Introduction:
The term ‘appeal’ is not defined in Civil Procedure Code, 1908. When a suit is heard by the trial court, the trial court enquires the issue, arrives at a conclusion and pronounces a decree either in favour of the plaintiff or the defendant. For the purpose of safeguarding citizens from the possible loopholes in the judicial process, and to give the losing party an opportunity to be heard by a reviewing body, there is a provision for appeal in our judicial system. The person filing or continuing an appeal is called the appellant and the concerned Court is termed as the appellate Court. A party to a case does not have any inherent right to challenge the judgment/order of a Court before its Superior Court. Appeal can be filed only if it is specifically allowed by any law and has to be filed in the specified manner in the specified Courts.
Meaning
of the decision of a lower Court by a higher Court. The higher Court will re-examine the case and the lower Court’s judgement and base its own order on Ordinarily appeal means a complaint made to a superior court against the decision of a subordinate court with the object of getting such order modified or set-aside or reversed. Further following points are also worth noted regarding appeal:
- An appeal is the judicial review this examination.
- An appeal is always made to a higher authority, a reviewing body which will look into the matter on certain points and decide whether the adjudication previously made should be reversed or modified or retained.
- Appeal is the continuation of the original proceedings before a superior court.
- An appeal is virtually a rehearing of the matter. The appellate court possesses the same powers and duties as the original court. Once again, the entire proceedings are before the appellate court which can review the evidence as a whole, subject to statutory limitations, if any, and can come to its own conclusion on such evidence.
- It is obvious that when an appeal is made, the appellate authority can do one of the three things, namely:
- It may reverse the order under appeal;
- It may modify that order; and
- It may merely dismiss the appeal and thus confirm the order without any modification. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it.
Elements of appeal: The three basic elements of an appeal are:
- A decision (usually a judgment of a court or the ruling of an administrative authority);
- A person aggrieved (who is often, though not necessarily, a party to the original proceeding) ; and
- A reviewing body ready and willing to entertain an appeal
Right of appeal
Right of appeal is not a natural or inherent right. It is well settled that an appeal is a creature of statute and there is no right of appeal unless it is given clearly and in express terms by a statute. Whereas sometimes an appeal is a matter of right, sometimes it depends upon discretion of the court to which such appeal lies.
In the latter category of cases, the right is to apply to the court to grant leave to file an appeal; for instance, an appeal to the Supreme Court under Article 136 of the Constitution of India. If a particular Act does not provide a right of appeal, it cannot be declared ultra vires only on that ground. Again, 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 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 the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary implication, and not otherwise.
Thus, if an appeal lies against an order passed by a Single judge of the High Court under Sections 397 and 398 of the Companies Act, 1956, to the Division Bench, the said right cannot be taken away on the ground that the High Court has not framed the necessary rules for filing such an appeal. Substitution of a new forum of appeal should not be readily inferred. The right being a creature of statute, conditions can always be imposed by the statute for the exercise of such right.
In Anant Mills Co. Ltd. v. State of Gujarat, speaking for the Supreme Court, Khanna, J. said: “It is well settled by several decisions of this court that the right of appeal is a creature of a statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory.
PROCEDURE FOR FILING AN APPEAL:
Who Can File an Appeal ?
- Any party to the original proceeding or his/her legal representatives.
- Any person claiming under such party or a transferee of interests of such party.
- Any person appointed by the court as the legal guardian of a minor.
- Any other aggrieved person after taking leave of the court.
Case Law:
In Krishna v. Mohesh 1905, the court observed that “the question who may appeal is determinable by the common-sense consideration that there can be no appeal where there is nothing to appeal about”
Who Cannot?
- A party which has relinquished its right of appeal as per an agreement which is clear and unambiguous.
- A party which has availed the benefits under a decree.
- Parties with a consent decree. Consent, in this case, could be a lawful agreement or compromise, or could even be presumed from the conduct of the parties.
- Parties, whose factum or compromise is in dispute or hasn’t been formulated.
- Parties involved in petty cases.
- No legal representatives are entitled to file an appeal against a deceased person.
