against the judgment, if a decree is not drawn up by the court.
But no appeal lies in case of a finding recorded by the court in case such appeal does not
amount to a decree or an appealable order.

APPEAL AGAINST DEAD PERSON

No appeal can be instituted against a dead person. In such cases, an application can be made
praying for the substitution of the legal representatives of the deceased respondent who died
prior to the filing of the appeal. In that case, the appeal can be taken to have been filed on the
date of the application for substitution of the legal representatives. If, by that time, the appeal
is time-barred, the appellant can seek condonation of delay.28

LIMITATION

CPC confers a right of appeal, but does not prescribe a period of limitation for filing an
appeal. The limitation Act, 1963, provides the period for filing appeals. It states that an
appeal against a decree or order can be filed in a High Court within 90 days and in any other
court within 30 days from the date of the decree or order appealed against.29

27 Kaushalya Devi v. Baijnath Sayal, AIR 1961 SC 790.

28 Bank of Commerce Ltd. v. Protap Chandra Ghose, AIR 1946 FC 13.
29 Art. 116, Limitation Act, 1963.
45
O. 22 R. 11.
 P a g e | 12

CONCLUSION

After the above discussion regarding the first appeal from original decree we can conclude
that, custom appeal has not been defined in the code of civil procedure 1908. However privy
council and other courts give general definition that appeal is a proceeding instituted by the
aggrieved party either to set a side or reverse the decision of the trial court.

Section 96 which deals with the first appeal from original decree has expressly mentioned
that appeal can only lie through a decree not a judgement. Even and appeal can lie against ex
parte decree. But section 96 bars any appeal against the consensual decree.
It is clear from above discussion that appeal is a statutory right and it is available to an
aggrieved party only if any statute give it.

Order 41 of code of civil procedure deals with the procedure of filing of first appeal weather
in lower appellate court or High court. Therefore at last we can say that no human is perfect
even a judge can make mistake and appeal is the correction process and remedial concept
incorporated in the Code of Civil Procedure, 1908.

REFERENCE

BOOKS REFERRED:

1. C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh
edition, 2013.
 P a g e | 13

2. Mulla, “The Code of Civil Procedure”, LexisNexis, Gurgaon, 14th edition, 2010.

WEB LINKS REFERRED:

1. http://www.academia.edu/6004824/Vijeth_CPC_Appeals_under_Civil_Procedure.

2. http://www.legalserviceindia.com/article/l63-Appeals.