APPEALS, REVIEW, REVISION AND

REFERENCE
1) Review, Revision and Reference
2) Appeal from original Decree
3) Appeal from appellate Decrees
4) Appeal to Supreme Court
5) Appeal From Orders
 APPEAL
• Meaning of Appeal
• Right of Appeal.
• Appeal is continuation of suit.
• Who may Appeal
• Who cannot Appeal.
 Meaning of Appeal
The expression ‘appeal’ is not defined in the
code.
The dictionary meaning of appeal is "the judicial
examination of the decision by a Higher Court
of the decision of an inferior Court".
Any application by a party to an appellate Court,
asking it to set aside or reverse a decision of a
subordinate Court, is an appeal within the
ordinary acceptation of the term.
It is a complaint made to the Higher Court that
the decree passed by the Lower court is
unsound and wrong.
It is a right of entering a superior court and
invoking its aids and interposition to redress an
error of the court below.
 Essential Elements Of Appeal
I. A decision.
II. A person aggrieved.
III. A Superior Court/Forum (A reviewing body
ready and willing to entertain in appeal.)
 Material Date of Right of Appeal
• The right to appeal accrues on the date of
institution of suit, and not on the date of
decision.
• Thus, if on the date of institution of the suit
the right of appeal is provided by the statute,
it will available to the aggrieved party after
decree/order is passed even though
subsequently it was taken away by the
legislature.
 Right of Appeal
• Right of appeal is not an inherent right. It is essentially
a creature of statute. Unless right of appeal is clearly
given by the statute, the right does not exist.
• The right of appeal is a substantive right and not
merely a matter of procedure, it is a vested right and
accrues to the litigant and exists as on and from the
date of the lis commences and although it may be
actually exercised when the adverse judgment is
pronounced, such right is to be governed by the law
prevailing at the date of Institution of the suit or
proceeding and not by the law that prevails at the date
of its decision or at the date of filing of the appeal.
 One Right of Appeal
• A single right of appeal is more or less a
Universal requirement. It is based on the
principle that all men are fallible and judges
are human being who may committee
mistake. A judge who has not committed an
error is yet to be born. This dictum applies to
all judges from lowest to highest courts.
• Absence of even one right of appeal must be
considered to be a glaring lacuna in a legal
system governed by the rule of law.
• The Law Commission in its 54th report also
observed that "An unqualified right of first
appeal necessary for the satisfaction of
decretal litigants but a wide right of second
appeal is more in the nature of luxury."
 Appeal Is Continuation Of Suit.
An appeal is virtually a rehearing of the matter.
The Appellate Court possesses the same powers
and duties as the original court.
The appellate court can review the evidence as a
whole, subject to statutory limitation, if any, and
can come to its own conclusion on such evidence.
The First Appellate court can do all that which
could be done by the trial Court [Tajinder Singh
Gambhir V. Gurpreet Singh, (2014) 10 SCC 702 ].
 Who may file an appeal
1) A party to the suit who is aggrieved.
2) If such party is dead, his legal representative
(S.146).
3) Any person claiming under aggrieved person.
4) Guardian ad litem appointed by the court in case
of suit by or against minor, (S.147 and Order 32
Rule 5).
5) Any other person if he is adversely affected by
the decision of the Court, with the leave of the
court.
Where There Is No Right Of Appeal
Instances where there is no right of appeal under code of
civil procedure:
1) No appeal against consent decree.[S.96(3) CPC]
2) Bar on appeal against preliminary decree [S.97 CPC]
3) No appeal in petty cases [S.96(4) S.102 CPC]
4) No appeal if decree passed by a single judge [S.100-A]
5) Non appealable orders: Section 105 provides that except
provided under section 104 and Order 43 Rule 1, all the
orders passed by the court are non appealable except in
case where a decree is appealed from and the defect or
error in the order affects the decision of the case.
Appeal Against Preliminary Decree
• General Rule : Appeal lies from every Decree.
So it can be from Preliminary Decree.
• But if a party fails to raise it’s correctness in
Appeal, what will be the consequence
 No appeal against Final Decree Where no Appeal
Against Preliminary Decree
(S.97 CPC)

