FIRST APPEAL

Section 96- Appeal from Original Decrees

An appeal led under section 96 only from a decree. An appeal does lie against a mere finding.

Scope of this section

1. Unless otherwise provided, an appeal lies from every decree passed by a court exercising
original jurisdiction to the court authorized to hear appeals from the decisions of such court.
2. An appeal can be even from an ex-parte decree.
3. But no appeal lies from a consent decree.
4. No appeal lies from a decree in any suit cognizable by Small Causes Court except on a
question of law, and the value of the subject matter does not exceed Rs. 10,000.

Right to Appeal

- Zair Hussain Khan v. Khurshed Jan 1906 – unless a right of appeal is clearly given by statute,
it does not exist, whereas a litigant has right to institute a suit of civil nature, independently
of any statute, in some court of another, provided its cognizance is not barred expressly or
impliedly under Section 9 of the Code.
- An order rejecting a plaint for non- payment of deficit court fees is a decree. There is a right
to appeal open to the plaintiff.
- In a case where special leave has been granted- the question whether appeal lies or not does
not arise.
- Unless a decree is given, no appeal lies from a mere finding- Rama Shankar v. Habraji AIR
1969
- But if the finding amount to a decree, an appeal would lie- Maha Prasad v. Dukh Haran Nath,
AIR 1941

WHO CAN APPEAL

Section 96- does not refer to the persons who can file the appeal.

GENERAL RULE- opnly party to the suit can appeal, if any other person happens to feel aggrieved by
that decree and his interests are affected thereby, he can appeal against it only by leave of the court
but not otherwise- Jatan Kanwar v. Golcha Properties AIR 1971 , Maharaj Singh v. State of UP AIR
1976

1. An party to the suit adversely affected by a decree or if party is dead- by legal

representatives under section 146
2. A transferee of the interest of such party- who so far as such interest is concerned is bound
by decree, provided his name is entered on the record of the suit
3. No other person, unless he is party to the suit is entitled to appeal under this section.

A Party challenging a compromise in a suit can file an appeal under proviso to Rule 3 of Order 23- in
which he can question the validity of the compromise in view of R.1A Order 43
Appeal against Ex- parte Decree- Clause 2

- If ex-parte decree set aside in appeal on ground of insufficiency of evidence, then remand
and retrial of suit should be ordered.

Consent Decrees not appealable- Clause 3

- No decree passed by the consent of the parties shall be appealable. However an appeal lies
against a consent decree where ground of attack is
o That the consent decree is unlawful being in contravention of a statute, or
o That the counsel had no authority
- For example- appeal against compromise decree alleged to be void being entered into
without the leave of court in representative suit- would be maintainable- Deputy Commr,
Bilaspur v. Jai Prakash Bhojki AIR 2009

Exceptions where consent decree is appealable-

1. Where appellant appeals on the ground that it was not a decree passed with the consent of
the parties and lawyers of the parties had consented without any authority from their
respective clients.
2. Where the appellant was not party to the consent decree and the decree affects him
prejudicially.

Appreciation of Evidence by Appellate Court

- When the trial court has considered entire evidence and recorded several material findings,
the first appellate court cannot reverse them on the basis of conjectures and surmisesor
without analyzing the relevant evidence in entirety.
- If first appellate court is reversing the judgement of a trial court- it is bound to
independently consider the entire evidence.

SECOND APPEAL- SEC 100

1. An appeal shall lie to the HC from evey decree passed by any Court subordinate to the High
Court, if the High Court is satisfied that the case involves a substantial question of Law.
2. An appeal may lie under this section from an appellate decree passed ex-parte.
3. In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
4. Where the HC is satisfied that a substantial question of law is involved in any case, it shall
formulate that question
5. The appeal shall be hard only on the question so formulated, and the respondent shall, at
the hearing of appeal, be allowed to argue that the case does not involve such question.

Provided that nothing shall be deemed to take away or abridge the power of the court to hear,
for reasons to be recorded, the appeal on any other substantial question of law, not formulated
by it, if it is satisfied that the case involves such question.
Scope of this Section

1. Scope is limited to substantial question of law framed at time of admission of appeal or

additional substantial question of law framed at a later date after recording reasons.
2. Adequacy or sufficiency of evidence to support a finding of fact, is not a ground of Second
Appeal
3. Re-appreciation or re-assessment of evidence is not permissible