This article is written by Yamini Jain, a student of III year BA LLB at ILS Law College, Pune. It provides a brief overview of the provisions relating to First Appeals under the Code of Civil Procedure, 1908 along with relevant case laws.
An appeal is a remedial concept determined as an individual’s right to seek justice against an unjust decree/order via referring it to a Superior Court. Sections 96 to 99A; 107 to 108 & Order 41 of the Code of Civil Procedure, 1908 deal with appeals from original decrees known as First appeals.
Meaning of appeal
The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law Dictionary, while construing the concept of ‘appeal’ in its most original and natural sense, explains it as “the complaint to a superior court for an injustice done or error committed by an inferior one, whose judgment or decision the Court above is called upon to correct or reverse. It is the removal of a cause from a Court of inferior jurisdiction to one of superior jurisdiction, for the purpose of obtaining a review and retrial”.
Essentials of appealing cases
An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on questions of law & fact with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in compliance of its directions. The essentials of appealing cases can be narrowed down to 3 elements:
- A decree passed by a judicial/administrative authority;
- An aggrieved person, not necessarily a party to the original proceeding; and
- A reviewing body instituted for the purposes of entertaining such appeals.
Right to appeal
The right to appeal is a statutory & substantive one. The statutory nature of an appeal implies that it has to be specifically conferred by a statute along with the operative appellate machinery as opposed to the right to institute a suit, which is an inherent right. It is substantive in the sense that it has to be taken prospectively unless provided otherwise by any statute. This right could be waived off via an agreement, and if a party accepts the benefits under a decree, it can be estopped from challenging its legality. However, an appeal accrues to the law as found on the date of the institution of the original suit.
One right to appeal
Section 96 of the CPC provides that an aggrieved party to any decree, which was passed by a Court while exercising its original jurisdiction, is conferred with at least one right to appeal to a higher authority designated for this purpose, unless the provisions of any statute make an exception for it. Section 97, 98 and 102 of the CPC enumerate certain conditions under which no further appeal is permitted, hence attributing to a single right of appeal.
No right to appeal
No person has a right to appeal against a decision unless he is a party to the suit, except on special leave of the Court. An essential element to be taken into account while considering one’s right to appeal is whether such person is adversely affected by the decision/suit, which is a question of fact to be determined in each case.
Distinction between suit and appeal
Where a cause is created and issues are disputed on questions of both facts and law, it is known as a suit.
An appeal only reviews & corrects the proceedings in a case already constituted but does not create a cause.
A suit is an attempt to achieve an end via a legal procedure instituted in a Court of law for enforcing one’s right/claim.
As per Dayawati v. Inderjit, it is the continuation of a suit in certain situations.
A suit is filed in the lowest Court in its respective hierarchy for trial.
An appeal is filed in an Appellate Court for the purposes of reviewing the decision of the inferior Court.
Garikapati Veeraya v. Subbiah Chaudhary
In the instant case, it was held that the pre-existing right to appeal to the Federal Court continued to exist and the old law which created such a right also continued to exist. It construed to the preservation of this right while recognizing the change in its judicial machinery from the Federal Court to the Supreme Court. However, the continuance of the old law is subject to the provisions of the Constitution.
The distinction between appeal and revision
An appeal lies to a Superior Court from every original decree unless expressly barred.
A revision to High Court is available only in those cases and against such orders where no appeal lies.
A right of appeal is one of substantive nature conferred by the statute.
There is no such right of revision because revisional power is purely discretionary.
An appellate jurisdiction can be exercised only through a memorandum of appeal filed before the Appellate Court by the aggrieved party and cannot be exercised suo motu.
The revisional jurisdiction can be exercised suo motu as well.
An application for appeal is maintainable on legal grants as well as on question of fact.
An application for revision is maintainable on the ground of jurisdictional error.
An appeal abates if the legal representative of the deceased are not brought on record within the time allowed by law.
A revision may not abate and the High Court has a right to bring the proper parties before the Court at any time.
A Court of appeal can, in the exercise of its powers, set aside the findings of facts of subordinate Courts.
The High Court or the revisional Court cannot, in the exercise of its revisional powers, set aside the findings of facts of subordinate Courts.
Section 96 of the CPC provides that an appeal shall lie from a decree passed by any Court exercising original jurisdiction to the authorized appellate Courts, except where expressly prohibited. A combined reading of Sections 2(2), 2(9), & 96 of the CPC indicates that a regular First appeal may/may not be maintainable against certain adjudications.