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.
 No Appeal against Consent Decree.
[S.96(3) CPC]
• No appeal shall lie from a decree passed by
the court with the consent of the parties.
• However order 43 rule 1A provides that it shall
be open to the appellant to contest the
decree on the ground that compromise
should or should not have been recorded.
 No appeal in Petty Case
[S. 96(4) & 102 CPC]
• No appeal shall lie against decree passed by
the Court Of Small Causes except on question
of law and where value of subject matter of
the suit does not exceed 10000 Rs. Similarly
according to Section 102 second appeal is
barred where of subject matter is less than
25000 Rs.
 No Appeal if Decree is passed by Single
Judge [S.100.A]
100A. No further appeal in certain cases.—
Notwithstanding anything contained in any
Letters Patent for any High Court or in any
instrument having the force of law or in any
other law for the time being in force, where any
appeal from an original or appellate decree or
order is heard and decided by a Single Judge of a
High Court, no further appeal shall lie from the
judgment and decree of such Single Judge.]
• CPC Amendment Act, 1999 abolished apeals against
judgments of a Single Judge of the High Court in all cases.
By CPC Amendment Act, 2002 appeals to the Division
Bench of the High Court in writs under Art.226 and 227 of
the Constitution have been restored.
• This section bars further Appeal to Division Bench of High
Court against decision of the Single Judge in Appeals
under S.96, 100 and S. 104.
• Letters Patent power of High Court in matter where Single
Judge hears an appeal from Original order has been taken
away by Amendment of S-100A.
• Where any first appeal or second appeal or
appeal from order is heard and decided by a
Single Judge of the High Court, No further appeal
will lie from the decree of such Judge.
• Section 100A of the CPC was inserted originally by
the amending act 1976 with effect from 1st
February 1977 in order to bar a third appeal
before the Division Bench of the High Court
against the decision of a Single Judge in second
appeal.
• This section was introduced by the Amending
Act 1976, Before 1976, from the decision of a
High Court judge sitting singly (rendered in a
second appeal) if further appeal could be
taken to a division bench under clause 15 of
letters patent. The section abolished that right.
• Intra-court appeal filed against the judgment of
the Single Judge passed in exercise of appellate
powers in view of S.100-A is not maintanaible.
AIR 2008 Raj 151
 1-Appeal From Original Decree
or First Appeal
(S.96 O.41)
1) Every Decree is appealable except otherwise
provided.
2) No Appeal against Consent Decree. [S.96(3)]
3) Bar on Appeal against Preliminary Decree[S.97]
4) No appeal in Petty Case [S. 96(4) & 102]
5) No Appeal if Decree is passed by Single Judge
[S.100.A]
6) Non Appealable Orders [S.105]
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
authorized 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.
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
thousand rupees.]
 Every Decree Is Appealable Except
Otherwise Provided
• 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
authorized to hear appeals from the decisions
of such Court.
 Conditions for Appeal
1) The subject matter of the appeal must be
decree, that is, a conclusive determination of
"the rights of the parties with regard to all or
any matters in controversy in the suit", and
2) The party appealing must have been
adversely affected by such determination.
• Section 96 recognizes the right of appeal from
every decree passed by any Court exercising
original jurisdiction.
• The ordinary rule is that only a party to a suit
adversely affected by the decree may file an
appeal.
• A decision cannot be said to adversely affect a
person unless it will operate as res-judicata
against him in any future suit.
 PROCEDURE RELATING TO APPEAL:
(Order 41)
1. Every appeal shall be preferred in the form of memorandum.
2. The Memorandum shall be accompanied by a copy of
judgment.
3. The Memorandum shall contain the grounds of objection to
the decree appealed against.
4. According to order 20 Rule 6A time for preparation of decree
is 15 days from the date of the judgment. If aggrieved person
wish to file appeal immediately he can do so till the time the
decrees under preparation, the judgment of the court shall
be considered to be the decree for the purpose of filing the
appeal. This rule further says that as soon as the decree is
drawn, the judgment shall cease to have effect of the decree.
 Stay of Decree
• Order 42 Rule 5: An appeal shall not operate
as a stay of the proceeding under a decree or
order appealed against.
• Execution of a decree shall also not be stayed
merely because of filing of appeal unless the
appellate Court stays the execution.
 SUMMARY DISMISSAL
• Rules 1 and 11 A provide for summary dismissal of
appeal. General principle embodied in Rule 11 is
that appellate court is entitled to reject the appeal
summarily when there no prima facie substance in
it.
• Rule 11A further provides that every appeal under
Rule 11 should be heard as expeditiously as
possible and endeavor should be made to conclude
the hearing the appeal within 60 days from date on
which Memorandum of appeal is filed.
 ADMISSION OF APPEAL
• If the appeal is not dismissed under Rule 11,
the court shall fix a date for hearing the
appeal. Notice of such date shall be
communicated to the court from whose
decree the Appeal is made and to the
respondent or his pleader.
 POWERS OF APPELLATE COURT:
(section 107 order 41)
Court shall have the same power as the court of original
jurisdiction in respect of the suit instituted therein.
1) Power to determine a case finally [section 107(1)(a) r/w
order 41 rule 24]
2) Power to remand the case [section 107(1)(b) r/w order 41
rule 23 & 23A]
3) Power to frame issues and send them for re-trial [section
107(1)(c) r/w order 41 rule 25-26]
4) Power to take additional evidence [section 107(1)(d) r/w
order 41 rule 27-29]
5) Power to modify decree [order 41 rule 33]
Power To Determine A Case Finally
[Section 107(1)(a) r/w Order 41 Rule 24]

