Sie sind auf Seite 1von 6

APPEALS

RIGHT TO APPEAL: Appeal is not defined in the code, however as per the dictionary meaning
it may be understood as Judicial examination of the decision of inferior court by the higher
court. As Mulla, There is no definition of appeal in the Code of Civil Procedure, but their
Lordship have no doubt that application by a party to an appellate court, asking to set aside or
reverse a decision of a subordinate court, is an appeal within the ordinary acceptance of the
term.
Nagendra Nath V. Suresh Chandra, AIR 1932 PC 165 (167)
It is a complaint made to the higher court that the decree passed by the
lower court is unsound and wrong.
Attorney-General V. Sillem, (1864) 10 HLC 704 (715)
It is a right of entering a superior court and invoking its aid and
interposition to redress an error of the court below.
In short, appeal may be understood as the right of the parties to approach the higher court in case
it seems to them that proper justice has not been done with them based on the fact and the
evidence adduced in the court of law.
However, a right to appeal is not a natural or inherent right, it is a creature of statute and there
cannot be any right of appeal unless it is expressly provided in any statute. Further, it is a
substantive right not merely a procedural right. This vested right accrues to the litigant on and
from the date the lis commences, although it will actually be exercised when any adverse
judgment will be pronounced, and hence such rights are governed by the law prevailing at the
time of institution of the suit or proceeding not the law prevailing at the time of decision or at the
time of filing the appeal. This vested rights can be taken away only by subsequent enactment, if
it so provides expressly or by necessary implications, not otherwise.
It is further important to understand that this right is the creation of statute and hence condition
may be imposed by the statute for the exercise of this right. It is why, the forum of appeal may be
changed by the statute and the litigant has no right to decide the forum of appeal.
Anant Mills Co. Ltd. V. State of Gujarat, AIR 1975 SC 1234
Khanna J. said: It is well-settled by several decisions of this court that
the rights 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.
Comparisons of right to suit and right to appeal: There is a fundamental difference between
suit and appeal and the same is being explained properly by J. Chandrachud in

Ganga Bai V. Vijay Kumar, AIR 1974 SC 1126


There is a basic distinction between the right of suit and the right
of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the
suit is barred by statute one may, at ones peril, bring a suit of ones choice. It is no answer to a
suit howsoever frivolous the claim, that the law confers no right to sue. A suit for its
maintainability requires no authority of law and it is enough that no statute bars the suit. But the
position in regard to appeals is quite the opposite. The right of appeal inheres in no one and
therefore an appeal for its maintainability must have the clear authority of law.
An appeal is a continuation of suit and hence, decree passed by an appellate court would be
construed as decree passed by the Court of first instance. In
Dayawati V. Inderjit, AIR 1966 SC 1423
An appeal has been said to be the right of entering a superior
Court and invoking its aid and interposition to redress the error of the Court below. The only
difference between a suit and an appeal is that an appeal only reviews and corrects the
proceeding in a cause already constituted but does not create the cause.
It is obvious that when an appeal is made, the appellate authority can do one of the following
three things, namely

It may reverse the order under appeal;


It may modify the order; and
It may merely dismiss the appeal and thus confirm the order of the lower
court without any modification.

In all three cases after disposal of the appeal by the appellate authority, the order so passed by the
authority will be operative irrespective of the fact that this order has reversed, modified or
confirmed the decision of the lower court. In fact it is the appellate decision alone which subsists
and operative as well as capable of enforcement.
After referring the various decision on the subject, the Supreme Court laid down the following
principles relating to the right of appeal in
Garikapati V. Subbiah choudhary, AIR 1957 SC 540
1. That the legal pursuit of a remedy, suit, appeal and second appeal are really
but steps in a series of proceedings all connected by an intrinsic unity and
are to be regarded as one legal proceedings.
2. The right of appeal is not just a matter of procedure but it is a substantive
right.
3. The institution of the suit carries with it the implication that all rights of
appeal then in force are preserved to the parties thereto till the rest of the
career of the suit.

4. The right of appeal is a vested right and such a right to enter a superior
Court accrues to the litigant and exists on and from the date the lis
commences and, although it may be actually exercised when the adverse
judgment is pronounced, such right 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 filing of the appeal.
5. This vested right of appeal can be taken away only by a subsequent
enactment, if it is so provided expressly or by necessary intendment and
not otherwise.
APPEALS FROM ORIGINAL DECREES
Section 96
(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 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 Cause, when the amount or value of the subject-matter of
the original suit does not exceed three thousand rupees.
As per section 96(1) of the code right to appeal is recognized for the decree passed by the court
exercising the original jurisdiction, however nothing has been mentioned, who may file an
appeal but before an appeal can be filed, two important conditions must be satisfied as per this
section
1. The first, that the subject matter of the appeal must be a decree, i.e, a conclusive
determination of the right of the parties with respect to the all or any of the matter in
controversy in the suit; and
2. The party appealing must be adversely affected by the decision of the decree.
Now, the second condition merely state that the party filing the appeal should be adversely
affected by the decision of the decree, however it is silent about that can a person who is not the
party to the suit so decided come up with an appeal if he/she is adversely affected by the decision
of the suit.
The answer of the question was given in the case State of Punjab V. Amar Singh. What is
material as per the section is that one who is adversely affected by the judgment may appeal the
judgment in the higher court. And hence there lies no doubt with respect to the person adversely
affected and are parties to the suit. As far as the person who is not the party to the suit may
appeal if he/she is adversely affected. What adversely affected mean; a decision cannot be said to
be adversely affect a person unless it will operate as res judicata against him in any future suit.

