CODE OF CIVIL PROCEDURE, 1908

Section 96 - Appeal from original decree

ANNOTATION

Amendments Code of Civil Procedure

The Code of Civil Procedure
(Amendment) Act, 1976
inserted sub-section (4) to
the section.
The Code of Civil Procedure
(Amendment) Act, 1999
substituted "ten thousand
rupees" for "three thousand
rupees".
Effective Date
Code of Civil Procedure
(Amendment) Act, 1976
w.e.f. 1st February, 1977
(Amendment) Act, 1999
w.e.f. 1st July, 2002
Reference/ Relevance within
Statute
Section 2(2) (Decree)
Sections 100 to 103 (Appeals
from Appellate decrees)
Section 107 (Powers of
Appellate Court)
Order 41 (Appeals from
original decrees)
Order 42 (Appeals from
Appellate decrees)

Case Cited

1. Smt. Ganga Bai v. Vijay Kumar MANU/SC/0020/1974: AIR 1974 SC 1126; State of Gujarat v.
Vishnu Automobiles MANU/GJ/0228/1998: AIR 1999 Guj 92; Pratap Narain Agarwal v. Ragho Prasad
MANU/UP/0002/1970: AIR 1970 All 15.

2. M. Ramnarain Private Limited v. State Trading Corporation of India Limited AIR 1983 SC 786; P.
Mohammed Meera Lebbai v. Thirumalaya Gounder Ramaswamy Gounder MANU/SC/0013/1965: AIR
1966 SC 430.

3. M. Ram Narain Pvt. Ltd. v. State Trading Corpn., MANU/SC/0017/1983: AIR 1983 SC 786.

4. Garikapatti v. N. Subbaiah Chowdhury, MANU/SC/0008/1957: AIR 1957 SC 540.

5. Mr. Gurram Seetharam Reddy v. Gunti Yashoda MANU/AP/0611/2004: AIR 2005 AP 95.

6. Mable v. Dolores MANU/KE/0210/2001: AIR 2001 Ker 353.

7. Bhikhabhai Haribhai Patel (Decd.) through his Heirs v. Parshottambhai Zaverbhai Patel (Decd.)
through his Heirs MANU/GJ/0143/2001: AIR 2001 Guj 246.

8. Rekha Mukherjee v. Ashis Kumar Das MANU/SC/0172/2005: AIR 2005 SC 1944.

9. Madhukar v. Sangram, MANU/SC/0302/2001: AIR 2001 SC 2171.

10. Vijai Nath v. Damodar Das Chela Shiv Mangal Das MANU/UP/0023/1971: AIR 1971 All 109.

11. Konakalla Venkata Satyanarayana (Died) v. State Bank of India MANU/AP/0092/1975: AIR 1975
AP 113.

12. State of U. P. v. Phota, MANU/UP/0047/1991: AIR 1991 All 229.

13. Deputy Collector, Northern Sub-Division, Panaji v. Comunidale of Bambolin,

MANU/SC/0037/1996: AIR 1996 SC 148.

14. Sawarni v. Inder Kaur, MANU/SC/0730/1996: AIR 1996 SC 2823.

15. Narayana Prabhu v. Janadhana Mallan, MANU/SC/0878/1996: AIR 1996 SC 3276: 1996 AIR SCW
2335.

16. Garikapatti Veeraya v. N. Subbiah Choudhury MANU/SC/0008/1957: AIR 1957 SC 540.

Page 482

17. Devi Theatre v. Vishwanath Raju MANU/SC/0411/2004 : (2004) 7 SCC 337, B.P. Agarwal v.
Dhanalakshmi Bank Ltd. MANU/SC/7009/2008 : AIR 2008 SC 1431.

18. Ramachandran Potti v. Thankam MANU/KE/0219/2004: AIR 2004 Ker 323.

19. Krishna Chandra v. Mohesh, 9 C. W. N. 584; Sadhu Ram v. Mohammad Ali MANU/HP/0008/1950:
AIR 1950 HP 30; Baldev Singh v. Surinder Mohan Sharma MANU/SC/0900/2002: AIR 2003 SC 225.

