The types of appeal under the CPC with reference to relevant provisions

along with limitation as well as analysis whether one type of appeal can be

converted into another

(Project)

Course: Civil Procedure

Code II
Sir Tanveer Iqbal
Submitted to:
Khan
Submitted by: Um-ul-Baneen
Natasha Irshad
Urfa Mushtaq
Madiha Rashid
Mehreen Shabir
Ayiena Yaqoob
Fehmida Kanwal

LLB -VIII (2017-

Semester:
2022)
Spring
Date of Submission: 31,May,2021

Department of Law
Fatima Jinnah Women University, Rawalpind

1
Table of Contents

Introduction 1
BASIC PRINCIPLES PERTAINING TO APPEAL 1

KINDS OF APPEAL 2

DISTINCTION BETWEEN SUIT AND APPEAL 2

THE DISTINCTION BETWEEN APPEAL AND REVISION 3

THE DISTINCTION BETWEEN SECOND APPEAL AND REVISION 4

1st APPEAL OR APPEAL AFTER ORIGINAL DECREE 5

7.1. FORUM OF APPEAL 5

7.2. PERSON WHO MAY APPEAL 5

7.3. PERSON OTHERWISE COMPETENT TO FILE APPEAL 5

7.4. APPEAL AGAINST INTERLOCUTORY ORDER 6

7.5. JURISDICTION OF APPELLATE COURT 6

7.6. DECISIONS IN APPEAL UNDER SECTION 98 6

7.7. REFERENCE TO OTHER JUDGES WHERE NO MAJORITY 6

7.8 EFFECT OF IRREGULARITY UNDER SECTION 99 7

8. APPEALS FROM ORDERS 7

OTHER ORDERS 8

RIGHT OF APPEAL TO THE SUPREME COURT 8

10.1. PRELIMINARY DECREE 9

10.2. SUBSTANTIAL QUESTION OF LAW 9

10.3. FINAL ORDER 10

10.4. DECREE OR FINAL ORDER PASSED BY HIGH COURT 11

10.5 CERTIFICATE AS TO FITNESS 11

11. APPEALS FROM APPELLATE DECREES: 11

1
 11.1. Grounds for Second Appeal 12

11.2. Interference barred in Second Appeal 12

11.3. Allowing Revision to be treated as second appeal 13

11.4. Restrictions or urging irrelevant grounds 14

11.5 Raising Fresh Pleas 14

11.6. Dismissal of Appeal for default 14

11.7. Cases where second appeal is barred 14

11.8. Powers of High Court to determine issues of fact 15

11.9. ORDER WITH SUITS BY INDIGENT PERSONS. 15

12. WHETHER ONE TYPE OF APPEAL CAN BE CONVERTED INTO

ANOTHER? 16

13. CONCLUSION 17

14. BIBLIOGRAPHY 19
 ABSTRACT:

The right of appeal is a substantive right, and it is a matter inter parties. The question

as to whether the appeal is competent or not can only be decided by the court hearing the appeal.

The right of appeal is available only against the order passed in exercise of the constitutional

jurisdiction, under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973,

or original civil jurisdiction conferred by any law. Once an order is passed by the single bench,

the dissatisfied party has a right to approach the division bench of the high court where the

entire controversy is meticulously re-examined at a minimal cost. Appeal may be filed against

original or appellate decree passed by a court subordinate to High Court. Appeal only lies

against a decree and not against Judgment. The right of appeal is a creation of statute. Appeals

are recognized as statutory rights of persons aggrieved by any decision of an inferior court in

the interest of justice. So, 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.

 INTRODUCTION

An appeal is a hearing of the matter by a superior courts and the appellate court is vested with

powers to pass any order that the trial court could have pass. It is the continuation of the

proceedings before the higher forum for testing the soundness for decision of the lower court.