Section 100 provides for a second appeal under this code. It states that an appeal shall lie to the High Court from a decree passed in the first appeal by a subordinate Court, excepting the provisions speaking to the contrary. The scope of exercise of jurisdiction under this section is limited to a substantial question of law framed at the time of admission of appeal or otherwise.
Conversion of an appeal into revision
In the case of Bahori v. Vidya Ram, it was held that since there’s no specific provision under the CPC for the conversion of an appeal into a revision or vice versa, the exercise of power by the Court has to be only under Section 151. Further, the inherent powers of the Court, though discretionary, permit it to pass such orders as may be required to meet the ends of justice. The only precondition to such conversion is that due procedure is adhered to during the filing of the original appeal/revision.
Who may appeal?
A regular first appeal may be preferred by one of the following:
- Any party to the suit adversely affected by a decree, or if such party is dead, by his legal representatives under Section 146;
- A transferee of the interest of such party, who so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit;
- An auction purchaser may appeal against an order in execution setting aside the sale on the ground of fraud;
- No other person, unless he is a party to the suit, is entitled to appeal under Section 96.
A person, who is not a party to the suit, may prefer an appeal from a decree/order if he’s bound/aggrieved/prejudicially affected by it via special leave of the appellate Court.
Appeal by one plaintiff against another plaintiff
In Iftikhar Ahmed v. Syed Meherban Ali, it was concurred that if there exists a conflict of interest between plaintiffs and it is necessary to resolve it via a Court to relieve the defendant, and if it is in fact decided, it will operate on the lines of res judicata between co-plaintiffs in the subsequent suit.
Appeal by one defendant against another defendant
The rule in a case where an appeal is preferred not against the originally opposite parties but against a co-defendant on a question of law, it could be allowed. Such an appeal would lie even against a finding if it’s necessary while operating as res judicata (a matter that has been adjudicated by a competent Court and hence may not be pursued further by the same parties).
Who cannot appeal?
A party who waives his/her right to prefer an appeal against a judgment cannot file it at a later stage. Further, as inferred from Scrutton L.J.’s words:
“It startles me that a person can say the judgment is wrong and at the same time accept the payment under the judgment as being right….In my opinion, you cannot take the benefit of judgment as being good and then appeal against it as being bad”,
If a party ratifies any decision of the Court by accepting and acknowledging the provisions under it, it may be estopped from appealing that judgment in a higher forum.
The appeal against ex parte decree
In the first appeal under Section 96(2), the defendant on the merits of the suit can contend that the materials brought on record by the plaintiff were insufficient for passing a decree in his favour or that the suit was not otherwise maintainable. Alternatively, an application may be presented to set aside such ex parte decree (it is a decree passed against a defendant in absentia). Both of these remedies are concurrent in nature. Moreover, in an appeal against an ex parte decree, the appellate court is competent to go into the question of the propriety or otherwise of the ex parte decree passed by the trial court.
No appeal against consent decree
Section 96(3), based on the broad principle of estoppel, declares that no decree passed by the consent of the parties shall be appealable. However, an appeal lies against a consent decree where the ground of attack is that the consent decree is unlawful being in contravention of a statute or that the council had no authority.
No appeal in petty cases
Section 96(4) bars appeals except on points of law in cases where the value of the subject-matter of the original suit does not exceed Rs. 10,000, as cognizable by the Court of Small Causes. The underlying objective of this provision is to reduce the number of appeals in petty cases.
The appeal against Preliminary Decree
Section 97 provides that the failure to appeal against a preliminary decree is a bar to raising any objection to it in the appeal against a final decree. The Court in the case of Subbanna v. Subbanna provides that, the object of the section is that questions which have been urged by the parties & decided by the Court at the stage of the preliminary decree will not be open for re-agitation at the stage of preparation of the final decree. It’d be considered as finally decided if no appeal is preferred against it.
No appeal against a finding
The language of Section 98(2) is imperative & mandatory in terms. The object appears to be that on a question of fact, in the event of a difference of opinion, views expressed by the lower court needs to be given primacy & confirmed. The appellate court cannot examine the correctness of the finding of facts and decide upon the correctness of either view.
The appeal against a dead person
A person who has unknowingly filed an appeal against a person who was dead at the time of its presentation shall have a remedy of filing an appeal afresh against the legal heirs of such deceased in compliance of the Limitation Act.