CASE LAWS :
Kaleidoscope India Pvt. Ltd. v. Phoolan Devi 1995 SC: In this case, the Trial
Court judge prohibited the exhibition of film both in India and abroad. Session Judge permitted the exhibition of film in abroad. Subsequently, a party who moved in appeal did not have locus standi. It was reversed by division bench saying that its not proper on the part of judge as he entertained the suit on which party has no locus standi.
Delhi Cloth & General Mills v. I T Commissioner 1927: Where right to appeal is created subsequently than it shall not be available to a litigant if the suit was instituted prior to such creation.
Veeraya v. Subbia Choudhry1957 SC : In this case the court held that Right to appeal get vested on the date suit is instituted. A new right to appeal gets created can’t be availed by the parties to a proceeding which commenced earlier during the creation of new rights.
Memorandum of Appeal (Order XLI, Rule 1):
An appeal must be supported with a memorandum of appeal, which is a document comprising of the grounds of appeal. The constituents of a valid memorandum of appeal include:
- The grounds for filing an appeal.
- Signature of the appellant or his/her pleader.
- The attachment of the certified copy of the original judgement.
- The remittance of the decretal amount or security (in case of a money decree).
The appellant, with respect to this provision, is not entitled to take any grounds or objection except the ones mentioned in the memorandum. However, the court may accept such objections on its own accord, provided the opposite party is provided with adequate opportunities to contest such grounds. The memorandum of appeal must contain the grounds of objections to the decree appealed from, concisely, under distinct heads, without any arguments or narrative and should be numbered consecutively. The court has the right to reject or amend any memorandum which it finds to be inappropriate. The court shall record the reasons for such rejection.
Kinds of Appeal :
There are four classes of appeals, provided under the Civil Procedure Code:
Appeals from original Decrees : FIRST Appeals (Section 96-99, Order 41) : The characteristics of a first appeal may be listed as follows :
- It lies against the decree passed by the Court exercising original jurisdiction. It means Appeals from original decrees, which is performed by the appellate court, are preferred in a court which is superior in rank to the Court passing the decree.
- It may be filed in a superior Court which may or may not be the High Court.
APPEAL AGAINST EX PARTE DECREE: SECTION 96(2)
As stated above, one of the remedies available to the defendant, against whom an ex-parte decree is passed, is to file an appeal against such a decree under Section 96(2) of the Code, though he may also file an application to set aside ex-parte decree. Both the remedies (appeal and application to set aside ex parte decree) are concurrent and can be resorted to simultaneously. One does not debar the other.
NO APPEAL AGAINST CONSENT DECREE: SECTION
96(3): Section 96(3) declares that no appeal shall lie against a consent decree. This provision is based on the broad principle of estoppel.
- It presupposes that the parties to an action can, expressly or impliedly, waive or forgo their right of appeal by any lawful agreement or compromise or even by conduct.
- The consideration for the agreement involved in a consent decree is that both the sides give up their right of appeal.
- Once the decree is shown to have been passed with the consent of the parties, Section 96(3) becomes operative and binds them. It creates an estoppel between the parties as a judgment on contest.
- Where there is a partial compromise and adjustment of a suit and a decree is passed in accordance with it, the decree to that extent is a consent decree and is not appealable. This provision, however, does not apply where the factum of compromise is in dispute or the compromise decree is challenged on the ground that such compromise had not been arrived at lawfully.
NO APPEAL IN PETTY CASES: SECTION 96(4)
Section 96(4) has been inserted by the Amendment Act of 1976.
It bars appeals except on points of law in certain cases. Prior to 1976,
Section 96 allowed a first appeal against every decree. Now, subsection (4) bars appeals on facts from decrees passed in petty suits where the amount or value of the subject matter of the original suit does not exceed ten thousand rupees, if the suits in which such decrees are passed are of a nature cognisable by Courts of Small Causes. The underlying object in enacting the said provision is to reduce appeals in petty cases. Such restrictions are necessary in the interests of the litigants themselves.
They should not been courage to appeal on facts in trivial cases.