Appeal is a statutory right, which would only be exercised if the statute provided so as a matter

of right. The word appeal has not been defined in the Code it has been held to mean the removal

of the cause from an inferior to a superior court for testing the soundness of the decision of the

inferior courts. It is thus the remedy provided by the law for getting the decree of the lower

court cancelled and is in fact a complaint made to higher court that the decree of the lower

court is unsound and wrong.1

It is pertinent here to mention that an appeal is not a fresh suit but the continuation of

the original proceedings and the stage in the suit itself. Any application by a party to an

Appellate court asking it to set aside or revise the decision of the subordinate court is an appeal

within the ordinary acceptance of the term. 2

BASIC PRINCIPLES PERTAINING TO APPEAL

I. The statutory right of appeal confers the right of rehearing the whole dispute unless

expressly restricted in scope and the appellate court is not confined to the reasons,

which have been given by the subordinate courts or grounds for its decision.

II. The original proceedings will remain binding upon the parties until it is superseded by

the order of a superior court and the presentation of an appeal merely renders the matter

sub judice once again.

1
Ameer Raza And Ibrahim Haroon, The Code Of Civil Procedure,282-287 (12th Ed,2019).
2
Muhammad Mazhar Hassan Nizami, The Code Of Civil Procedure With Commentary ,283-310 (17th
ed,2019).

1
III. The filing of an appeal does not prevent the execution of the decree appealed against

nor extend any time limit set down in the judgment.

IV. An appellate court always have a power to grant interim relief by suspending wholly or

partially the judgment appealed against.

V. It is necessary that the specified claim be made in grounds of appeal. Party to appeal

can support any judgment or decree on any ground, which might have been decided by

the trial court against him but cannot challenge it without filing appeal.

VI. The value of the suit that is amount of the subject matter thereof determines the forum

of suit that is the court in which the suit is to be filed, it also determines the forum of

appeal that is the court to which the appeal lies.3

KINDS OF APPEAL

The CPC 1908 provides four kinds of appeal:

I. Appeal from original decrees

II. Appeal from appealable decrees

III. Appeal from orders

IV. Appeal to Supreme Court.4

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 but

it is known as a suit. does not create a cause.

3
Id.
4
The Civil Procedure Code, No V of 1908, PAK.CODE.CIV. PROC.
A suit is an attempt to achieve an end via a It is the continuation of a suit in certain

legal procedure instituted in a Court of law situations.

for enforcing one’s right/claim.

A suit is filed in the lowest Court in its An appeal is filed in an Appellate Court for

respective hierarchy for trial. the purposes of reviewing the decision of

the inferior Court.5

THE DISTINCTION BETWEEN APPEAL AND REVISION

Appeal Revision

An appeal lies to a Superior Court from every A revision to High Court is available only in

original decree unless expressly barred. those cases and against such orders where no

appeal lies.

A right of appeal is one of substantive nature There is no such right of revision because

conferred by the statute revisional power is purely discretionary.

An appellate jurisdiction can be exercised The revisional jurisdiction can be exercised

only through a memorandum of appeal filed suo motu as well.6

before the Appellate Court by the aggrieved

party and cannot be exercised suo motu.

5
Id at 1.
6
Id at 1.
 THE DISTINCTION BETWEEN SECOND APPEAL AND REVISION

Second Appeal Revision

The second appeal lies under section Revision is defined under section 115.

100,103,108 and order 42.

The second appeal lies when the case Revision lies when there is a jurisdiction

involves a substantial question of law. error.

In the second appeal, the High Court can However, in revision, the High Court cannot

decide questions of fact in various situations. decide the question of Fact.

The second Appeal lies only in the High The revisional power of the High Court can

Court. be invoked in cases where no appeal lies in

the High Court.

The High Court has the power to interfere in In revision, the High Court cannot interfere

the second appeal if it is not legal. with the judgment of the subordinate court

even if it is not legal.

An application for appeal is maintainable on An application for revision is maintainable

legal grants as well as on question of fact. on the ground of jurisdictional error.

