APPEALS

“A single right to appeal is a universal requirement. Appeal is continuation of a suit”

Any person aggrieved by any Decree or the order passed by a court may choose to appeal in a
superior court in an appeal is provided against that decree or order or the person may make
an application for the review or the revision of the decree or the order such passed.

Appeal: Meaning

The code of civil procedure does not define the word “appeal”, dictionaries define the term as
judicial examination of decision by a higher court of the decision of an inferior court 1,
furthermore as the learned author RK Banghia explains that the meaning of the term can be
boiled down to consider that an appeal is a proceeding through which the defeated party
approaches a higher authority or court to have the decision of a lower authority or court reversed.

As explained by Sir Dinsha Mulla in the case of Nagendra Nath Dey v. Suresh Chandra Dey2 -

“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”.

Thus, the meaning of the term appeal could also interpret as a complaint made to a superior court
that the decree or the order passed by the court is erroneous or wrong or mistaken 3 Further the
court in Attorney general v. Sillem 4 explained that appeal is the right of entering a superior court
and invoking its aid and interposition to review and correct the error made by the court below.

As explained by Louis Blom5 every appeal has three basic elements-

1
Chamber’s 21st century Dictionary (1997) at p.59.
2
Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165
3
Shankar Ramachandra Abhyankar v. Krishnaji Datttreya bapat, (1969) 2 SCC 74.
4
Attorney general v. Sillem, (1864) 10 HLC 704
5
Louis Blom, “Final appeal: A study of the house of lords in its judicial capacity”.
a) a decision (judgment of a court or decision or ruling of an administrative authority);
b) a person aggrieved (who is often, a party to the original proceeding) 
c) a reviewing agency that is willing and ready to hear appeals.

Right of appeal 

As explained by the court in Ganga Bai v. Vijay Kumar6 the right to appeal is not an natural or
intrinsic right rather it is well understood that an appeal is a contractual body and there does not
exists pertaining to right to appeal until it is offered by a statute explicitly and expressly
furthermore the act cannot be said to be ultra viring if it does not provides for the right to appeal.
Thus, sometimes the appeal is a right that is if it is guaranteed under a statute but some times it
depends upon the discretion of the court to which such appeal lies. In cases where appeal is not
provided by the statute itself the person may apply to the court to grant a leave to file an appeal.
However, the Supreme court in Garikapati Veeraya v. N. Subbiah Chaudhry7 explained that the
right of appeal is a substantive right and not merely a matter of procedure and that this This
vested right of appeal can be taken away only by a subsequent enactment if it so provides
expressly or by necessary implication, and not otherwise at last in Anant Mills Co. Ltd. v. State
of Gujarat8 the apex court highlighted that -

"It is wellsettled 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”.

One right to appeal

6
Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393
7
Garikapati Veeraya v. N. Subbiah Chaudhry, AIR 1957 SC 540
8
As correctly noted by the court in Mona Panwar v. High court of judicature Allahabad9, there
has been no judge that has committed no wrong, thus A single right of appeal is more or less a
universal requirement. The 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.

Who may appeal?

1) A party to the suit aggrieved or adversely affected by the decree or his/her legal
representatives to the original proceeding
2) any person claiming under such party or a transferee of interests of such party who is bound
by the decree, provided that his name is entered on the record of the suit.
3) any person appointed by the court as the legal guardian of a minor and, ultimately, any other
aggrieved person after taking leave of the court.

As has been observed in the case of Krishna v. Mohesh10, "the question who may appeal is
determinable by the commonsense consideration that there can be no appeal where there is
nothing to appeal about". The ordinary rule is that an appeal can be filed only by a party to a suit
adversely affected by the decree or any of its representatives in the interest   However, with the
leave of the court, a person who is not a party to a decree or order can prefer an appeal against
such decree or order. which he is either bound or aggrieved by it or is maliciously influenced by
it. The test of whether a party is an aggrieved party would be to see if he has a legitimate case
that a judgment has been made that affects his rights either financially or otherwise unjustly. A
judgment cannot be said to adversely impact a party unless in any future litigation it will act as
res judicata against him.   The content of the judgment and decree must be evaluated in order to
decide whether a judgement will act as res judicata and will consequently adversely affect a
party, and not the form, Section 96(2) specifies remedies which are available to the defendant
against whom an ex parte order is passed. One is to file an appeal against such a decree and
another is that they can also file a motion for an ex parte decree to be set aside. The remedies are

