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First appeal cpc - cpc notes

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Table of Contents
 Introduction
 Meaning of appeal
 Essentials of appealing cases
 Right to appeal
 One right to appeal
 No right to appeal
 Distinction between suit and appeal
 Garikapati Veeraya v. Subbiah Chaudhary
 The distinction between appeal and revision
 First appeal
 Second appeal
 Conversion of an appeal into revision
 Who may appeal?
o Appeal by one plaintiff against another plaintiff
o Appeal by one defendant against another defendant
 Who cannot appeal?
 The appeal against ex parte decree
 No appeal against consent decree
 No appeal in petty cases
 The appeal against Preliminary Decree
 No appeal against a finding
 The appeal against a dead person
 Forms of appeal
 Forum of appeal
 Presentation of appeal
 Summary dismissal
 Doctrine of merger
 Cross objections
 Powers of Appellate Court
 Duties of an appellate court
 Judgment
 Decree
 Letters patent appeal
 Appeal to SC
 Conclusion
 References

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

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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

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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 proceedings in a case already constituted
law, it is known as a suit. but does not create a cause.

A suit is an attempt to achieve an end via

As per Dayawati v. Inderjit, it is the
a legal procedure instituted in a Court of
continuation of a suit in certain situations.
law for 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.

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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

An appeal lies to a Superior Court from every
only in those cases and against such
original decree unless expressly barred.
orders 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 exercised suo motu as well.
and 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.

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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.

The High Court or the revisional Court

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

Click above

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

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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.

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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.

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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

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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;

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 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.

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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

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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

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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.

Frequently Asked Questions

1. Discuss the provision in CPC relating to appeals

from original decree.

The expression ‘appeal’ has not been defined in the code but it may be defined as ‘Judicial
examination of the decision of an inferior court. It is thus a remedy provided by law for getting
the decree of the lower court set aside.

The provisions relating to First Appeal are provided in section 96 and rules governing appeals
from original decrees are mentioned in Order 41.

2. Discuss the provision of first appeal and IInd appeal

and the distinction and the distinction between the
two.

A) First Appeal lies to a superior court from a decree passed by a court exercising original
jurisdiction. Whereas, second appeal lies only in the High Court from a decree passed by a court
exercising appellate jurisdiction.

B) First appeal can be filed on question of fact or law whereas Second appeal can be filed where
it involves substantial question of law.

C) The period of limitation for First Appeal is 90 days in case such an appeal lies to High Court
and 30 days for other court and Second appeal within 90 days only to high court.

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3. Discuss in detail with relevant provisions the

powers of the appellate court to reverse/dismiss the
judgment and decree of courts.

Rule 11 deals with the power of the appellate court to summarily dismiss an appeal. This rule
embodies a general principle that whenever an appeal is preferred, the appellate court is entitled
to reject the appeal summarily, after hearing the appellant, if no prima facie substance exists.
Where an appeal raises triable, it should not summarily dismiss the suit. A case on this aspect
is Mahadev Tukaram v. Smt Sugandha.[35]In this case, a will was executed by an old man of 80
years. Although he was literate, the will bore his thumb impression and not his signature. No
other document bearing his thumb impression was produced to support the reason that thumb
impression was taken because his hand was shaky. Out of the six attesting witnesses, only two
were examined. The evidence of the doctor was also not convincing. The trial court held the will
as genuine and the matter on appeal to the High Court was dismissed summarily. On second
appeal the court held that the High Court was not justified in dismissing the appeal summarily,
since the first appeal had triable issues.

Rule 16 says that the appellant has the right to begin, just like in the case of an original suit
wherein the plaintiff has the right to begin. If the appeal is not dismissed summarily, then the
court shall hear the respondent against the appeal and the appellant then be entitled to reply.

4. Unless a right of appeal is clearly given by a

statute, it does not exist. Explain the provisions
relating to 1st appeal?

From any decree passed by any court exercising original jurisdiction, first appeal lies to the court
authorized to hear appeals from the decision of such court unless otherwise has been expressly
provided either under the Code or by any other law for the time being in force. Sections 96 to 99-
A. 107 to 108 and Order 41 of the Code of Civil Procedure deal with appeals from original
decrees which are known as first appeal

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5. Discuss the provisions of second appeal as

contained in section 100 of C.P.C along with the latest
amendments in section 100 of C.P.C?

Save as otherwise, expressly provided by the code or by any other law, an appeal shall lie to the
High Court from every decree passed in appeal by any subordinate court, where the court is
satisfied that a substantial question of law is concerned.

An appeal may lie under this section from an appellate decree passed ex-parte.

The memorandum of appeal shall precisely state the substantial question of law involved in the
appeal.

Where the high court is satisfied that a substantial question of law is involved, it shall formulate
the question. The appeal shall be heard on the question so formulated and the respondent, at the
hearing be allowed to argue that the case does not involve such question.

6. Where and on what grounds a second appeal lies?

Same as Ans. 7.

7. What is the procedure for grant of stay when an

appeal is filed from a decree?

Rule 5 provides for the stay of execution of decree or order. After an appeal has been filed, the
appellate court may order stay of proceedings under the decree or execution of such decree. But
mere filing of an appeal does not suspend the operation of the decree; the following grounds must
be satisfied before the court may grant a stay :

1. the application has been made without any unreasonable delay,

2. substantial loss will result to the applicant unless such order is made, and

3. security for the due performance of the decree or order has been given by the applicant.

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