20. Nirmal Bala v. Balai Chand, MANU/SC/0346/1965: AIR 1965 SC 1874.

21. Baldev Singh v. Surinder Mohan Sharma MANU/SC/0900/2002 : AIR 2003 SC 225.

22. State v. Amar Singh, MANU/SC/0351/1974: AIR 1974 SC 994; Jatan v. Golcha Properties,
MANU/SC/0041/1970: AIR 1971 SC 374.

23. New Okhla Industrial Development Authority (NOIDA) Dist. Ghaziabad v. Ram Bal
MANU/UP/0016/1991: AIR 1991 All 68.

24. Balkrishna Das Agarwal v. Smt. Radha Devi MANU/MH/0228/1976: AIR 1989 All 133.

25. Fakir Mohamed Abdul Razak v. The Charity Commissioner, Bombay MANU/MH/0228/1976: AIR
1976 Bom 304.

26. Phoolchand v. Gopal Lal MANU/SC/0284/1967: AIR 1967 SC 1470; Smt. Jatan Kanwar Golcha v.
Golcha Properties (P) Ltd. MANU/SC/0041/1970: AIR 1971 SC 374; Smt. Ganga Bai v. Vijay Kumar
MANU/SC/0020/19744 : AIR 1974 SC 1126; Banarsi v. Ram Phal MANU/SC/0147/2003: AIR 2003 SC
1989.

27. State of U.P. v. Smt. Ram Sri MANU/UP/0030/1976: AIR 1976 All 121; Gul Mohd. v. Samar
Jahan MANU/DE/0278/1982 : AIR 1983 Delhi 90.

28. Baldev Singh v. Surinder Mohan Sharma, MANU/SC/0900/2002: AIR 2003 SC 225.

29. Adi Phirozshah Gandhi v. H. M. Seervai, MANU/SC/0044/1970: AIR 1971 SC 385.

30. Annapoorani Ammal v. Ramaswamy, MANU/TN/0062/1990: AIR 1990 Mad 361.

31. Ramachandran Potti v. Thankam MANU/KE/0219/2004: AIR 2004 Ker 323.

32. Secretary of State v. Swaminatha Kaundan 37 Mad. 25, 12 I. C. 167; Sadhu Ram v. Mohammad
Ali MANU/HP/0008/1950: AIR 1950 HP 30.

33. Arjun v. Tara Das, MANU/BH/0001/1974: AIR 1974 Patna 1 (FB); Ganga v. Vijai, AIR 1974 SC
1126.

34. Sagarmal Agarwalla v. Smt. Annapurna Neogi MANU/BH/0084/1964: AIR 1964 Pat 298; Smt.
Ganga Bai v. Vijay Kumar MANU/SC/0020/1974: AIR 1974 SC 1126; Banarsi Sah v. Bhagwanlal Sah
MANU/BH/0051/1977: AIR 1977 Pat 206.

35. P.D. Palakattumala Devaswom, represented by the Secy. Travancore Devaswom Board v.
Ulahannan Pylee, Kanjirakkuzhiyil Alapuram MANU/KE/0007/1970: AIR 1970 Ker 30; Bai Lalita v.
Shardaben MANU/GJ/0081/1970: AIR 1970 Guj 37.

36. Bhagabat Sit v. Balaram Sit MANU/OR/0025/1963: AIR 1963 Ori 61.

37. Darayas Bamanshah Medhora v. Nariman Bamansha Medhora MANU/GJ/0036/2002: AIR 2002
Guj 166.

38. Jhaharmal Panda v. B. P. Kedia, AIR 1990 Gau 35.

39. M/s. Mangi Lal Rungta v. Manganese Ore Ltd., AIR 1987 Bom 87 : 1987 MHLj 383.

40. Maya Devi v. M. G. Dal Mill, MANU/PH/0186/1988: AIR 1988 P&H 176.

41. Bank of India v. Mehta Brothers, AIR 1991 SC 194.

42. Pushpa Devi Bhagat v. Rajinder Singh MANU/SC/3016/2006 : AIR 2006 SC 2628.
 43. Lagandeo Singh v. Satyadeo Singh MANU/BH/0030/1992: AIR 1992 Pat 153.