9
Mona Panwar v. High court of judicature Allahabad, 2011 3 SCC 496
10
Krishna v. Mohesh (1905) 9 CWN 584 at p. 588.
both simultaneous and can be resorted to concurrently. One should not deter the other. Section
96(3) states that a consent decree cannot be appealed against. This provision is based on the
broad principle of estoppel. It presupposes that, by any lawful agreement or settlement or even
by behavior, the parties to a suit may, expressly or implicitly, forfeit or abandon their right of
appeal. The consideration for a consent decree concerning the agreement is that both parties gave
up their right to appeal.

Who may not appeal?

a) A party that has given up its right to appeal in compliance with an arrangement which is
explicit and unambiguous.
b) A party who has benefited from the incentives derived from a decree.
c) Parties with a consent decree
d) Parties whose evidence or compromises are or have not been expressed in a dispute.
e) Parties involved in trivial instances.
f) There shall be no legal representatives allowed file an appeal against a deceased
individual.

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.
A second appeal lies in the High Court and such an appeal is maintainable only on a substantial
question of law alone. A second appeal can also lie against an ex parte decree. No appeal cart be
filed on a question of fact, question of law, or mixed question of fact and law. There is no second
appeal in a money decree, where the amount does not exceed twenty-five thousand rupees. The
High Court should formulate a substantial question of law while admitting an appeal. In certain
circumstances, a High Court can also decide an issue of fact.

Appeals from original decrees

As per Section 96

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 the Court authorized to hear appeals from the decisions of such Court.

2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(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 Cause, when the amount or value of the subject-matter of the
original suit does not exceed three thousand rupees.

As per section 96(1) of the code right to appeal is recognized for the decree passed by the court
exercising the original jurisdiction, however nothing has been mentioned, who may file an appeal
but before an appeal can be filed, two important conditions must be satisfied as per this section

a) The first, that the subject matter of the appeal must be a decree, i.e, a conclusive
determination of the right of the parties with respect to the all or any of the matter in controversy
in the suit; and

b) The party appealing must be adversely affected by the decision of the decree.
Now, the second condition merely state that the party filing the appeal should be adversely
affected by the decision of the decree, however it is silent about that can a person who is not the
party to the suit so decided come up with an appeal if he/she is adversely affected by the decision
of the suit.

The answer of the question was given in the case State of Punjab V. Amar Singh11. What is
material as per the section is that one who is adversely affected by the judgment may appeal the
judgment in the higher court. And hence there lies no doubt with respect to the person adversely
affected and are parties to the suit. As far as the person who is not the party to the suit may
appeal if he/she is adversely affected. What adversely affected mean; a decision cannot be said to
be adversely affect a person unless it will operate as res judicata against him in any future suit.

Based on the above discussion, the following principle may be considered to determine who may
appeal:

1. A party to the suit who is aggrieved and adversely affected by the decree, or if such party is
dead, his legal representative,

2. A person claiming under a party to the suit or a transferee of the interest of such party, who so
far as the interest is concerned, is bound by the decree, provided his name is entered on the
record of the suit.

3. A guardian ad litem appointed by the court in a suit by or against a minor.

4. Any other person, with the leave of the court, if he is adversely affected by the decree.

However, if a party agrees not to appeal or waives his right to appeal by entering into an
agreement, provided the agreement is valid otherwise. Whether a party has waived his right of
appeal depends upon the facts and circumstances of each case. Further, it is very important to
understand that by availing the benefit of the decree party submit himself to the decree and later
he cannot question the legality of the decree.

11
In Dexters Ltd. V. Hill Crest Oil Co12. Scrutton, L.J. observed: “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 the judgment as being good and then
appeal against it as being bad.”

Further in Deji saheb V. Shankar Rao 13 it was held that the vested rights of appeal is destroyed
if the court to which an appeal lies is abolished together without any forum being substituted in
its place.

Section 96(2): Appeal against ex-parte decree: An appeal against ex parte decree may lie in the
superior court, wherein the superior court may look into the question of propriety or otherwise of
the ex-parte decree passed by the trial court.

