Code of Ci v i l

Pr oc e dur e
1908
Appeals

Dr. Khakare Vikas

Asso. Prof.
Narayanrao Chavan Law college, Nanded, India
Dr. Khakare Vikas
Appe a l
• Appeal is the removal of a cause from an inferior Court to a superior
Court for the purposes of testing the soundness of the decision of the
inferior Court.
• Where a person is aggrieved by decision or judgment of a Court, he
can prefer appeal to appellate Court.

Dr. Khakare Vikas

Ri g ht t o a ppe a l
• Appeal is a statutory right available to aggrieved person.
• 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.[ Section 96].
• Right to appeal is given by statute or by rules having the force of
statute. Unless a right of appeal is given clearly by statute, it does not
exist.[ AIR 1948 All 2; AIR 1974 SC 1126]

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Who c a n pr e f e r a ppe a l ?
1. Any party to suit adversely affected by the decree,
2. In case of death of party, his legal representative,
3. Guardian of a minor party,
4. Any transferee of interest of party, who is bound by decree of the
Court,
5. A person who is not party to suit but who is aggrieved by decree or
who is prejudicially affected by decree. But such person must
receive leave of appellate Court to file appeal.

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Numbe r s of a ppe a l
• All parties who are aggrieved can prefer appeal.
• Therefore more than one appeal is possible from one judgment and
decree.
• Where more appeals are filed, the appellate Court clubs such appeals
and one judgment and decree is passed.

Dr. Khakare Vikas

KINDS OF
APPEAL
• Appeals may be classified in two kind i.e. first appeal and second
appeal.
• Appeal it may be of following kinds:
1. Appeal from original decree, (sec. 96)
2. Appeal from order (sec. 104; Order XLIII),
3. Appeal from appellate decree/Second appeal/Appeal to High Court
(sec. 100, 100A; Order XLI), and

4. Appeal to the Supreme Court (sec.109; Order XLV).

Dr. Khakare Vikas

1. Appe a l f r om or i g i na l de c r e e
• Generally from every original decree passed by any Court first appeal
lies.
• From an ex-parte decree appeal may lie but appeal shall not lie from a
decree passed with consent of parties.[ Section 96]

Dr. Khakare Vikas

2. Appe a l f r om or de r s
• Appeal shall lie from the orders which are appealable. Such orders
are:[ Section 104]
• ff. An order under section 35A, [i.e. compensatory cost for false or
vexatious claims or defences]
• ffa. An order under section 91 or section 92 refusing leave to institute a suit
of the nature referred to in section 91 or section 92, as the case may be,
• g. An order under section 95; [i.e. compensation for obtaining arrest,
attachment or injunction on insufficient grounds]
• h. An order under any of the provisions of this Code imposing a fine or
directing the arrest or detention in the civil prison of an person except
where such arrest or detention is in execution of a decree;
• i. Any order made under rules from which an appeal is expressly allowed by
rules.
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• Order XLIII states that appeal under section 104 may lie from the
following orders:
• a. An order under rule 10 of Order VII returning a plaint to be
presented to the proper Court except where the procedure specified
in rule 10A of Order VII has been followed,
• c. An order under rule 9 of Order IX rejecting an application (in a case
open to appeal) for an order to set aside the dismissal of a suit;
• d. An order under rule 13 of Order IX rejecting an application (in a
case open to appeal) for an order to set aside a decree passed ex
parte
• f. An order under rule 21 of Order XI; (non compliance of order of
discovery)

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• i. An order under rule 34 of Order XXI on an objection to the draft of a
document or of an endorsement;
• j. An order under rule 72 or rule 92 of Order XXI setti ng aside or
refusing to set aside a sale;
• ja. An order rejecting an application made under sub-rule (1) of rule
106 of Order XXI, provided that an order on the original application,
that is to say, the application referred to in sub-rule (1) of rule 105 of
that Order is appealable.
• k. An order under rule 9 of Order XXII refusing to set aside the
abatement or dismissal of a suit;
• l. An order under rule 10 of Order XXII giving or refusing to give leave;

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• n. An order under rule 2 of Order XXV rejecting an application (in a
case open to appeal) for an order to set aside the dismissal of a suit;
• na. An order under rule 5 or rule 7 of Order XXXIII rejecting an
application for permission to sue as an indigent persons,
• p. Orders in interpleader suits under rule, rule 4 or rule 6 or Order
XXXV;
• q. An order under rule 2, rule 3 or rule 6 of Order XXXVIII; (order for
surety for Arrest or Attachment before judgment)
• r. An order under rule 1, rule 2, rule 2A, rule 4 or rule 10 of Order
XXXIX; (order for temporary injunction)

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• s. An order under rule 1 or rule 4 of Order XL; (appointment of

receiver)
• t. An order of refusal under rule 19 of Order XLI to re-admit, or under
rule 21 of Order XLI to re-hear, an appeal;
• u. An order rule 23 or rule 23A of Order XLI remanding a case, where
an appeal would lie from the decree of the Appellate Court;
• w. An order under rule 4 of Order XLVII granting an application for
review.

