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Appeals under CPC-Essentials,procedure,rules and cases

What is an Appeal under CPC?


An appeal is a judicial examination of the decision of an inferior court, by a superior court i.e. it is the removal of a cause from an inferior court to test the soundness of its decision, done by a superior court. There is no formal definition of an “appeal” under the CPC 1908.


Judge gavel and law book in front of scales of Justice

The settled position in law is that an appeal is a substantive right and not really a procedural one. Also, there can be an appeal only if the statute allows for it. However, if an Act/Code does not provide for a mechanism of appeal, it cannot be declared ultra-vires or unconstitutional on that ground.

The essentials of an appeal are quite simple:

  • There is a decision given by the subordinate court.

  • The person is aggrieved by such a decision

  • There is a reviewing body ready and willing to entertain an appeal

The Civil Procedure Code 1908 provides for appeals under Sections 96 to 112 to be read with Orders 41 to 45 of the Code. We shall discuss appeals under the following heads) along with the general procedure in Appeals:

  • First Appeals [Section 96-99A and Order 41]

  • Second Appeals [Section 100-103, 107-108 and Order 43]

  • Orders from which appeal lies[Section 104]

  • Powers of Appellate Courts [Section 107]

  • Appeal to the Supreme Court [Section 109,112 and Order 45]

First Appeals


Section 96(1) provides that an aggrieved party can file an appeal to a superior court against a decision of a subordinate court either on a question of fact or a question of law or a question involving a mix of both fact and law.


Note: First appeals can be filed in any court which may or may not be the High Court.


Who may appeal?


In A.P Gandhi v H.M. Seervai, it was held that appeals can be made by-

  1. A party to suit who was aggrieved or affected by the decree of the subordinate court.

  2. A person claiming or having vested interest under a party to the suit, which has been affected by the decree.[Section 146]

  3. A guardian ad idem [Section 147, Order 32- Rule 5]

  4. Any other party affected by the decree provided leave of the appellate court is granted.

--------96(2) further states that an appeal can be made against an Ex-parte decree though, one may also prefer an appeal to set aside an ex-parte decree given by the subordinate court.

--------96(3) provides that no appeal can be sought against the award of a Consent Decree by the subordinate court (based on the principle of estoppel. Also, no appeal lies in petty cases [96(4)]


Section 97 provides that an appeal must lie usually against a Preliminary Decree i.e. one cannot challenge a final decree if they do not challenge a preliminary decree (on which the final decree in a suit is based).


After an appeal

The Court has three options-

  • Reverse the order under appeal.

  • Modify the order.

  • Dismiss the appeal and re-affirm the order without any modification

It was held in Collector of Customs v. East India Commercial Company Ltd. that, after an appeal, “it is the Appellate Court’s decision alone which subsists and, is operative and capable of enforcement” i.e. the decision of the earlier court does not remain in force (unless the Appellate Court did not modify or add anything to the decree of the subordinate court).


Further rules of Appeals under Order 41


Rule 1: Requirements/ Pre-requisites of an Appeal

  • Must be presented in a memorandum setting forth the grounds on which the appeal is sought

  • Must be signed by the appellant or his pleader

  • Must be presented to the appointed/designated officer of the court

  • The appeal must be accompanied by a copy of the judgement of the subordinate court.

Rule 9: States that the decree of the Court on which appeal is sought shall be the first to entertain the memorandum of appeal (as mentioned u/Rule 1) and then, it shall make an endorsement to the Superior Court and, register the same into the Register of Appeal


However, post Salem Advocates’ Bar Association v. Union of India (2003), this rule was held to be arbitrary as the Supreme Court stated that the appellate Courts can be approached directly with bonafide appeals.


Rule 35: The decree of an Appellate Court shall contain

  • Date and day of Judgement

  • The number of the appeal, the names of the parties and the relief granted.

  • Cost of the appeal and who shall pay the same

  • The signature and date of the Judge who passed it.

Rule 5 to 8: Stay of Proceedings


1. The mere filing of an appeal does not suspend the decree. A Stay has to be granted if there is sufficient ground for the appeal [Rule 5(1) & (2)].


2. Before issuing a stay of proceedings the court must be satisfied with the following

  • That the application (appeal) was made without unreasonable delay.

  • A substantial loss will be incurred by the appellant in case a stay is not granted.

  • The security for the due performance of the earlier decree was paid by the appellant.

3. Hearing of an appeal occurs in two stages-

  • Admission Stage- where grounds are reviewed, the requisite stay is granted, and parties are called up to the appellate court to present their evidence.

  • Final Stage- essentially the main trial that occurs in the appeal and whereby, the Appellate Court provides for a decree and subsequent reasoning (judgement)

Rule 16 to 21: Procedure at Hearing


A still from a court hearing

1. Right to begin (Rule 16)

The appellant shall begin the proceedings on the date fixed for appeal. The court then, if it does not dismiss the appeal, has to hear the respondent party and, provide the appellant with the opportunity to reply.


2. Dismissal for default and restoration of appeal:

If the appellant does not appear on the date fixed, the Appellate Court may dismiss the appeal for default [Rule 17].