44. K. C. Dora v. Guntreddi Annamanaidu MANU/SC/0336/1973 : (1974) 1 SCC 567; Krishna

Khetarpal v. Satish Lal AIR 1987 P&H 191.

45. Kewal Krishan v. Shiv Kumar MANU/PH/0023/1970: AIR 1970 P&H 176.

46. Katikara C. Dora v. Guntareddi, MANU/SC/0336/1973: AIR 1974 SC 1069.

47. Krishna Khetarpal v. Satish Lal MANU/PH/0117/1987: AIR 1987 P&H 191.

48. Kishun v. Bihari MANU/SC/0464/2005 : AIR 2005 SC 3799.

49. Mathura Singh v. Deodhari Singh, MANU/BH/0006/1972: AIR 1972 Patna 17; Lagandeo Singh v.
Satyadeo Singh AIR 1992 Pat 153.

50. Raksha Rani v. Ram Lal MANU/PH/0135/1987: AIR 1987 P&H 60.

51. Thakur v. Bhagwan Das, AIR 1985 MP 171; Kaushalya v. Basal, MANU/SC/0308/1968: AIR 1970
SC 838.

52. Banwari Lal v. Smt. Chando Devi (through L.R.) MANU/SC/0152/1993: AIR 1993 SC 1139.

53. Smt. Kamla Devi v. Rajendra Pal Singh MANU/UP/0088/1972: AIR 1972 All 338.

54. Lagandeo Singh v. Satyadeo Singh MANU/BH/0030/1992: AIR 1992 Pat 153; Deorao v.
Devkinandan Bhojaj Chandak (1984) 86 BOMLR 264.

55. Kishun @ Ram Kishun (Dead) through LRs. v. Bihari (D) by LRs. MANU/SC/0464/2005: AIR 2005
SC 3799; Mathura v. Deodhari MANU/BH/0006/1972: AIR 1972 Pat 17; Lagandeo Singh v. Satyadeo
Singh MANU/BH/0030/1992: AIR 1992 Pat 153.

56. Katikara Chintamani Dora v. Guntreddi Annamanaidu MANU/SC/0336/1973: AIR 1974 SC 1069.

57. Suvarn Amma v. B. Mukunda, MANU/KA/0109/1979: AIR 1979 Kant 150.

58. P. K. Ramchandran v. State of Kerala, MANU/SC/1296/1997: AIR 1998 SC 2276 (2277).

SYNOPSIS

1. Amendment 6. Appeal against ex parte

.................................. 484
2. Scope and object
......................... 484
3. Who can prefer appeal
............... 486
4. Forum of appeal
.......................... 487
5. Appeal against decree or
Judgment ..... 488
decree ...............488
7. Compromise or consent
decree ............. 489
8. Appeal against costs
.................. 490
9. Limitation etc
............................... 490
10. Cross references
........................ 491

1. Amendments.

Sub-section (4) added to Section 96 vide (Act No. 104 of 1976) and amended by Code of Civil
Procedure (Amendment) Act, 1999, provides that no appeal shall lie against a decree passed by
Court of Small Causes if the value of the subject-matter in suit does not exceed ten thousand rupees
except on the question of law.

2. Scope and object.

Under Section 96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the
Code or by any other law for the time being in force, an appeal lies from every decree passed by any
court exercising original jurisdiction, to the court authorised to hear appeals from the decisions of
such court (Smt. Ganga Bai v. Vijay Kumar; State of Gujarat v. Vishnu Automobiles; Pratap Narain
Agarwal v. Ragho Prasad).1 This section read with Order 41 of the Code makes it abundantly clear
that an appeal will lie from an original decree (M. Ramnarain Private Limited v. State Trading
Corporation of India Limited; P. Mohammed Meera Lebbai v. Thirumalaya Gounder Ramaswamy
Gounder).2 In fact appeal is a complaint to superior Court regarding injustice done or error
committed by the lower Court with a view to its reversal or correction.