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.7

7
Id at 1.
 1st APPEAL OR APPEAL AFTER ORIGINAL 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 where the appeal is made begins. As such unless a decree is

drawn up, no appeal lies from a mere finding, but if the finding amounts to a decree, an appeal

would lie. Generally, first appeal shall lie from every decree passed by any court exercising

original jurisdiction to the court authorised to hear appeal from the decisions of such court.8

7.1. FORUM OF APPEAL

First appeal lies to the District court, if the value of the subject matter of the suit is below Rs.

Two lakhs, and to the high court in all other cases.9

7.2. PERSON WHO MAY APPEAL

Only such persons, who are party to the suit, or who are adversely affected by the decree may

appeal; Stranger to suit or proceedings is not prohibited by CPC 1908 from filing an appeal

against an order whereby he was aggrieved.10

7.3. 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).11

8
Id.
9
Id.
10
Id.
11
Id.
7.4. 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.12

7.5. 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 filed 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.13

7.6. DECISIONS IN APPEAL UNDER SECTION 98

All decisions in an appeal shall be made by the majority and if no majority is established which

is 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 a trial

court on re-appraisal of evidence.14

7.7. 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.15

12
Id.
13
Id at 1.
14
Id at 2.
15
Id.
 7.8 EFFECT OF IRREGULARITY UNDER SECTION 99

Decisions which are 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.16

8. APPEALS FROM ORDERS

Section 104 to 108 and Order 43 of the Civil Procedure Code deals with the appeals against

orders. They state that certain orders are appealable and other orders are not appealable. But it

is possible to attack such orders in an appeal against the final decree. These sections also

provide the forum for an appeal. Order can be defined as "the formal expression of any decision

of a civil court which is not a decree" Therefore, an adjudication by a court that does not come

under a "decree" is an "order". An appeal of an order can be filed within ninety days before the

High Court and within thirty days from the date of the order, before another court. Section 106

states that appeals against orders in cases in which they are appealable shall be brought before

the court to where an appeal would lie from the original suit. 17

Some of the instances of appealable orders are:

i. An order awarding compensatory costs in respect of false or vexatious claims or

defense.

ii. An order refusing leave to institute a suit against public nuisance.

iii. An order rejecting an application to set aside the dismissal of a suit for default.

iv. An order rejecting an application to set aside an ex parte decree.

v. An order dismissing a suit or striking out defense for non- compliance with an order for

discovery.

vi. An order granting or refusing to grant interim injunction.

16
Id.
17
Mariya pallwala, Iplesders, dec 12 (2019) https://blog.ipleaders.in/appeal-from-orders/
vii. An order refusing to restore an appeal dismissed for default of appearance by appellant.

viii. An order refusing to reheard an appeal heard ex parte.

ix. An order of remand.

x. An order granting an application for review.18

OTHER ORDERS

Section 105 enacts that every order whether appealable or not, except an order of remand, can

be attacked in an appeal from the final decree on the ground that there is an error, defect or

irregularity in the order and that such error, defect or irregularity affects the decision of the

case. The principle underlying Section 105 is that when an interlocutory order is appealable,

the party against whom such order is made is not bound to prefer an appeal against it. There is

no such law, which compels a party to appeal from every interlocutory order by which he may

feel affected. Section 105 makes it clear that an order appealable under Section 104 may be

questioned under this section in an appeal from the decree in the suit, even though no appeal

has been preferred against the interlocutory order. 19

RIGHT OF APPEAL TO THE SUPREME COURT

The right of appeal to the Supreme Court from a judgment, decree or a final order in a civil

proceeding is given by the Constitution.