Forms of appeal
Appeals may be broadly classified into two kinds:
- First appeal; and
- Second appeal.
The sub-categories under appeals are:
- Appeal from original decree;
- Appeal from order;
- Appeal from appellate decree/second appeal/to High Court;
- Appeal to the Supreme Court.
Forum of appeal
It is the amount/value of the subject-matter of the suit which determines the forum in which the suit is to be filed, and the forum of appeal. The first appeal lies to the District Court if the value of the subject matter of the suit is below Rs. 2,00,000; and to the High Court in all other cases.
Presentation of appeal
Order 41 provides the requirements for a valid presentation of an appeal that has to be made by way of a memorandum of appeal which lays down the grounds for inviting such judicial examination of a decree of a lower court.
In Hanmant Rukhmanji v. Annaji Hanmant, it was held that when an appellate Court dismisses an appeal under Section 151, a judgment has to be written summarising the cogent reasons for such dismissal, along with a formal decree.
Doctrine of merger
Any decree passed by the appellate Court is a decree in the suit. As a general rule, the appellate judgment stands in the place of the original judgment for all purposes, i.e. the decree of the lower Court merges in the decree of the Superior Court. In-State of Madras v. Madurai Mills Co Ltd., it was held that this doctrine is not a rigid one with universal application, but it depends on the nature of the appellate order in each case and the scope of the statutory provisions conferring such jurisdiction.
According to Order 41, R.22(1) & 33, cross-objections can be made by the defendants. They’re necessary only when some directions are issued against them that are to be challenged on the basis of which part relief has been granted to the plaintiff even without such cross-objections.
Powers of Appellate Court
Section 107 prescribes the powers of an appellate Court:
- To remand a case;
- To frame issues & refer them for trial;
- Reappraisal of evidence when a finding of fact is challenged before it;
- To summon witnesses;
- Can reverse inference of lower Court, if not justified;
- Appreciation of evidence.
Duties of an appellate court
- The appellate Court has a duty to analyze the factual position in the background of principles of law involved and then decide the appeal.
- To provide cogent reasons for setting aside a judgment of an inferior Court.
- To delve into the question of limitation under Section 3(1) of the Limitation Act.
- To decide the appeal in compliance with the scope & powers conferred on it under Section 96 r/w O.XLI, R.31 of the CPC.
Section 2(9) states that a “judgment” refers to the statement given by the Judge on the grounds of a decree/order.
Section 2(2) provides that a “decree” is a formal expression of an adjudication which conclusively recognises the rights of the parties with any of the disputed matters in a suit, and maybe preliminary/final. It includes the rejection of a plaint under Section 144 but does not include adjudication that’d result in an appeal from order; or any order of dismissal for default.
Letters patent appeal
Section 100A expressly bars a Letters Patent Appeal from an order of a learned Single Judge of the High Court, on/after 01/07/2002, in an appeal arising from an original/appellate decree. The bar is absolute & applies to all such appellate orders.
Appeal to SC
- From a judgment, decree, or final order of the High Court;
- A case pertaining to a substantial question of law of general significance;
- The High Court opines it to be fit for the Supreme Court to deal with such a question.
Appeals are recognized as statutory rights of persons aggrieved by any decision of an inferior court in the interest of justice. First appeals are a form of appeal prescribed under the Code of Civil Procedure. The period of limitation in case of an appeal to the first appellate authority is 90 days where it lies to the High Court. Finally, it can be concluded that the provisions of the CPC extensively deal with the substantive as well as procedural aspects relating to all kinds of appeals, while making express modifications in order to be accommodative of the more specific legislation.
- Dayawati v. Inderjit, AIR 1966 SC 1423, https://indiankanoon.org/doc/338690/.
- Garikapatti Veeraya v. N. Subbiah Choudhury, 1957 AIR 540, https://indiankanoon.org/doc/673500/.
- Subbanna v. Subbanna, AIR 1965 SC 1325, https://indiankanoon.org/doc/1752222/.
- Bahori v. Vidya Ram, https://indiankanoon.org/doc/713637/.
- State of Madras v. Madurai Mills Co Ltd., https://indiankanoon.org/doc/28118/.
- Hanmant Rukhmanji v. Annaji Hanmant, https://indiankanoon.org/doc/465172/.
- Iftikhar Ahmed v. Syed Meherban Ali, https://indiankanoon.org/doc/1778916/.
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