Right of appeal is essentially a creature of statute and is not an inherent right. A right to appeal
cannot be inferred by implication (M. Ram Narain Pvt. Ltd. v. State

Trading Corpn.).3 Once a statute confers a right to appeal it becomes a vested right and litigant has
a right to knock the doors of Appellate Court. It can be taken away only by subsequent enactment
(Garikapatti v. N. Subbaiah Chowdhury).4 Every original decree and Order mentioned appealable in
Order XLIII, Rule 1 are appealable except the consent decrees.

Section 96 does not enumerate the types of decrees that can fall into its fold. Once the outcome of
adjudication partakes the character of a decree, it gains an entry into the realm of Section 96 (Mr.
Gurram Seetharam Reddy v. Gunti Yashoda).5 Rejection of a plaint under Order VII Rule 11(c) of the
Code is a decree as defined in Section 2(2) of the Code of Civil Procedure and it is hence appealable
under Section 96 of the Code (Mable v. Dolores).6 This section or other provisions of the Code does
not prohibit the appeal on the ground that the question of nullity can be raised in execution and get
the same decided (Bhikhabhai Haribhai Patel (Decd.) through his Heirs v. Parshottambhai Zaverbhai
Patel (Decd.) through his Heirs).7

An appeal preferred in terms of Section 96 Code of Civil Procedure must conform to the requirements
contained in Order 41 thereof. An appeal at the time of its filing would either be maintainable or
would not be (Rekha Mukherjee v. Ashis Kumar Das).8

As the right to appeal is not a mere matter of procedure but a substantive right. First appeal is a
valuable right and the parties have a right to be heard both on questions of law and on facts; the
Judgment in first appeal must address itself to all the issues of law and fact and decide it by giving
reasons in support of the findings (Madhukar v. Sangram).9 This section enjoins upon an Appellate
court to hear the appeal and to arrive at its own conclusion about the controversy raised in the suit.
The Appellate court is not bound by the findings recorded by the trial court in the same manner as a
second Appellate court is bound by the findings of fact recorded by a lower Appellate Court. It is well
established that an appeal is continuation of the suit and the Appellate court has got to reassess the
evidence produced in the case. It would therefore be incorrect to say that lower Appellate court
commits an error of law if it reassesses the oral evidence and comes to a conclusion different from
that of the trial court (Vijai Nath v. Damodar Das Chela Shiv Mangal Das).10

Where a Defendant has relinquished part of a claim, then under Section 96 of Code of Civil
Procedure, 1908 that part of claim not raised in suit by Defendant cannot be raised in appeal
(Konakalla Venkata Satyanarayana (Died) v. State Bank of India).11

Part VII of the Code consisting of Sections 96 to 112 deals with the right of appeal. But for minor
exception generally one appeal always lies and it does not matter whether it is on facts or law except
in case decree passed by Court of Small Causes. Second appeal from the Courts subordinate to the
High Court, lies in High Court on the substantial questions of law. There is fixed period of limitation
for filing appeals and an appeal filed beyond time is not maintainable unless the appellant gets the
delay condoned (State of U. P. v. Phota).12 If appeal is entertained under Section 96 of Code of Civil
Procedure read with Section 54 of the Land Acquisition Act and the State is acting through its counsel
who was in two minds whether the appeal should be pursued under the Portuguese Code or under
Code of Civil Procedure which stood extended to Goa, Daman and Diu on September 15, 1966, by
which date a decree was passed by the Reference Court, obviously the proceedings should be treated
to have been pursued under

Code of Civil Procedure (Deputy Collector, Northern Sub-Division, Panaji v. Comunidale of

Bambolin).13

Where trial Court and Appellate Court after considering entire evidence on record has given well
reasoned finding of fact on the point of ownership in favour of Plaintiff, the finding should not be
disturbed even if the mutation in the record was entered in the name of Defendant (Sawarni v. Inder
 Kaur).14 Also, where there is definite finding of trial Court, Appellate Court cannot ignore it on the
ground that there was no pleading on the point (Narayana Prabhu v. Janadhana Mallan).15 Valuation
as amended by Code of Civil Procedure (Amendment) Act, 1999, in sub-section (4) does not affect
pending appeals.