Dr. Khakare Vikas

3 . A p p e a l from a p p e l l a t e d e c r e e OR
s e c ond a ppa l or a ppe a l t oHi g h Cour t
• An appeal shall lie to High Court from decree passed by appellate
Court.
• Second appeal is also possible from an appellate decree passed ex-
parte.
• Second appeal to High Court shall lie if it involves a substantial
question of law.
• Formulating substantial question of law is sine qua non and if it is not
formulated, appeal is liable to be dismissed.

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• Substantial question of law depends upon facts and circumstances of
each case. A substantial question of law...
• i.Must be debatable,
• ii.Must not have been settled by law,
• iii.Not settled by any binding precedent,
• iv.Must have material bearing on the decision of the case,
• v.It is necessary to be decided for a just and proper decision between
the parties.[ AIR 1977 SC 1815; Santosh Hazari v. Purushottam Tiwari, AIR 2001 SC 965; Govindaraju v.
Mariamman, AIR 2005 SC 1008.]

Dr. Khakare Vikas

4. Appe a l t o t he Supr e me Cour t
• Subject to the provisions in Chapter IV of Part V of the Constitution
and such rules as may, from time to time, be made by the Supreme
Court regarding appeals from the Courts of India, and to the
provisions hereinafter contained, an appeal shall lie to the Supreme
Court from any judgment, decree or final order in a civil proceeding of
a High Court, if the High Court certifies...
i. That the case involves a substantial question of law of general
importance; and
ii. That in the opinion of the High Court the said question needs to be
decided by the Supreme Court.

Dr. Khakare Vikas

GROUNDS OF
APPEAL
• Appellant has to mention grounds of appeal in the memorandum of
appeal.
• Such grounds must be arising out of pleading and evidence and
necessary for the decision of the case.
• Appellant has to mention all the grounds of objection which he wants
to urge before appellate Court.
• A new plea may be raised before appellate Court as additional
grounds by substantial application. High Court has discretion to
accept or reject such additional grounds.[ Subbanna v. Subbanna, AIR 1965 SC 1325]

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PROCEDURE FOR [ Or de r XLI ]
1.Form of appeal: Every appeal shall be in the form of a memorandum
APPEAL
signed by the appellant of his pleader and presented to the Court. The
memorandum shall set forth, concisely and under distinct heads, the
grounds of objection to the decree appealed.
2.Rejection or amendment of memorandum: Where memorandum of
appeal is not drawn up in the manner herein before prescribed, it may be
rejected, or be returned to the appellant for the purpose of being
amended within a time to be fixed by the Court or be amended then and
there.
3.Application for condonation of delay: When an appeal is presented
after the expiry of the period of limitation specified there for, it shall be
accompanied by an application supported by affidavit setting forth the
facts on which the appellant relies to satisfy the Court that he had
sufficient cause for not preferring the appeal within such periodD.r. Khakare Vikas
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4. Stay by appellate Court: No order of stay of execution of decree
appealed shall be made unless the Court decides to hear the appeal.
5.Registry of memorandum of appeal
6.Security for cost: The Appellate Court may in its discretion, either
before the respondent is called upon to appear and answer or
afterwards on the application of the respondent, demand from the
appellant security for the costs of the appeal, or of the original suit, or
of both.
7.Power to dismiss appeal without sending notice to Lower Court:
The Appellate Court, after sending for the record and after fixing a day
for hearing the appellant or his pleader and hearing him accordingly if
he appears on that day, may dismiss the appeal without sending notice
to the Court from whose decree the appeal is preferred and without
serving notice on the respondent or his pleader. Dr. Khakare Vikas
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8.If on the day fixed or any other day to which the hearing may be
adjourned the appellant does not appear when the appeal is called on
for hearing, the Court may make an order that the appeal be dismissed.
9.Day for hearing: Appellate Court should fix a day for hearing the
appeal. Notice of day shall be affixed in the Court and send to the Court
whose decree is appealed and the respondent or his pleader. If
respondent does not appear on given date, the appeal will be heard ex-
parte.
10.Hearing: On the day fixed, or on any other day to which the hearing
may be adjourned, the appellant shall be heard in support of the
appeal. The Court shall then, if it does not dismiss the appeal at once,
hear the respondent against the appeal and in such case the appellant
shall be entitled to reply.
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11.Cross objection: Any respondent who may not have appealed from
any part of the decree can support the decree. He may take any cross
objection the decree which he could have taken by way of appeal.
12.Order/judgment: After hearing the appeal, the appellate Court
may:
i. Remand the case, or
ii. Where the evidence upon the record is sufficient to enable the
Appellate Court to pronounce judgment, the Appellate Court
may, after resettling the issues, if necessary, finally determine
the suit,
iii. May frame issues and refer them for trial to Court whose decree
appealed from,
iv. Take additional evidence or requires such evidence to be taken.

Dr. Khakare Vikas

St a y by Appe l l a t e Cour t
• An appeal shall not operate as a stay of proceedings under a decree
or order appealed from except so far as the Appellate Court may
order, nor shall execution of a decree be stayed by reason only of an
appeal having been preferred from the decree; but the Appellate
Court may for suffi cient cause order stay of execution of such
decree.[ Order XLI Rule 5]

Dr. Khakare Vikas

Tha nk y ou.

Dr. Khakare Vikas