CASE LAWS:
SECTION 97: Appeal from final decree where no appeal from preliminary decree:
- If a party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing correctness of preliminary decree in any appeal which may be preferred from the final decree.
Section -98 : Majority opinion shall prevail in case appeal is heard by 2+ judges. Section -99: An appellate Court shall not reverse a decree on the ground of misjoinder or non-joinder of parties, unless
- There is non-joinder of a necessary party, or
- It has affected the merits of the case or the jurisdiction of the Court, or
- There has been a failure of justice.
Procedure For Appeal From Original Decrees ( Order XLI):
In order that an appeal may be said to be validly presented, the following requirements must be complied with:
Rule 1
It must be in the form of a memorandum setting forth the grounds of objections to the decree appealed from;
- It must be signed by the appellant or his pleader;
- It must be presented to the court or to such officer as it appoints in that behalf;
- The memorandum must be accompanied by a certified copy of the decree;
- It must be accompanied by a certified copy of the judgment, unless the court dispenses with it; and
- The appeal shall be filed in the form prescribed, singed by the appellant, along with a true certified copy of the order.
- If the appeal is against a decree for payment of money, the court may require the appellant to deposit the disputed amount or furnish any other security.
Mrs Parwati V/s Anand Prakash, 1987
If signature are put by the advocate on such memorandum, then it is necessary to enclose Vakalatnama with it.
Rule-2
The appeal shall contain the grounds of objection under distinct heads, and such grounds shall be numbered consecutively. A ground / objection which has not been mentioned in the appeal, cannot be taken up for arguments, without the permission of court. The appellate court, however, is entitled to decide an appeal even on a ground not set forth in the memorandum of appeal.
Rule-3
Where the memorandum of appeal is not drawn up in the prescribed manner, it may be rejected or returned to the appellant for amendment. Such amendment shall be made within a fixed time as stated by the court. When the memorandum of appeal is amended judge or any officer authorised by him shall sign the amendment
In the case where court has rejected the memorandum, reasons for such rejection should be given by the court.
Rule 3 A: Condonation of Delay- This provisions was inserted by the amendment act 104 of 1976:
When an appeal is not presented with in a time specified in limitation act, then appellant must support the application with affidavit stating the facts or reasons for delay. If the court will be satisfied with the reasons stated by the appellant in the affidavit, notice shall be issued to the respondent and the matter shall be finally decided.
As observed by the Supreme Court in State of M.P. v. Pradeep Kumar2000, the object of this provision is twofold;
- To inform the appellant that the delayed appeal will not be entertained unless it is accompanied by an application explaining the delay; and
- To communicate to the respondent that it may not be necessary for him to get ready on merits as the court has to first deal with an application for condonation of the delay as a condition precedent. The provision is, however, directory and not mandatory. If the memorandum of appeal is filed without an accompanying application for condonation of delay, the consequence is not necessarily fatal
Rule 4
Rule 4 provides that where a decree proceeds upon a ground common to all the plaintiffs or defendants, any one of the plaintiffs or defendants may appeal from the whole decree, and thereupon the appellate court can reverse or vary the decree in favour of all the plaintiffs or the defendants, as the case may be. The general rule is that on an appeal by one of the several plaintiffs or defendants, an appellate court can reverse or vary the decree of the trial court only in favour of the party appealing.
Rule 4 is an exception to this principle. It confers on the court the power to make an appropriate order needed in the interests of justice by reversing or varying the decree in favour of all the plaintiffs or defendants, as the case may be. In such a case, an appeal by one is virtually treated as an appeal on behalf of all, though they may not be parties to the appeal.
Rule 4 is based on two considerations;
- To give the appellate court full power to do justice to all parties, whether before it or not; and
- To prevent contradictory decisions in the matter in the same suit
RULES 5 ,STAY OF PROCEEDINGS:
Rule 5 provides for stay of an execution of a decree or an order. After an appeal has been filed, the appellate court may order stay of proceedings under the decree or the execution of such decree. But mere filing of an appeal does not suspend the operation of a decree. Stay may be granted if sufficient grounds are established. The object underlying Rule 5 is to safeguard the interests of both, the decree holder and the judgment debtor. It is the right of the decree holder to reap the fruits of his decree. Similarly, it is the right of the judgment debtor not merely to get barren success in case his appeal is allowed by the appellate court.