The rights of appeal conferred by Sections 96 and 100, Code of Civil Procedure, are different in their
quality and contents. Then again, under Sections 109 and 110, Code of Civil Procedure, a further
appeal is provided against decision of the High Court to this Court subject again to certain conditions.
This is a right different in its character from the right of appeal conferred by Section 96 or Section
100 (Garikapatti Veeraya v. N. Subbiah Choudhury).16

The court while considering the question of admission of appeal filed under Section 96 Code of Civil
Procedure, may admit the appeal if considered fit for full hearing having prima facie merit.
Otherwise, if it finds that the appeal lacks merits, it may be dismissed at the initial stage itself. But
admission of the appeal, subject to condition of deposit of some given amount, is not envisaged in
the provision as contained under Section 96 read with Order 41 Rule 11 Code of Civil Procedure. The
deposit of the money would obviously have no connection with the merits of the case, which alone
would be the basis for admitting or not admitting an appeal filed under Section 96 Code of Civil
Procedure. Further, imposition of condition that failure to deposit the amount would result in
dismissal of the appeal compounds the infirmity in the order of conditional admission (Devi Theatre
v. Vishwanath Raju; B.P. Agarwal v. Dhanalakshmi Bank Ltd.).17

3. Who can prefer appeal?

A reading of Section 96 of the Code of Civil Procedure shows that that Section does not enumerate
the persons who can file an appeal under that Section. A party to a decree can straight away file an
appeal challenging the decree (Ramachandran Potti v. Thankam).18 An appeal may be preferred by
any party to the suit adversely affected by the decree (Krishna Chandra v. Mohesh; Sadhu Ram v.
Mohammad Ali; Baldev Singh v. Surinder Mohan Sharma).19 In other words a person directly
aggrieved by the adjudication may file an appeal (Nirmal Bala v. Balai Chand).20 Thus there is no
dispute that such an appeal, however, would be maintainable only at the instance of a person
aggrieved by and dissatisfied with the judgment and decree (Baldev Singh v. Surinder Mohan
Sharma AIR 2003 SC 225).21

It is also a recognised principle of law that a person who was not party to suit may also prefer an
appeal provided he shows to the Appellate Court that he is directly and prejudicially affected by the
Judgment and takes leave of the Court on that ground (State v. Amar Singh; Jatan v. Golcha
Properties).22 What he is required to demonstrate is that he would suffer by the Judgment impugned
by means of the appeal. To file an appeal under Section 96, one is not required to establish that he
was a party in the proceedings in which the Judgment was pronounced or given against him (New
Okhla

Industrial Development Authority (NOIDA) Dist. Ghaziabad v. Ram Bal).23 A party who would benefit
from change in the Judgment, therefore, would have an appealable interest (Balkrishna Das Agarwal
v. Smt. Radha Devi).24 Even an auction purchaser may appeal (Fakir Mohamed Abdul Razak v. The
Charity Commissioner, Bombay).25 Unless a person is prejudicially or adversely affected by the
decree he is not entitled to file an appeal. No appeal lies against a mere finding. It is significant to
note that both Sections 96 and 100 of the Code of Civil Procedure provide for an appeal against
decree and not against Judgment (Phoolchand v. Gopal Lal; Smt. Jatan Kanwar Golcha v. Golcha
Properties (P) Ltd.; Smt. Ganga Bai v. Vijay Kumar; Banarsi v. Ram Phal).26

A party, therefore, who would benefit from the change in the Judgment has an appealable interest.
This interest, of course, should not be contingent speculative or futuritive. It must be substantial,
immediate and pecuniary. Such an interest must have invaded legal rights of the person filing an
appeal. It is, therefore, clear that an aggrieved party is one who is injuriously affected by the
Judgment or whose rights are directly affected by the operation of the same (State of U.P. v. Smt.
Ram Sri; Gul Mohd. v. Samar Jahan).27