When a special statute dealing with a special class of cases, uses with reference to the decision

given by a tribunal set up under that statute, the word final, the use of this word must be taken

to indicate an intention to override section 109 and no appeal would lie from that decision.20

18
The Civil Procedure Code, No V of 1908, PAK.CODE.CIV. PROC.
19
Ameer Raza And Ibrahim Haroon, The Code Of Civil Procedure,282-287 (12th Ed,2019).
20
Ameer Raza And Ibrahim Haroon, The Code Of Civil Procedure, (12 th Ed,2019).
 10.1. PRELIMINARY DECREE

An appeal would lie to the Supreme Court from a preliminary decree, e.g. a decree declaring

the liability of a party and the amount, or value of the subject-matter of the dispute in the Court

of first instance was also in appeal is fifty thousand rupees or upward and directing accounts

to be taken.21

10.2. SUBSTANTIAL QUESTION OF LAW

The term question of law is used in contradistinction to the term question of fact. Whether a

question of law is substantial or not, is dependent upon the facts of each case. For an appeal to

the Supreme Court, it is not enough that a question of law is involved, for it must, in addition,

be a substantial one. The question of law should be substantial as between the parties and not

merely a question of general importance. It should be a question on the determination of which

the decision of the case will turn. It has also been held to mean a question of general

importance.22

Some of the principles which will assist in determining whether a question of law is substantial

or not are:23

● Whether the question is one, regarding which there is divergence of opinion.

● Whether principles of law governing the determination of such questions are well

established

● An order made in the exercise of discretionary jurisdiction does not involve a

substantial question of law, unless the discretion has been exercised contrary to law, or

upon a misapprehension of facts.

21
Id.
22
Id.
23
Id.
 ● A matter raised for the first time at the hearing of the petition for leave to appeal cannot

be said to involve a substantial question of law.

10.3. FINAL ORDER

An order is final if it finally disposes of the rights of the parties. In a case, a stay order under

section 19 of the Arbitration Act had been reversed and the suit went back for trial. The

appellate Court had thought that the order was final as it went to the root of the suit, namely

the jurisdiction of the Court to entertain it and it was for this reason that the order was supposed

to be final. But it was not final for the rights of the parties were still under trial. A case of suit

for damages had been dismissed on a preliminary ground and the High Court on appeal

reversed the decree and remanded the suit for trial on the merits under O.XLI, R.23.

The Privy Council held that this was not a final order. The test has been laid down that “the

finality must be a finality in relation to the suit. If after the order, the suit is still a live suit in

which the rights of the parties have still to be determined, no appeal lies against it under section

109 (a). In a case, where the lower Court refused to set aside an ex parte decree and the High

Court remanded the suit for an inquiry on the merits, the Privy Council held that the order of

the High Court was not a final order but a purely interlocutory order directing procedure. An

order remanding a suit for decision on the merits is, therefore, not a final order.”

An order refusing to appoint a receiver in a suit is not a final order, and no appeal lies.

In a case where the High Court discharged an order made by the District Court appointing a

receiver and the High Court granted leave to appeal, the Privy Council observed that as a

general rule and in the absence of special circumstances, or some unusual occasion for its

exercise, the power of making interlocutory orders was one which was not a suitable subject

for review. 24

24
Id.
 10.4. DECREE OR FINAL ORDER PASSED BY HIGH COURT

A decree or final order passed by a High Court in its appellate jurisdiction is not necessarily a

decree or order passed on appeal. Therefore, when a decree of the High Court was varied and

directions were given for an account to be taken by the High Court, a decree passed by the

High Court in pursuance of such direction is not a decree passed on appeal from which appeal

lies. These rules apply to appeals to the Supreme Court.25

10.5 CERTIFICATE AS TO FITNESS

Leave to appeal to the Supreme Court may be granted in two conditions: first, when a case

fulfils the requirements of section 110, or second, when it is otherwise a fit case for appeal. In

either case a certificate has to be granted by the High Court, in the first case, a certificate to the

effect that the case fulfils the requirements of section 110 and is, therefore, a fit ease for appeal

to the Supreme Court and in the second case that for other reasons it is a fit case for appeal to

the Supreme Court.26

11. APPEALS FROM APPELLATE DECREES:

Generally, Second appeal lies to the High Court, from every decree passed in an appeal, by a

court subordinate to the High Court. It lies only on grounds mentioned in section 100 CPC but

not on the question of fact.27

25
Id.
26
Id
27
Appeals and its kinds under CPC, Law study.com,

http://thelawstudy.blogspot.com/2015/05/appeal-and-its-kinds-under-cpc.html#
 11.1. Grounds for Second Appeal