This rule thus strikes a just and reasonable balance between these two opposing rights. The following conditions must, therefore, be satisfied before stay is granted by the court
- The application has been made without unreasonable delay;
- Substantial loss will result to the applicant unless such order is made; and
- Security for the due performance of the decree or order has been given by the applicant.
PRESENTATION OF APPEAL: RULES 9 & 10
Rule 9 states that the court from whose decree an appeal lies shall entertain the memorandum of appeal, shall make an endorsement thereon and shall register the appeal in register of appeals.
Under Rule 10(1) the appellate court may at its discretion require the appellant to furnish security for the costs of appeal or of the suit or of both. Where the appellant is residing out of India and does not possess sufficient immovable property within India other than the subject matter of the appeal, it is obligatory on the court to demand security in such cases.
The object of Rule 10 is to secure the respondent from the risk of having to incur further costs in an appeal which he might otherwise never recover from the appellant. An order for furnishing security may be made either before the respondent is called upon to appear and answer or afterwards on his application. Where the appellant fails to furnish security within the time granted by the court or the time subsequently extended by it, the court shall reject the appeal. The appellate court may, however, at its discretion restore an appeal which has been rejected for failure to give security for costs.
An application for restoration can be filed within thirty days from the date of the rejection of an appeal.
SUMMARY DISMISSAL: RULES 11 & 11A :
Rule 11 deals with the power of the appellate court to dismiss an appeal summarily. This rule refers to a stage after the memorandum of appeal has been filed and the appeal has been registered under Rule 9.
Rule 11 embodies a general principle that whenever an appeal is preferred, the appellate court is entitled, after hearing the appellant or his advocate, to reject the appeal summarily if prima facie there is no substance in it.
The discretion, however, must be exercised judiciously and not arbitrarily.
Such power should be used very sparingly and only in exceptional cases.
When an appeal raises triable issues, it should not be summarily dismissed.
Where the appellate court which dismisses an appeal summarily is other than a High Court, it must record reasons for doing so. However, in matters involving construction of documents, even a High Court should record reasons.
RULES 12, 14 ADMISSION OF APPEAL: If the appeal is not summarily dismissed, the appellate court shall fix a day for hearing of the appeal, and the notice of such date of hearing shall be served upon the respondent with a copy of the memorandum of appeal.
Rule 13 Appellate Court to give notice to Court whose decree appealed from—
- Where the appeal is not dismissed under Rule 11, the appellate court shall send notice of the appeal to the Court from whose decree the appeal is preferred.
- Transmission of papers to Appellate Court—Where the appeal is from the decree of a Court, the records of which are not deposited in the appellate court, the Court receiving such notice shall send with all practicable despatch all material papers in the suit, or such appears as may be specially called for the appellate court.
- Copies of exhibits in Court whose decree appealed from—Either party may apply in writing to the Court from whose decree the appeal is preferred, specifying any of the papers in such Court of which he requires copies to be made; and copies of such papers shall be made at the expense of, and given to, the applicant.
DOCTRINE OF MERGER:
Where an appeal is provided against a decree passed by the trial court and such appeal is preferred, it is the decree of the appellate court which is operative in law, which can be enforced. The doctrine of merger is based on the principle that there cannot be, at one and the same time, more than one operative decree governing the same subject matter. Hence, as soon as an appeal is decided by an appellate court, the decree of the trial court ceases to have existence in the eyes of the law and is superseded by a decree by an appellate court. In other words, the decree passed by the trial court merges with the decree of the appellate court as held In the case of Dilip v. Mohd. Azizul Haq, 2000.
PROCEDURE AT HEARING: RULES 16-21
Right to begin:
Rule 16 The appellant has a right to begin. After hearing the appellant in support of the appeal, if the court finds no substance in the appeal, it may dismiss the appeal at once without calling upon the respondent to reply.
But if the appellate court does not dismiss the appeal at once, it will hear the respondent against the appeal and the appellant shall then be entitled to reply.