• It empowers the court to decide the case

finally where the evidence on record is
sufficient. This section lays down the general
rule that the case should be disposed of on
the evidence on record and should not be
remanded for fresh evidence, except in rare
cases, by drawing the final curtain on the
litigation between the parties.
 Power To Remand The Case
[Section 107(1)(b) r/w Order 41 Rule 23 & 23A]

• Where court from whose decree appeal is

preferred has decided case on a preliminary
point without recording finding on other
issues and the Appellate Court reverses the
decree so passed, it may send back the case to
that trial Court to decide other issues and
determine the case.
• Essentially it is an order to the Subordinate
Court to reopen and retry the case.
• PRELIMINARY POINTS: A point is said to be
preliminary if the decision of the inferior Court
is not on merits of the case but on certain
technical points like dismissal for want of
jurisdiction, Res-judicata, limitation, bar to
suit etc. Preliminary point maybe of fact or
law but it must have avoided the necessity of
full trial.
Remand in other cases (Rule 23A) :
Rule 23A inserted by Amendment Act of 1976,
widen the power of appellate court to remand
the case even in those cases where the lower
court has decided the case on merits but the
appellate court considers such remand in the
interest of Justice.
 Power To Frame Issues and Send them For Re-trial
[section 107(1)(c) r/w order 41 rule 25-26]
• In a case of the inferior court has omitted to
frame any issue or try any issue or determine any
question of fact essential for the decision, the
appellate court may frame the issue and refer the
same for trial to inferior Court. The Court can also
direct the lower court to take additional evidence
required. The lower court shall try such issues and
shall return the evidence and findings within the
time fixed by the appellate court.
• The evidence or finding so recorded will form part
of the record in appellate court.
Rule 23, 23A,25: Distinction:
The points of distinction between rule 23, 23 A and rule 25 are
as follows-
a) While after remand under rule 23 or 23A, the whole case
goes back for decision to the Lower court (except on the
point on which the appellate Court has reversed the finding
of the Lower court) under rule 25 the case is retained in
the file of the appellate Court and only issues are remitted
to the Lower court for trial and finding thereon.
b) An order of remand under rule 23, 23A is a final order
which cannot be reconsidered by the court which passed it
except on review, while an order under rule 25 is an
interlocutory order which is open to be reconsidered by
the court which has passed it.
 Power To Take Additional Evidence
[section 107(1)(d) r/w Order 41 Rule 27-29]

General rule is that the appellate court should not

admit new evidence for disposal of appeal. Rule 27
form an exception to this rule and allows the party to
produce additional evidence in the following
circumstances:-
1) The inferior court improperly refused to admitted
evidence which ought to have been admitted; or
2) Despite due diligence, such additional evidence
was not within parties knowledge at the time when
inferior Court passed the decree; or
3) The appellate court itself requires some evidence or
document for just decision in the case.
Shivaji Rao Nilanjekar Patil v. Mahesh Madhav (1987) 1
SCC 227 Supreme Court held that the basic principle of
admission of additional evidence is that the person seeking
the admission of additional evidence should establish that
even with the best efforts such additional evidence could
not have been adduced at the first instance.
Secondly, the party affected by the admission of additional
evidence should have an opportunity to rebut such
additional evidence. Thirdly, that additionally evidence
was relevant for the determination of the issue.
For taking additional evidence the appellate Court must
specifically record a finding that any of the conditions for
taking additional evidence exists.
 POWER TO MODIFY DECREE
[Order 41 Rule 33]
• In order to do complete justice the appellate
Court can modified decree.
• For example A claims a sum of money due
from X or Y and files suit against both. The
decree is obtained against X . X appeals and A
and Y are respondents. The Appellate Court
decides in X's favours. It has power to pass
decree against Y.
• The underlying object of Rule 33 is it to enable
the appellate court to do full and complete
justice between the party. It is true that the
power of appellate court is discretionary. But
it is a proper exercise of judicial discretion to
determine all questions in order to render full
justice to the parties.