It is a settled proposition of law that second will lie where judgment is uncertain in its meaning

and finding is vague and inconclusive or where reasons are not given at all. Following are the

grounds where the second appeal is competent and not otherwise.28

(i) Decision being contrary to law

A decision contrary to law is open to interference in second appeal, and the decree may be

amended to bring it in conformity with legal requirements.

(ii) Decision being contrary to the usage having force of law

The expression usage having the force of law means a local or family usage, which is

distinguished from general law. A usage having the force of law should be ancient, invariable,

certain and reasonable.

(iii) Decision having failed to determine some material issue of law or usage having the

force of law

The failure to determine some material issue of law or usage having the force of law, by the

lower court, is a good ground for second appeal.

(iv) Substantial error or defect in procedure

Where there is a substantial error or defect in procedure, provided by CPC or by any other law

for the time being in force, which may possibly have produced error or defect in the decision

of the case upon merits, it can be a ground for second appeal.29

11.2. Interference barred in Second Appeal

(a) Finding of fact is not susceptible to interference in second appeal.

(b) Plea not raised either in written statement or even in appeal below, could not be taken up in

second appeal by the High Court.

28
Id.
29
Id.
(c) Delivery of possession is a question of fact and cannot be interfered with in a second appeal.

(d) Findings of fact by the first appellate court cannot be challenged in second appeal,

particularly when no erroneous approach to the case or findings of fact is shown to have been

made by the first appellate court.

(e) The question of adverse possession may not necessarily be a document, particularly revenue

record, is a question of law.

(f) Concurrent findings of fact by two lower courts cannot be challenged in a second appeal

even if it is erroneous or a different conclusion is possible.

(g) Where lower courts arrive at a finding of a fact after thoroughly perusing, assessing and

appreciating evidence the point cannot be reopened in a second appeal.30

11.3. Allowing Revision to be treated as second appeal

The High Court has allowed the revision to be treated as a second appeal. The only point in

issue is from what date this revision should be treated to be converted into a second appeal.

(a) from the date a misconceived civil revision petition was instituted.31

(b) from the date is request was made for its conversion or

(c) from the date it was allowed to be converted and registered as a second appeal

(9.4) Effect of Subsequent change of law on second appeal

If, according to law in force at the time of the filing of a suit, the ultimate decision of such an

action was open to appeal or to second appeal, the right to prefer an appeal there from is not

affected by subsequent change of law abolishing the appeal of modifying its form, unless it is

so provided expressly in the enacting statute or followed by necessary implication from its

terms.32

30
Id.
31
Id.
32
Id.
 11.4. Restrictions or urging irrelevant grounds

According to order 41 rule 2, no ground can be urged at the hearing of the appeal, which had

not been set forth in the memorandum of appeal.

11.5 Raising Fresh Pleas

Parties are bound by case, which arises on their pleadings, which have been inquired into, by

trial court. A plea, which should have been taken in trial court but was not taken, cannot be

raised for the first time in a second appeal.

It is for the parties to take up necessary pleas and have necessary issues framed in the trial

court. If they do not, they cannot ask the appellate court to remand the case for recasting of

issue and retrial on new pleas.

11.6. Dismissal of Appeal for default

Though a second appeal may lie from an appeal decree passed ex-parte, no second appeal lies

from an order dismissing an appeal for default, on the ground that such an order is not a decree.