Dismissal for default and restoration: Rules 17-19
If the appellant does not appear when the appeal is called on for hearing, the court may dismiss the appeal in default. The court, however, cannot dismiss it on merits. The appeal, however, cannot be dismissed although the notice has not been served upon the respondent, if the respondent appears when the appeal is called on for hearing.
Where the appeal has been dismissed for default or for nonpayment of process fees, the appellant may apply to the appellate court for the restoration of the appeal. On sufficient cause being shown, the appellate court shall restore the appeal on such terms as to costs or otherwise as it thinks fit. The court may require the counsel to go on for hearing after restoration and may refuse to restore the matter for further adjournment.
Ex parte hearing and rehearing: Rules 17 & 21
Where the appellant appears and the respondent does not appear when the appeal is called on for hearing, the appeal shall be heard exparte. If the judgment is pronounced against the respondent, he may apply to the appellate court for rehearing of the appeal. If he satisfies the court that the notice of appeal was not duly served upon him or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall rehear the appeal on such terms as to costs or otherwise as it thinks fit.
However, ordinarily, no ex parte decree should be passed by a court except on reliable evidence.
Addition of respondent: Rule 20 Where it appears to the appellate court at the hearing of the appeal that any person who was a party to the suit in the trial court but who has not been made a party to the appeal is interested in the result of the appeal, the court may adjourn the hearing of the appeal and direct that such person be joined as a respondent. Such addition of a respondent cannot be ordered after the expiry of the period of limitation for appeal, unless the reasons are recorded for doing so. The Court can also make an order as to costs.
The object of Rule 20 is to protect parties to the suit who have not been made respondents in the appeal from being prejudiced by modifications being made behind their back in the decree under appeal
CROSS OBJECTIONS: RULE 22
The expression “cross objection” expresses the intention of the legislature that it can be directed by the respondent against the appellant. One cannot treat an objection by a respondent in which the appellant has no interest as a cross objection. The appeal is by the appellant against a respondent, the cross objection must be an objection by a respondent against the appellant. Rule 22 is a special provision permitting the respondent who has not filed an appeal against the decree to object to the said decree by filing cross objections in the appeal filed by the opposite party. Filing of cross objections by the respondent, however, is optional and voluntary. The provision is permissive and enabling and not peremptory or obligatory. Where the suit is partly decided in favour of the plaintiff and partly in favour of the defendant and the aggrieved party (either the plaintiff or the defendant) files an appeal, the opposite party may adopt any of the following courses:
- He may prefer an appeal from that part of the decree which is against him. Thus, there may be two appeals against the same decree; one by the plaintiff and the other by the defendant. They are known as “cross appeals”. Both these appeals will be disposed of together. ii. He may not file an appeal against the part of the decree passed against him but may take objection against that part. Such objections are called “cross objections”.
- Without filing a cross appeal or cross objection, he may support the decree
- on the grounds decided in his favour by the trial court; or
- even on the grounds decided against him
Who may file cross objections?
Cross objections can be filed by the respondent
- if he could have filed an appeal against any part of the decree; or
- if he is aggrieved by a finding in the judgment, even though the decree is in his favour because of some other finding.
Against whom cross objections may be filed :
Ordinarily, cross objections may be filed only against the appellant. In exceptional cases, however, one respondent may file cross objections against the other respondents.
When cross objections may be filed ?
The provisions of Order 41 Rule 22 contemplate right to file cross objections only when an appeal is filed and also when such appeal is admitted by the appellate court and notice is issued on the respondent. A stage of filing cross objections arises only when an appeal is admitted and the court directs notice to be issued to the respondent. No cross objections, hence, can be filed if no appeal is filed by the appellant or an appeal is filed but has not been admitted. Mere posting of preliminary hearing of an appeal is not enough. Similarly, prior to service of notice of hearing of appeal by the court, no cross objections would lie. That, however, does not make cross objections suffer from legal infirmity.
Cross appeal whether may be treated as cross objections: An appeal filed beyond the period of limitation may be treated as cross objections under Order 41 Rule 22. A cross appeal may be treated as cross objection only if such appeal is filed after the other appeal and not if it is filed before that appeal.