Thus a person aggrieved to file an appeal must be one whose right is affected by the Judgment
(Baldev Singh v. Surinder Mohan Sharma).28 A person is said to be aggrieved by an Order or decree
when it directly operates upon his personal, pecuniary or proprietary interest. Merely getting
disappointed does not give rise to right to appeal (Adi Phirozshah Gandhi v. H. M. Seervai).29 Where
 a Plaintiff is refused the decree of specific performance of agreement but allowed alternative relief of
refund of amount of consideration paid, he is directly aggrieved person and has a right to file the
appeal (Annapoorani Ammal v. Ramaswamy).30

The question whether a party is adversely affected or not is a question of fact to be determined in
each case according to its particular circumstances. If a party can successfully show that he will be
benefited from the change in the Judgment or decree, it can be said that he is having an appealable
interest; but that interest must be substantial, immediate and pecuniary. The aggrieved person must
have a legal grievance also (Ramachandran Potti v. Thankam).31 Thus in case the Plaintiff's claim is
decreed in its entirety, but one of the issues is found against him, the Plaintiff cannot appeal against
the finding of that issue, for his claim has been decreed in full (Secretary of State v. Swaminatha
Kaundan; Sadhu Ram v. Mohammad Ali).32 However where certain finding in the Judgment has gone
against the aggrieved party, such party shall have a right to prefer an appeal provided the adverse
finding is such which if allowed to stay would operate as res judicata against him in subsequent suit
or proceedings (Arjun v. Tara Das; Ganga v. Vijai).33 However, Simply because there is an adverse
finding against the Defendant on one point, a plea of res judicata cannot be founded on that decision,
because the Defendant having succeeded on other pleas, he has no occasion to go further as to the
finding recorded against him (Sagarmal Agarwalla v. Smt. Annapurna Neogi; Smt. Ganga Bai v. Vijay
Kumar; Banarsi Sah v. Bhagwanlal Sah).34

4. Forum of appeal

The forum for a first appeal is specified not by Section 96 of the Code which only says that the
appeal shall lie to the court authorised to hear appeals from the decisions of the court which passed
the decree, but by the concerned Civil Courts Act And, under those Acts, the value of the subject-
matter would determine whether an appeal from a decision of a Subordinate Judge lies to the District
Court or to the High Court. Thus an appeal from an award under Land Acquisition Act shall only lie to
the High Court (P.D. Palakattumala Devaswom, represented by the Secy. Travancore Devaswom
Board v. Ulahannan Pylee, Kanjirakkuzhiyil Alapuram; Bai Lalita v. Shardaben).35

5. Appeal against Decree or Judgment.

Question before the court was "Does an appeal lie against the Judgment or the decree?" Section 96
Code of Civil Procedure makes it clear that save where otherwise expressly provided in the body of
this Code or by any law for the time being in force, an appeal shall lie from every decree passed by
any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions
of such Court. There can be absolutely no doubt that an appeal lies only from a decree and not from
a Judgment. Until a decree is formally drawn up in terms of the Judgment there can be neither
appeal nor execution (Bhagabat Sit v. Balaram Sit).36

The short substance of the distinction is that the Judgment constitutes the opinion of the Court,
wherein it encompasses the pleadings of the parties, the issues, the evidence led by the respective
parties, the interplay of different pieces of evidence upon each other, the conclusions drawn and the
findings of fact recorded by the Court. In short, the Judgment reflects merely the justification of the
Court for passing the decree in question. On the other hand, the decree is the crystallisation of the
rights in controversy between the parties, as declared by the Court, on the basis of the Judgment.
Consequently, a Judgment and a decree are not phrases or concepts which can be used in the
alternative to each other, neither do the two concepts overlap each other. It is precisely for this
reason that Section 96 of Code of Civil Procedure contemplates an appeal only from a decree, and by
necessary implication, not from a Judgment (Darayas Bamanshah Medhora v. Nariman Bamansha
Medhora).37