If the appeal is dismissed for default or for non-payment of fees, the appellant may apply to the Court for restoration of the appeal provided that sufficient cause is shown on his part (and the requisite fee is paid) [Rule 19]


3. Ex-parte hearing and re-hearing:

If the appellant appears and the respondent doesn’t when called for a hearing, then an ex-parte decree may be pronounced against the respondent [Rule 17(2)]

The respondent can apply for a rehearing of the appeal by providing and proving the sufficient cause for his non-appearance under Rule 21

4. Addition of respondents [Rule 20]

If it appears to the court that any party to the original suit has not been made a party to the appeal, it may adjourn the hearing of the appeal to a future date and, direct that such party shall be made or added as respondents in the appeal.


Section 98 & Rule 31 to 34: Judgement


Every judgement to an appeal should contain the following essentials:

  • Points for determination set out in the case

  • The decision thereon

  • The reason for the decision i.e. reversed or varied decrees to the original decree shall be signed by the Judge(s) concurring therein.

Second Appeals (i.e. Appeals arising out of Appellate Decrees)


Gauhati High Court
Gauhati High Court

Section 100 (1) allows the filing of second appeals in the High Court if it is satisfied that the case involves a Substantial Question of Law”.


--- “Whether something is a substantial question of law or not depends upon the facts and circumstances of each case and, no rule of universal application can be laid down”--- In Syeda Rahimunnisa v. Malan Bi


A test for whether a substantial question of law is involved in a case was given by the Supreme Court of India in Chunilal Mehta and Sons Ltd. V. Century Spg. & Mfg. Company,

  1. Whether the matter is of general importance (that it has a far-reaching effect in the justice administration of the state).

  2. Whether it directly and substantially affects the rights of parties and if so, -- Whether it is an open question and it cannot be settled unless by the higher court or ---it is not free from doubt or----- the matter calls for alternate views.

Also, Section 101 prohibits all second appeals apart from those initiated under Section 100(1)


------------Note: Any court may refer any matter to the High Court (for its opinion, which shall pass an order thereon) by any court under Section 113.


100 (2) an appeal may lie under this Section in case of an appellate decree (first appeal) that was passed ex-parte.


100(3) in an appeal under this Section, the memorandum of appeal shall precisely state the substantial question of law that is involved.


100(4) if the High Court is satisfied that a substantial question of law is involved in the case then, it shall formulate such a question.


100 (5) appeal shall be heard on the formulated question [Order 42- Rule 2] and, the respondent in the case will be allowed to argue that the case does not involve such question.


------------The proviso to this section adds that the High Court has to record reasons for admitting questions that are not formulated by it.


--Section 100A: No further appeal in certain cases


“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”.

However, an appeal from a Single Bench to a Division Bench of the High Court is allowed under the Code.


Section 102: No second appeal shall lie from any decree


A second appeal cannot be filed against an original or appellate decree in a suit, in which the subject matter involved does not exceed Rs. 25000.


Orders from which appeal lies


Section 104(1) of the Code specifically states that an appeal shall lie from the following orders under this Section (along with appeals otherwise provided under the Code or under any other law in force):

  • Order under Section 35A (“Compensatory costs in respect of false or vexatious claims or defences”)

  • Order under Section 95 (“Compensation for obtaining arrest, attachment or injunction on insufficient ground”)

  • An order imposing a fine, directing arrest or detention in civil prison to any person (except when such arrest or detention is for the execution of a decree).

  • An order made under rules from which an appeal is expressly allowed by the said rules.

---------104(2): No appeal shall lie from any order passed in an appeal under this Section.


Appeals to the Supreme Court


The Supreme Court of India

Under Section 109 of the Code, an appeal shall lie to the Supreme Court from any judgement, decree or final order in a civil proceeding of the High Court, if the said High Court certifies:

  1. That the case involves a substantial question of law of general importance.

  2. That it is the High Court’s opinion that the matter shall be resolved by the Supreme Court.

Further, Section 112 states that the Civil Procedure Code’s provisions shall not affect the power of the Supreme Court under Article 136 of the Constitution or interfere with rules of Appeals formulated by the Supreme Court.


LIMITATION ON APPEALS


Article 116(a) of the Limitation Act 1963 provides that an appeal shall be brought to the Supreme Court within 60 days, the High Court within 90 days and within 30 days (in case of other appellate courts) of the date of the original or appellate decree.


Powers of an Appellate Court


1. Power to decide a case finally [Section 107(1)(a)- Order 41 Rule 24]


Where the original evidence is sufficient to enable the appellate court to pronounce a judgement in the matter, no new evidence is taken. However, in Sunder Singh v. Narain Singh, this was declared as the general rule and, new evidence might be allowed in rare cases.

2. Power to remand subordinate court [Section 107(1)(b), Order 41- Rule 23 & 23A]:

This power is subject to the satisfaction of the following three grounds:

  • The case was disposed of by the trial court on a Preliminary point.

  • The decree under appeal has been reversed.

  • Any other ground deemed fit by the Appellate Court.

3. Power to frame issues and refer them for trial [Section 107(1)(c), Order 41-Rule 25 &26]


4. Power to take in additional evidence [Section 107(1)(d), Order 41-Rule 29 to 29]


5. Power to modify original decree [Order 41-Rule 33]


That’s it, we have covered everything you need to know about appeals under the Civil Procedure Code 1908.


Click for more CPC-related topics under the Civil Procedure Category.


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