Form
Cross objections shall be in the form of a memorandum of appeal and they should be served on the party affected thereby or his pleader. A respondent can file cross objections as an indigent person.
Limitation
Cross objections can be filed within one month from the date of service on the respondent or his pleader of the notice of the date fixed for hearing of the appeal. The appellate court may, at its discretion, extend the period within which cross objections can be filed. The discretion, however, must be exercised judicially and on sufficient cause for delay being shown and is open to review by the superior court.
Appeals from appellate decree SECOND Appeals (Sec 100-103, Order 42):
A second appeal lies against the decree of the first appeal. A second appeal may be made only to the High Court. Restrictions exist on the second appeal because allowing new facts to be introduced, or new arguments to be raised would undermine the previous judicial processes. Therefore, the only grounds for a second appeal is that there is a substantial question of law.
SECTION 100 Section 100 of the Code provides filing of second appeal in the High Court. It reads as under:
- Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
Meaning of substantial question of law:
In Santosh Hazari v. Purushottam Tiwari (By L.Rs), AIR 2001 SC 965,
SC observed- o Section 100 of Code as amended in 1976 restricts the Jurisdiction of High Court to Hear the Second Appeal only on `Substantial Question of Law involved in the case’. o Respondent is at liberty to show that substantial questions of law are not involved.
o The phrase “Substantial Question of Law” means,
- Question of law which must be debatable,
- Not previously settled by law of land or binding precedent
- And must have material bearing on the decision of the case, if answered either way.
- An appeal may lie under this section from an appellate decree passed ex parte.
- In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
- The High Court must be satisfied that the case involves a substantial question of law;
- The memorandum of appeal must precisely state such question;
- The High Court at the time of admitting the appeal should formulate such question;
- The appeal shall be heard only on that question;
- At the hearing of the appeal, the respondent can argue that the case does not involve such question
Provided that The High Court is, however, empowered to hear the second appeal on any other substantial question of law, not formulated by it, if it is satisfied that the appeal involves such question. The High Court, however, has to record reasons for doing so.
Case Laws :
Mahindra & Mahindra Ltd. v. Union of India & Anr 1979 , the court observed that “Under the proviso, the Court should be ‘satisfied’ that the case involves a substantial question of law and not a mere question of law. The reason for permitting the substantial question of law to be raised should be recorded by the Court.”
Further, the court clarified in Ramji Bhagala v. Krishnarao Krirao Bagra that an appellate court cannot partly admit and partly reject a second appeal under
Section 100 and Section 101. It should either admit it wholly or reject it wholly.
Section-100A : “No Further Appeal in Certain Cases” –
Notwithstanding anything contained in any letters patent for any High Court or in any other instrument having the force of law.
- Where any appeal from an original or appellate decree or order is decided by a single judge of High Court,
- No further appeal shall lie from the judgment and decree of such single Judge :
Sec-101 of C.P.C. lays down that no second appeal shall lie except on the ground stated in Sec-100 and Sec-100A.
Sec-102 : No second appeal shall lie from any decree,
- When amount or value of subject matter does not exceed Rs 25000/-.
Appeals from Orders (Order XLIII) and Sec 104 to 108 Order has been defined as “the formal expression of any decision of a civil court which is not a decree”. Thus, an adjudication of a court which does not fall within decree, is an order. Appeal can be filed only against those orders which are made appealable.
Section 104 (Appeals from Orders) and Order 43 of the CPC deals with such orders from which appeal lies.
Definition : Sec-104 : Orders from which appeal lies :
- Appeal from orders would lie from following orders on ground of defect or irregularity in law – and from no other orders –
- An order for compensatory costs in respect of untrue or vexatious claims or defenses (Section 35A).
- An order under section 91 or 92 refusing leave to institute suit on public nuisances and other wrongful acts affecting the public
- In any suit in which
- An arrest or attachment has been effected or
- A temporary injunction granted under Section 95, AND
- Where the aggrieved feels that arrest or attachment is on insufficient grounds.