6. Appeal against ex parte decree.

Sub-section (2) of Section 96 clearly provides that an appeal may lie from an original decree passed
ex parte (Jhaharmal Panda v. B. P. Kedia).38 Where a Defendant sought to set aside the ex parte
decree under Order IX, Rule 13 of the Code and that application has been rejected after hearing the
parties and Defendant did not prefer any appeal against the said Order, he cannot raise the issue of
sufficient ground of absence in the regular appeal preferred under Section 96 against the ex parte
decree, (M/s. Mangi Lal Rungta v. Manganese Ore Ltd.)39 but the Judgment under appeal can be
challenged on the ground of jurisdiction, limitation or erroneous finding etc. (Maya Devi v. M. G. Dal
Mill).40 When an ex parte decree is passed against un-contesting Defendants and dismissed against
contesting Defendants the Plaintiff too has a right to appeal, but where the Plaintiff has sued the two
sets in alternative and Plaintiff himself is in doubt which of the Defendants are liable to satisfy the
 claim, the Plaintiff is not entitled to appeal against the ex parte decree passed against some of the
Defendants. However, if the liability is alleged to be joint and several the appeal is maintainable
(Bank of India v. Mehta Brothers).41

7. Compromise or consent decree.

Section 96 provides for appeals from original decrees. Sub-section (3) of Section 96, however,
provided that no appeal shall lie from a decree passed by the court with the consent of the parties
(Pushpa Devi Bhagat v. Rajinder Singh).42 Sub-section (3) of Section 96 is really an exception to
Sub-section (1). The legislature instead of introducing a proviso in Sub-section (1) has introduced
separate Sub-section, that is, Subsection (3). The expression used in Sub-section (3) of Section 96 is
that "no appeal shall lie from a decree passed by the court with the consent of the parties." In
Subsection (3) the legislature has not used the expression 'decree passed by the Court on the basis
of the compromise petition; rather, the expression used is 'decree passed with consent of the
parties'. By subsection (3) vested right of appeal has been curtailed in certain circumstances.
Therefore, the provision taking away such a vested right has to be const rued very strictly (Lagandeo
Singh v. Satyadeo Singh).43 The parties do justice to themselves by consent and the Court puts a
seal thereon, as if the decision is of its own. It is for this reason that the Legislature in its wisdom
considered it advisable not to provide a re-hearing of the matter, for else appeal is in our processual
law nothing but that (K. C. Dora v. Guntreddi Annamanaidu; Krishna Khetarpal v. Satish Lal).44

The rule enunciated in this sub-section seems to have been based on the principle that a person, who
gives his consent to a decree being passed against him, is later on estopped from challenging the
same. Disputes between parties are either settled on the merits or on their consent. If the latter
course is adopted then the parties are not allowed to challenge the decrees passed with their
consent. In Order to attract the provisions of this sub-section, it is, however, necessary that the
decree ex facie must show that it was passed with the consent of both the parties to the suit. If that
is not done, there is likelihood of a controversy arising before the Appellate Court as to whether the
decree passed by the Court below was with the consent of the parties or not, and for that purpose
the appellant Court may have to either itself decide or ask the Court below to determine that matter
after taking evidence. With a view to obviate this difficulty, it is, therefore, required that the decree
under appeal itself must show that both the parties had agreed to it (Kewal Krishan v. Shiv
Kumar).45 The sub-section (3) is based on the principle of estoppel by conduct (Katikara C. Dora v.
Guntareddi).46 It presupposes that the parties to an action can, expressly or by implication, waive or
forgo their right of appeal, by any lawful agreement or compromise or even by conduct (Krishna
Khetarpal v. Satish Lal).47 However, when one of the parties sets up a compromise and the other
disputes it and the court is forced to adjudicate on whether there was a compromise or not and to
pass a decree, it could not be understood as a decree passed by the court with the consent of parties
(Kishun v. Bihari).48