11.7. Cases where second appeal is barred

Section 102 provides that no second appeal shall lie in the following suits

(a) Suit of a nature cognizable by court of small causes

A suit the value of which does not exceed Rs.25000 is a suit of a nature cognizable by courts

of small causes. It may be tried either by small-cause court or by a civil court, and in that case,

a second appeal is barred by section 102 of CPC.

(b) Suits where value does not exceed Rs. 25,0000

NO second appeal shall lie in any other suit, where the value of the subject nature of the original

suit does not exceed Rs. 2,50000.33

33
Id.
 11.8. Powers of High Court to determine issues of fact

In second appeal, the High Court may determine an issue of fact.

(i) Where there is sufficient evidence, on the record, for determining issue of fact, necessary

for the disposal the lower appellate court.

(ii) An issue of fact, necessary for the disposal of the case, has been wrongly determined by

the lower appellate court by reasons of any omission, error or defect as referred in section

100(I)(b) of CPC.34

11.9. ORDER WITH SUITS BY INDIGENT PERSONS.

Order 44 deals with appeals made by indigent persons. Any person entitled to file an appeal

who is unable to pay the court fee needed for the memorandum of appeal must file an appeal

followed by a memorandum of appeal and then the Court may permit him to appeal as an

indigent person. The present situation is that, on all the grounds applicable to an ordinary

citizen, an indigent person can also file an appeal. Also, an indigent individual can file cross-

objections.35

Rule 3 of Order 44 states that if the appellant has been permitted to sue in the trial court as an

indigent party, no further investigation is required if the appellant files an affidavit claiming

that he has not ceased to be an indigent person since the date of the appeal of the decree. The

officer of that court shall carry out where the appellant is said to have been an indigent person

after the date of the decree of appeal, the appellant’s inquiry by the appellate court or, on its

request. The question to be considered by the court at the point of hearing an appeal is whether

the applicant is an indigent citizen. 36

The appeal will be allowed, if he is indigent, and the memorandum of appeal will be registered.

If he is not indigent, the appeal would be denied. The period of limitation for presenting an

34
Seuba, X., Appeals. In the Global Regime for the Enforcement of Intellectual
35
Id.
36
Legal Service, Suits Barred under CPC: order by suit, January 12, 2018
application for leave to appeal as an indigent person is sixty days (High Court) and to other

courts it is thirty days. The limitation starts from the date the decree is appealed from. 37

12. WHETHER ONE TYPE OF APPEAL CAN BE CONVERTED

INTO ANOTHER?

First appeal lies against a decree passed by the court exercising original jurisdiction under

section 6 to 99A and order 41 of CPC. A second appeal lies against a decree passed by first

appellate court under section 100 to 103 and order 42 of CPC. The fist appellate can be admitted

on the grounds of question of fact as well as on question of law whereas the second appeal can

only be admitted only on the point of substantial question of law. The first appeal can be

entertained by a subordinate court, which may or may not be a High Court whereas the second

appeal can only be entertained by High Court.38

Lastly the memorandum of first appeal must set out the grounds of objection to decree appeal

from whereas in case of second appeal it needs not to set out the grounds of objection to decree

appealed from. Keeping in view these differences between first and second appeal it is clear

that these two are distinct from each other and are based on different criteria and stages

therefore these cannot be inter converted. Hence, one type of appeal cannot be changed into

another39

However, an appeal can be converted into revision petition and writ under rare

circumstances. In 1999 CLC 1768 it was held that conversion of a revision petition into a

constitutional petition upon request of the petitioner was declined by High Court in

circumstances of the case and in view of the fact that court fee required to be paid for

constitution petition has not been paid. Revisional petition was dismissed as not maintainable.