- An order inflicting a punishment of fine or arrest or detention, except where such arrest or detention is in execution of a decree.
- any order from which an appeal is expressly allowed by rules:
However, no appeal shall lie from following orders –
- 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 Rs 3,000/-
- from any order passed in appeal under section 100.
- No appeal shall lie from any order passed in appeal under this section.
Section -105 Other Orders :
- Save as otherwise expressly provided,
- No appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, o Any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
- Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, o He shall thereafter be precluded from disputing its correctness.
Appeals to Supreme Court (Sections 109 and 112, Order 45)
Appeals to India’s highest jurisdictional body can be made if the former considers the case to be appropriate for an appeal to the Supreme Court or when a special leave is granted by the Supreme Court itself. Appeals can be filed to the Supreme court by filing a petition with the court which enacted the decree, upon which the petition would be heard and disposed of within a period of sixty days.
Petitions submitted for this purpose must state the grounds of appeal. Also, it must include a plea for the issuance of a certificate stating that the case involves a substantial question of law which needs to be decided by the Supreme Court. The opposite party will be provided with an opportunity for raising any objections against the issue of such certificate. The petition would be disposed of if the applicant is denied the certificate. If accepted, the appellant would be required to deposit the required security and costs within a prescribed time-frame. After the applicant performs the above obligations, the court from whose decision an appeal is preferred shall declare the appeal as admitted, an intimation of which will be addressed to the respondent.
Further to this, the jurisdictional body forwards a precise copy of the record under seal and furnishes the copies of such papers in the suit. The pendency of an appeal to the Supreme Court does not affect the right of the decree-holder to execute the decree unless the court otherwise directs. The court may stay execution after taking sufficient security from the appellant or it may allow the decree to be executed after taking sufficient security from the respondent Order 45 C.P.C deals with procedure in appeal before Supreme Court. Section 109 : An appeal shall lies to Supreme Court, from any judgement, decree or final order in a civil proceeding of High Court, if the High Court certifies :-
- A judgement, decree or final order must have been passed by the HighCourt
- A substantial question of law of general importance must have been involved in the case
- In the opinion of the High Court, the said question needs to be decided by the Supreme Court.
Section -112 :
- Nothing contained in this Code shall be deemed–
- to affect the powers of the Supreme Court under Article 136 (special leave to appeal) or any other provision of the Constitution, or
- to interfere with any rules made by the Supreme Court for the presentation of appeals.
- Nothing herein contained applies to any matter of criminal proceedings in High Courts.
Order 45 of code of civil procedure regarding Appeal to Supreme Court: There are total 17 rules out of which some rules have been repealed. Some of the important rules are as follows :
Appeals by Indigent Persons (Order XLIV)
Any person who is not capacitated to remit the fee required to file the memorandum may file an appeal as an indignant person. If the court declines the application of a person to appeal in this manner, it may necessitate the applicant to remit the required court fee within a prescribed time frame.
In Ram Sarup vs The Union Of India And Another 1965 , the court held that at the stage of hearing of an application, the question to be considered by the court is whether the applicant is an indigent person. If he is, the application will be allowed and the memorandum of appeal will be registered. If he is not, the application will be rejected.
The period of limitation for presenting an application for leave to appeal as an indigent person to the High Court is 60 days and to other courts is 30 days. The limitation starts from the date of the decree appealed from.
Limitation period of Appeal under CPC under Limitation Act 1965 : Under schedule-I of Limitation Act, limitation period for Appeal under code of civil procedure has been provided under serial No. 116 as follows :
1. To a High Court from any decree or order; | Ninety days | From the date of the decree or order. |
2. To any other court from any decree or order. | Thirty days | From the date of the decree or order. |
CONCLUSION:
The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an application or petition to higher Court for the consideration of the decision of lower court. It is proceeding for review to be carried out by higher authority of decision given by lower one. In is an creature of statute and right to appeal is neither an inherent nor natural right. As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesn’t arise when adverse decision is given, but on the day suit is instituted i.e. proceedings commenced, right to appeal get conferred. Thus, it can be said the Right to appeal is appeal substantive right vested in parties from the date suit instituted.
