96. Appeal from original decree.

—(1) Save where otherwise expressly provided in the

body of this Code or by any other law for the time being in force, an appeal shall lie from every
decree passed by any Court exercising original jurisdiction to the Court authorised 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.
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[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the
nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter
of the original suit does not exceed [ten] 177 thousand rupees.]

CASE LAW ► Right of appeal: Nature and scope.—A statutory right of appeal conferred
on a suitor cannot be curbed on ground of public policy if the same is not in derogation of or
contrary to any other statutory provision, either expressly or by necessary implication, Bhanu
Kumar Jain v. Archana Kumar, (2005) 1 SCC 787.

The bar to an appeal against consent decree 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. K.C.
Dora v. Guntreddi Annamanaidu, (1974) 1 SCC 567.

Only a party aggrieved can file the appeal. Baldev Singh v. Surinder Mohan
Sharma, (2003) 1 SCC 34.

► Appeal in anticipation.—An appeal cannot be filed in anticipation. The doctrine of

eclipse has no application in a case of this nature. An appeal preferred in terms of Section 96
CPC must conform to the requirements contained in Order 41 thereof, Rekha
Mukherjee v. Ashish Kumar Das, (2005) 3 SCC 427.

► Improper disposal of appeal.—Court of first appeal can reappreciate the entire

evidence and come to a different conclusion from trial court. High Court either without
adverting to certain findings of trial court, or without reversing other findings, allowed first
appeals. Held, improper, Jagannath v. Arulappa, (2005) 12 SCC 303.

► Execution of decree when appeal is pending.—Filing of appeal would not amount to

automatic stay of execution of decree. Hence, decree-holder can get decree executed during
pendency of appeal. However, execution of decree shall be subject to restitution of property
in the event appeal is allowed and decree set aside, Inderchand Jain v. Motilal, (2009) 14 SCC
663 : (2009) 5 SCC (Civ) 461.

► Appeal is continuation of suit.—An appeal is continuation of the suit and decision

taken by appellate court relates back unless contrary intention is shown. Appellate court is
entitled to take into consideration subsequent events for moulding relief, Inderchand
Jain v. Motilal, (2009) 14 SCC 663 : (2009) 5 SCC (Civ) 461.
 A decree passed by an appellate court would be construed to be a decree passed by the
Court of the first instance. An appeal is virtually a rehearing of the matter. The appellate court
possesses the same powers and duties as the original Court. Once again the entire
proceedings are before the appellate court which can review the evidence as a whole, subject
to statutory limitations, if any, and can come to its own conclusion on such
evidence. Ramankutty v. Avara, (1994) 2 SCC 642.

► First Appeal and Second Appeal.—Litigants' right to be heard on facts and law in first
appeal, being a valuable right, first appeal should not be disposed of in limine. Appellate court
must, on proper application of mind on all issues and contentions put forth on questions of fact
and law and reappreciation of entire evidence, arrive at its own independent decision, Union
of India v. K.V. Lakshman, (2016) 13 SCC 124.

► Powers of Appellate Court.—First appellate court is the final court of facts. Hence, its
judgment must reflect application of mind. In its judgment, first appellate court must state
points for determination, decision thereon and reasons for decision. However, mere omission
to frame point(s) for determination does not vitiate the judgment of first appellate court
provided that appellate court records its reasons based on evidence adduced by both parties.
Points arising for determination must cover all important issues involved in the case and
should not be general and vague in nature. Where appellate court agrees with the views of
trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial
court. Expression of general agreement with reasons given by trial court would ordinarily
suffice in such a case. However, where appellate court reverses the findings of trial court, it
must record the findings in clear terms explaining how the reasonings of trial court are
erroneous, Laliteshwar Prasad Singh v. S.P. Srivastava, (2017) 2 SCC 415.

97. Appeal from final decree where no appeal from preliminary decree.—Where any
party aggrieved by a preliminary decree passed after the commencement of this Code does
not appeal from such decree, he shall be precluded from disputing its correctness in any
appeal which may be preferred from the final decree.

98. Decision where appeal heard by two or more Judges.—(1) Where an appeal is
heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the
opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the
decree appealed from, such decree shall be confirmed:

Provided that where the Bench hearing the appeal is 178[composed of two or other even
number of Judges belonging to a Court consisting of more Judges than those constituting the
Bench], and the Judges composing the Bench differ in opinion on a point of law, they may
state the point of law upon which they differ and the appeal shall then be heard upon that point
only by one or more of the other Judges, and such point shall be decided according to the
opinion of the majority (if any) of the Judges who have heard the appeal, including those who
first heard it.
 (3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the
letters patent of any High Court.

CASE LAW ► The benevolent purpose of Section 98(2), held, is to put an end to litigation
by confirming the decree of the subordinate Court where the Bench is equally, divided and
there is no question of law to be referred to one or more Judges, P.V.
Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda, (2002) 5 SCC 548.

99. No decree to be reversed or modified for error or irregularity not affecting merits
or jurisdiction.—No decree shall be reversed or substantially varied, nor shall any case be
remanded, in appeal on account of any misjoinder 179[or non-joinder] of parties or causes of
action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits
of the case or the jurisdiction of the Court:
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[Provided that nothing in this section shall apply to non-joinder of a necessary party.]

CASE LAW ► Error, defect or irregularity.—Defect in verification of plaint is a curable

defect, Dayaldas Gangwani v. Shanti Shukla, AIR 2010 (NOC) 173 (Chh).

[99-A. No order under Section 47 to be reversed or modified unless decision of the

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case is prejudically affected.—Without prejudice to the generality of the provisions of

Section 99, no order under Section 47 shall be reversed or substantially varied, on account of
any error, defect or irregularity in any proceeding relating to such order, unless such error,
defect or irregularity has prejudically affected the decision of the case.]