Based on the above discussion, the following principle may be considered to determine who may
appeal:
1. A party to the suit who is aggrieved and adversely affected by the decree, or if such party
is dead, his legal representative,
2. A person claiming under a party to the suit or a transferee of the interest of such party,
who so far as the interest is concerned, is bound by the decree, provided his name is
entered on the record of the suit.
3. A guardian ad litem appointed by the court in a suit by or against a minor
4. Any other person, with the leave of the court, if he is adversely affected by the decree.
However, if a party agrees not to appeal or waives his right to appeal by entering into an
agreement, provided the agreement is valid otherwise. Whether a party has waived his right of
appeal depends upon the facts and circumstances of each case. Further, it is very important to
understand that by availing the benefit of the decree party submit himself to the decree and later
he cannot question the legality of the decree.
Dexters Ltd. V. Hill Crest Oil Co. (1926) 1 KB 348
As Scrutton, L.J. observed: 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 the judgment as being good and then appeal
against it as being bad.
Deji saheb V. Shankar Rao, AIR 1956 SC 29 (30)
Finally, the vested rights of appeal is destroyed if the court to which an
appeal lies is abolished together without any forum being substituted in its place.
Section 96(2): Appeal against ex-parte decree
An appeal against ex parte decree may lie in the superior court, wherein the superior court may
look into the question of propriety or otherwise of the ex-parte decree passed by the trial court.
Section 96(3): No Appeal against Consent Decree
This section recognizes the principle of estoppel, it proposes 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 side give up their right to appeal.
This principle of estoppel is recognized for partial compromise decree as well, that is if a decree
is reached on a partial compromise this principle will be applicable for that portion of the decree
however, this provision is not applicable when very factum of the compromise is disputed and
even in a situation when the compromise decree is challenged on the ground that it had not ben
arrived on the lawful ground.

FORM OF APPEALS: RULES 1-4


Memorandum of appeals:
Memorandum of appeals contains the grounds on which judicial examination is invited. To see
the applicability of the rules of the court and to judge the limitation, it is essentials that
memorandum of appeals to be filed.
Order 41, Rule 1 & Jagat Dhish V. Jawahar Lal, AIR 1961 SC 832: In order for an appeal
to be said validly represented, the following requirements must be complied with
I.
II.
III.
IV.
V.
VI.

It must be in the form of memorandum setting forth the grounds of the 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 official as it appoints in that behalf.
Memorandum must be accompanied by the certified copy of the decree
It must be accompanied by certified copy of the judgment unless the court
dispenses with it; and
Where the appeal is against the money decree, the appellant must deposit the
decrial amount or furnish the security in respect thereof as per the direction of the
court

So, memorandum of appeal must contain the ground of objection concisely without any
argument in support thereof. In appeal, only those grounds can be set forth which have already
been included in adversely decreed suit. However, it never mean that no new ground can be
taken by the appellate court. As per Rule 2 of order 41, appellant can come up with a new
ground in appeal provided the leave for same has been granted by the court.
As a general rule, the appellate court is to check the validity of the decree passed by the trial
court on the ground set forth in the suit and the evidence adduced thereby however in exceptional
situation wherein the party could not come up with the ground or evidence at the trial stage
because of lack of knowledge and circumstantial situation. Then in such a situation the court may
grant the leave to include the new grounds as well as the evidence.
Rule 4 of Order 41 provide for the situation when one or more than one but not all the appellant
prefer to appeal against the adverse decree. There may be two situations, first if the order coming
out of an appeal is of such a nature that it can be implemented against the person who appealed
without changing the very basis of the earlier decision then it will be applicable to the person
who prefer appeal else it will be applicable to all the aggrieved party irrespective of the fact
whether they appealed or not.
In other words, it is because if the said decree coming out of an appeal is not applied to all the
aggrieved party there will be two different decree for the aggrieved parties and hence the very
basis of the conclusiveness of the decision will not be reached which will be detrimental for the
public to have faith in the judicial system

Forum of appeal
As already been discussed that the party may have right to appeal as granted by the statues but it
never mean that they have right to choose the forum also. As said by Supreme Court in
Gopalkrishna V. Meenakshi, AIR 1967 SC 155 the right to appeal is undoubtedly a substantive
right and its deprivation is a serious prejudice. But there is no vested rights in procedure. Hence,
no one can claim that ones appeal should be heard by a particular court. Change in forum of
appeal, therefore, cannot be said to cause prejudice to a party.
Presentation of appeal: Rules 9 & 10
Rule 9 as amended by the amendment act 1999, it is the court from whose decree an appeal is
preferred shall entertain the memorandum of appeal, shall make an endorsement and shall
register the appeal in the register of appeal.
However, this provisions brings very vague, ambiguous, and unclear situation. What if an
appellate court receive an appeal which has not been endorsed by the trial court or how to deal
with a situation when the trial court are not endorsing the application within reasonable time.
These are the few question that has not been properly taken care of by the amendment. Earlier
when an appeal was preferred the same was being communicated to the trial court but with
deletion of rule 13, now there is no specific or express position regarding the transmission of
record by to the trial courts.
Limitation:
The code does not prescribes for the period of limitation for the filing of appeal. However,
Limitation Act 1963 provides for the period of appeal, and it says the appeal may lie in the High
Court within 90 days and in any other appellate Court within 30 days from the date of decree.