Consent decree always means a decree arrived at between the parties with the consent of all persons
concerned. Where a decree is passed partly on compromise, partly on consent and partly ex parte,
such a decree is not a consent decree (Mathura Singh v. Deodhari Singh; Lagandeo Singh v.
Satyadeo Singh).49 Sub-section (3) of this section is categorical in its terms. It lays down in
unambiguous words that no appeal shall lie from a decree passed by the Court with the consent of
the parties. Even when the trial Court erroneously passes a consent decree which is not strictly on
the basis of a compromise arrived at between the parties it remains a consent decree and is not
appealable. The error if any crept in at the instance of the Court passing the decree can be corrected
by a competent Court in its revisional jurisdiction, but one thing is clear that in view of Section 96(3)
of the Code no appeal can be filed against that decree (Raksha Rani v. Ram Lal).50

But appeal does not lie where the compromise is not a lawful compromise (Thakur v. Bhagwan Das;
Kaushalya v. Basal).51 When Section 96(3) bars an appeal against decree passed with the consent of
parties, it implies that such decree is valid and binding on the parties unless set aside by the
procedure prescribed or available to the parties (Banwari Lal v. Smt. Chando Devi (through L.R.
Jaswant Chand v. G.V. Films Ltd.)).52 It does not apply to cases where no decree could be passed on
the basis of consent (Smt. Kamla Devi v. Rajendra Pal Singh).53

In cases where it was disputed as to whether the agreement was made or not; in other words, if
according to one party the agreement was entered into whereas according to the other, the
agreement was not entered into, the very factum of the agreement becomes disputed and in that
event, it cannot be said that the decree was passed with consent of the parties as they agreed to
suffer consent decree. It would further appear that for operating the bar, the compromise or
 agreement must be lawful. It thus becomes clear that bar put by Sub-section (3) could not operate
where factum of consent is disputed and/or its legality is doubted (Lagandeo Singh v. Satyadeo
Singh; Deorao v. Devkinandan Bhojaj Chandak).54 If all the parties were not involved in the
compromise, those who were not party to compromise have a right to appeal against the consent
decree (Kishun @ Ram Kishun (Dead) through LRs. v. Bihari (D) by LRs.; Mathura v. Deodhari;
Lagandeo Singh v. Satyadeo Singh).55

Where a compromise is only for a part of relief claimed in suit, the parties will have no right to appeal
only to the extent it was a consent decree. The bar to an appeal against a consent decree, in Sub-
section (3) of Section 96 of the Code is based on the broad principle of estoppel. It presupposes that
the parties to an action can, expressly or by implication, waive or forego their right of appeal by any
lawful agreement or compromise, or even by conduct. Therefore, as soon as the parties made the
agreement to abide by the determination in the appeal and induced the court to pass a decree in
terms of that agreement, the principle of estoppel underlying 1. 96(3) became operative and the
decree to the extent it was in terms of that agreement, became final and binding between the
parties. And it was as effective in creating an estoppel between the parties as a Judgment on contest
(Katikara Chintamani Dora v. Guntreddi Annamanaidu).56

8. Appeal against costs.

A party aggrieved by awarding or not awarding the costs may prefer appeal only when discretion is
not exercised by the lower Court judicially (Suvarn Amma v. B. Mukunda).57 However, where
discretion is properly exercised and reasons given as to costs are sufficient decree, need not be
interfered in appeal.

9. Limitation etc.

Limitation prescribed for filing appeal before a High Court is ninety days and for one before any other
Court is thirty days (see Article 116 of Schedule of Limitation Act. Where there is delay in filing
appeal explanation for condonation of delay must be offered to the satisfaction of the Appellate Court
(P. K. Ramchandran v. State of Kerala).58

10. Cross references.

Powers of Appellate Courts--Section 107 and Order XLI, Rules 4 and 33 of the Code. Procedure
regarding appeal--Order XLI. Appeal by Indigent person--Order XLIV. Second Appeals--Sections 100
to 103 and Order XLII. And appeal against Orders Order XLIII of the Code.

The Code of Civil Procedure, 1908

By Anupam Srivastava
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