Appeal is a vested right and accrues to the litigant and exists as on and from the

date the lis commences and although it may be actually exercised when the adverse
judgment is pronounced. The right of appeal 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.27
This vested right can be taken away only by a subsequent enactment if it so
provides expressly or by necessary implication, and not otherwise.
Appeals from a decree
An appeal lies under section 96 CPC only from a decree because the decree marks
the stage at which the jurisdiction of the court which the appeal is made begins. As
such unless a decree is drawn up, no appeal lies from a mere finding, but if the
finding amount to a decree, an appeal would lie.
First Appeal : (Sections 96 – 99-A, 107 and Order XLI)
Appeal from Original Decree:

S. 96 of the Code provides as:

1. Save where otherwise expressly provided in the body of this Code or by any
other law for the time being in force, an appeal shall lie from every decree passed
by any Court exercising original jurisdiction to the Court authorized. to hear
appeals from the decision of such Court.
2. An appeal may le 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: The following persons are entitled to prefer an appeal :
1. A party to the suit who is adversely affected by the decree {Section 96(1)}, or
his legal representative. (Section 146)
2. A person claiming under a title party to the suit or a transferee of interests of
such party, who, so far as interest is concerned, is bound by the decree, provided
his name is entered on the record of the suit. (Section 146)
3. Guardian ad litem appointed by the Court in a suit by or against a minor.
(Section 147, Order 32, Rule 5)
4. Any other person, with the leave of the Court, if he is adversely affected by the
decree.
An appeal may lie against an ex- parte decree {S- 96(2)}and no appeal shall lie
from a decree passed with consent of parties {S- 96(3)}. The provision of S-96(3)
is based upon principle of Estoppels. Once the decree is shown to have been passed
with the consent of parties, Section 96(3) becomes operative and binds them. It
creates and Estoppels between the parties as a judgment on consent. There shall be
no appeal in petty cases as provided in Section 96(4) and an appeal lies against
preliminary decree as in the case of all decrees, unless a final decree has been
passed before the date of filing an appeal, but there shall be no appeal against final
decree when there was no appeal against preliminary decree. In fact, final decree
owes its existence to the preliminary decree. Conditions before filing an appeal: An
appeal can be filed against every decree passed by any Court in exercise of original
jurisdiction upon the satisfaction of the following two conditions:
i) The subject matter of the appeal must be a "decree", and
ii) The party appealing must. have been adversely affected by such determination.
Person otherwise competent to file appeal
Following persons are also competent to file an appeal:
(i) legal representatives of the party after such persons have been impleaded as
party,
(ii) Transferee of the interest of party,
(iii) Any person claiming under a party
(iv) Any person represented by a party
(v) A benamidar on behalf of a real owner,
(vi) A guardian on behalf of a minor
(vii) Government (Federal or Provincial)

Appeal against interlocutory order

An appellate court does not have the benefit of the evidence which has to be
recorded in the suit under appeal and as it does not have such benefit, it cannot
give a conclusive finding on any issue which turns on evidence and it should also
not given such a finding because if it did so, it would prejudice the trial court’s
appreciation of evidence.
Jurisdiction of Appellate court
The appellate court has got the jurisdiction to adjudicate upon a matter only if there
is either an appeal pending or cross-objections field by the respondents. The court
could not suo motu interfere with the judgment of the trial judge which was subject
to its appellate jurisdiction. Any order so passed is without jurisdiction and hence a
nullity. The objection on this ground can be taken at any time and in any
proceedings.

Decisions in Appeal under section 98

All decisions in an appeal shall be made by the majority and if no majority is
established which necessary to alter or reverse the decree appealed from, then the
decree shall stand confirmed. It is the right of the first appellate court to come to a
conclusion different from that of trial court on re-appraisal of evidence.

(i) Reference to other judges where no majority

When a court consisting of more than two judges and an appeal is heard by its
bench of two judges and they differ on a point of law, they may refer that point to
the other judges of the same court and then the matter shall be decided according to
the majority, including judges who refer that matter.

Effect of irregularity under section 99

Decision which is correct on merits, and within the jurisdiction of the court making
it, should not be set-up by an appeal, merely on the grounds of technical or
immaterial defects i.e. mis-joinder of parties etc.

Order XLI - Appeal from Original Decrees.

Form of Appeal: Rule 1 to 4:
Memorandum of Appeal: Contains the grounds on which the judicial examination
is invited. In order that an appeal may be validly presented, the following
requirements must be compiled with:
a. It must be in the form of me