Section 96(3): No Appeal against Consent Decree: This section recognizes the principle of
estoppel, it proposes 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 side give up their right to appeal.
This principle of estoppel is recognized for partial compromise decree as well, that is if a decree
is reached on a partial compromise this principle will be applicable for that portion of the decree
however, this provision is not applicable when very factum of the compromise is disputed and
even in a situation when the compromise decree is challenged on the ground that it had not ben
arrived on the lawful ground.

FORM OF APPEALS:

Memorandum of appeals:

Memorandum of appeals contains the grounds on which judicial examination is invited. To see
the applicability of the rules of the court and to judge the limitation, it is essential that
memorandum of appeals to be filed.
12
Dexters Ltd. V. Hill Crest Oil Co. (1926) 1 KB 348.
13
Deji saheb V. Shankar Rao, AIR 1956 SC 29 (30).
Order 41, Rule (1) & judgment laid down in Jagat Dhish V. Jawahar Lale14 explain that in order
for an appeal to be said validly represented, the following requirements must be complied with

1) It must be in the form of memorandum setting forth the grounds of the objections to the
decree appealed from;
2) It must be signed by the appellant or his pleader.
3) It must be presented to the court or to such official as it appoints in that behalf.
4) Memorandum must be accompanied by the certified copy of the decree.
5) It must be accompanied by certified copy of the judgment unless the court dispenses with it;
6) Where the appeal is against the money decree, the appellant must deposit the decrial amount
or furnish the security in respect thereof as per the direction of the court.

So, memorandum of appeal must contain the ground of objection concisely without any
argument in support thereof. In appeal, only those grounds can be set forth which have already
been included in adversely decreed suit. However, it never means that no new ground can be
taken by the appellate court. As per Rule 2 of order 41, appellant can come up with a new
ground in appeal provided the leave for same has been granted by the court.

As a general rule, the appellate court is to check the validity of the decree passed by the trial
court on the ground set forth in the suit and the evidence adduced thereby however in
exceptional situation wherein the party could not come up with the ground or evidence at the
trial stage because of lack of knowledge and circumstantial situation. Then in such a situation
the court may grant the leave to include the new grounds as well as the evidence.

Rule 4 of Order 41 provide for the situation when one or more than one but not all the appellant
prefer to appeal against the adverse decree. There may be two situations, first if the order
coming out of an appeal is of such a nature that it can be implemented against the person who
appealed without changing the very basis of the earlier decision, then it will be applicable to the
person who prefer appeal else it will be applicable to all the aggrieved party irrespective of the
fact whether they appealed or not.

14
Jagat Dhish V. Jawahar Lal , AIR 1961 SC 832
 In other words, it is because if the said decree coming out of an appeal is not applied to all the
aggrieved party there will be two different decrees for the aggrieved parties and hence the very
basis of the conclusiveness of the decision will not be reached which will be detrimental for the
public to have faith in the judicial system.

Forum of appeal

As already been discussed that the party may have right to appeal as granted by the statues but it
never means that they have right to choose the forum also. As said by Supreme Court in
Gopalkrishna v. Meenakshi15 the right to appeal is undoubtedly a substantive right and its
deprivation is a serious prejudice. But there are no vested rights in procedure. Hence, no one can
claim that one’s appeal should be heard by a particular court. Change in forum of appeal,
therefore, cannot be said to cause prejudice to a party.

Presentation of appeal: Rules 9 & 10 Rule 9 as amended by the amendment act 1999, it is the
court from whose decree an appeal is preferred shall entertain the memorandum of appeal, shall
make an endorsement and shall register the appeal in the register of appeal. However, this
provision brings very vague, ambiguous, and unclear situation. What if an appellate court
receive an appeal which has not been endorsed by the trial court or how to deal with a situation
when the trial court are not endorsing the application within reasonable time. These are the few
question that has not been properly taken care of by the amendment. Earlier when an appeal was
preferred the same was being communicated to the trial court but with deletion of rule 13, now
there is no specific or express position regarding the transmission of record by to the trial courts.

Limitation: The code does not prescribe for the period of limitation for the filing of appeal.
However, Limitation Act 1963 provides for the period of appeal, and it says the appeal may lie
in the High Court within 90 days and in any other appellate Court within 30 days from the date
of decree.

15
Gopalkrishna v. Meenakshi, AIR 1967 SC 155