37
Ratikaattri, Order with suits, Oct 20, 2014, https://www.scribd.com/document/243623013/.
38
Act, Agra Pre-emption, Agra Tenancy Act, Arbitration Act, and Bar Councils Act. "Civil Procedure
Code (V of 1908) Company." (1914).
39
Saha, Amar Nath. "The code of civil procedure 1908." (1978).
Similarly, in 1991 CLC NOTE 101 AT P.82 the court held that constitution petition can be

converted into a revision or vice versa if it does not prejudice the right of any party and advance

cause of justice instead of frustrating the same. There is no limit and bar on high court to

convert a revision into a constitutional petition in exercise of its discretion.40

Similarly, in PLD 1987 SC 139, High Court exhibiting certain features which

demonstrated that it fell within the scope of interference as under section 115 CPC high Court

should in such cases, exercise its jurisdiction under said provision of Law-high Court, held,

should have allowed conversion of said second appeal into revision and then proceeded further.

One more area of concern is that the value of a suit that is the amount of value of subject matter

determines the forum of suit that is the court in which the suit is to be filed. It also determines

the forum of appeal that is the court to which the appeal lies. As types of appeals are different

from one another so the forum, fees and courts are also different due to which inter conversion

cannot take place. 41

As a rule, no appeal should lie from any order made by court in exercise of original or

appellate jurisdiction. Appeal lies only in those cases, which are expressly provided in the body

of code or by any other law of time being in force. Therefore, it’s obvious from the above

discussion that one type of appeal cannot be converted into another like fist appeal cannot be

converted into the second appeal due to the major differences in criteria of both but appeal can

be converted into revision and writ petitions under the provisions of CPC. 42

13. CONCLUSION

The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an

application or petition to appeal higher Court for are consideration of the decision of appeal

40
Seuba, X., Appeals. In the Global Regime for the Enforcement of Intellectual
41
Purrington, W. A. "A Far-Reaching Decision by the Court of Appeals." Bench & B. os 15 (1908): 53.
42
Id.
lower court. It is appeal proceeding for review to be carried out by appeal higher authority of

appeal decision given by appeal lower one. In appeal is appeal creature of statute and right to

appeal is neither an inherent nor a natural right. Appeal person aggrieved by appeal decree is

not entitled as or right to appeal from decree. The right to appeal must be given by statute.

Section 9 confers on appeal litigant, independently of any statute, appeal right to institute

appeal suit of civil nature in appeal court of law. So he has appeal right to apply for execution

of appeal decree passed in his favour, but he has no right to appeal from appeal decree or order

made against him, unless the right is clearly conferred by statute. Section 96 of the Code gives

appeal right to litigant to appeal from an original decree. Section 100 gives him appeal right to

appeal from an appellate decree in certain cases. Section 109 gives him right to appeal to the

Supreme Court in certain cases. Section 104 gives him right to appeal from orders as

distinguished from decrees. As soon as judgment is pronounced against party, right to appeal

arises. Right to appeal does not arise when adverse decision is given, but on the day suit is

instituted i.e. proceedings commenced, right to appeal get conferred. Thus, it can be said the

Right to appeal is appeal substantive right vested in parties from the date suit instituted.
14. BIBLIOGRAPHY

● Act, Agra Pre-emption, Agra Tenancy Act, Arbitration Act, and Bar Councils Act.

"Civil Procedure Code (V of 1908) Company." (1914).

● Ameer Raza and Ibrahim Haroon, The Code of Civil Procedure, 282-287 (12th Ed,

2019).

● http://thelawstudy.blogspot.com/2015/05/appeal-and-its-kinds-under-

cpc.html#:~:text=Appeals%20from%20a%20decree,decree%2C%20an%20appeal%2

0would%20lie.

● Muhammad Mazhar Hassan Nizami, The Code of Civil Procedure with Commentary,

283-310 (17th ed, 2019).

● Ameer Raza And Ibrahim Haroon, The Code Of Civil Procedure, (12th Ed,2019).
● Purrington, W. A. "A Far-Reaching Decision by the Court of Appeals." Bench & B. os

15 (1908): 53.

● Saha, Amar Nath. "The code of civil procedure 1908." (1978).

● The Civil Procedure Code, No V of 1908, PAK.CODE.CIV. PROC.