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DR.

RAM MAHOHAR LOHIYA NATIONAL LAW UNIVERSITY

CODE OF CIVIL PROCEDURE


(FINAL DRAFT ON)

APPEAL FROM ORIGINAL DECREES


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SUBMITTED BY: UNDER THE GUIDANCE OF:

Jyoti Chaudhary Mr. Vipul Vinod


Roll No.- 66 Assistant Professor
Section A Dr. Ram Manohar Lohiya
B.A. LLB (Hons.), Semester Vi National law University

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Acknowledgement

I, Jyoti Chaudhary, a Second Year Law scholar at Dr. Ram Manohar Lohiya National Law
University, Lucknow, am highly grateful towards our lecturer Mr.Vipul Vinod, who gave me the
opportunity to study this topic and because of his help and support, this project has reached its
completion.

I would also like to thank the library staff of Dr.Ram Manohar Lohiya National Law University,
Lucknow, for their patient and diligent support in the making of this project.

I would like to thank my parents who encouraged me to work hard and motivated me to give my
best. Last, I would like to acknowledge my friends who helped me in the research needed for this
project.

I have tried my best to include all the aspects discussed in the given case, yet, ignorance or any
mistake is deeply apologized.

Thanking you,

Yours sincerely,

Jyoti Chaudhary.

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INDEX

1. Introduction...4
2. Section 96 of CPC.4
3. Right to Appeal: A Statutory and Substantive Right5
4. Case Laws..7
5. Conclusion..8
6. Bibliography9

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INTRODUCTION

The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an
application or petition to appeal higher Court for are consideration of the decision of appeal
lower court. It is appeal proceeding for review to be carried out by appeal higher authority of
appeal decision given by appeal lower one. An appeal is appeal creature of statute and right to
appeal is neither an inherent nor natural right.

Appeal person aggrieved by appeal decree is not entitled as or right to appeal from decree. The
right to appeal must be given by statute. Section 9 confers on appeal litigant, independently of
any statute, appeal right to institute appeal suit of civil nature in appeal court of law. So he has
appeal right to apply for execution of appeal decree passed in his favour, but he has no right to
appeal from appeal decree or order made against him, unless the right is clearly conferred by
statute. Section 96 of the Code gives appeal right to litigant to appeal from an original decree.
Section 100 gives him appeal right to appeal from an appellate decree in certain cases. Section
109 gives him right to appeal to the Supreme Court in certain cases. Section 104 gives him right
to appeal from orders as distinguished from decrees.

SECTION 96 OF CODE OF CIVIL PROCEDURE

Appeal is provided under Section 96 of the CPC, which says that except as provided in CPC or
any other law for timbering in force, an appeal shall lie from any decree passed by court
exercising Original Jurisdiction to appeal Court authorized to hear the appeal from the decision
of the Court i.e. Section 96 makes it clear that no appeal lies from appeal decree passed by the
Court with the consent of the parties. However, an appeal may lie fro original decrees which is
passed ex-parte i.e. without hearing of the parties. No appeal lies against the decree passed by
small cause court, if the value of the subject-matter does not exceed Rs. 10,0004 except on
appeal question of law. Ordinarily, only appeal party to the suit adversely affected by appeal
decree or any of his representatives in interest may file an appeal. However, appeal person who
is not appeal party to the decree or order may prefer an appeal with leave of the court, if he is

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bound or otherwise prejudicially affected by such decree or odder, as in such an eventuality he
may be said to be an aggrieved person.

RIGHT TO APPEAL: A STATUTORY AND SUBSTANTIVE RIGHT

Right to appeal is statutory and substantive right. It is not merely appeal procedural right.
Statutory right means must be conferred by statute unless it provides there wont be any right to
appeal. While right to institute a suit is not conferred by law. The right is inherent. But right to
appeal has to be conferred by appeal statute. Where statute provides for right to appeal, it may
constitute appeal machinery where shall the appeal lie. While the same isnt true for right to sue.
A civil suit has to be filed subject to condition of jurisdiction. An appeal is appeal substantive
right. Right to appeal cant be taken retros0pectively because general rule of specific
interpretation. Substantive law operates prospectively unless an express statute provides so.

When does right to appeal accrue to any person?

As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesnt
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. The right to appeal can be waived
by a party under a legal and valid agreement, and if a party has accepted the benefits under the
decree, he is stopped from challenging its legality. The right to appeal also stands destroyed if
the court to which appeal lies is abolished altogether without any forum being substituted in its
place.

The Court hearing the appeal, has the power to implead a person as respondent who has not been
so impleaded where it appears to the court that he may be a person and interested in the result of
the appeal.

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Appeal from final decree when no appeal from preliminary decrees

In cases where preliminary and final decree are required to be passed, and if a party aggrieved by
preliminary decree does not prefer an appeal, he cannot be permitted to raise disputes about
correctness of such decree in any appeal against final decree.

An appeal is a constitution of proceedings. The appellate court can re-examine questions of fact
and law and May even re-appreciate evidence. The powers of the first appellate court are co-
extensive with those of the civil court of original jurisdiction. However, there may be certain
self-imposed restraints in the exercise of such powers. However they are discretionary and do not
fetter jurisdiction of the courts. Unlike revision or review where limited grounds of interference
are available, the appellate proceedings offer a much wider scope in deciding about correctness
of the judgments of the courts below. First appeal may be filed on a question of fact or on a
question of law or on a mixed question of fact and law may arise in a case. In determining the
appellate forum, the value of the subject matter of the suit is material and not the claim in appeal.

The judgment of the appellate court should state the points for determination, the decision
thereon, the reasons fro the decision, and the relief to which the appellant is entitled. The
appellate court should state its own reasons; thus it is not enough to say in the judgment, I
concur with the decision of the Munsiff has given on each point. If this is done, the judgment
will be set aside by the High court in second appeal. After the judgment is pronounced, the
decree will be drawn up.

Who can appeal?

1. Any party to the suit, who is adversely affected by the decree or the transferee of interest of
such party has been adversely affected by the decree provided his name was entered into record
of suit.

2. An auction purchaser from an order in execution of a decree to set aside the same on the
grounds of fraud.

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3. Any person who is bound by the decree and decree would operate res judicata against him.

CASE LAWS

1) Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316

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.

2) Sadhu Singh v. Dharam Dev 1981 SCC 510

In this case, in Punjab there used to appeal right of preemption and in Muslim Personal Law, if
appeal person wants to sell immovable property, he must ask the person who have adjoining
property.

In 1973, an Act was passed, Punjab Premption Repeal Act, 1973 by which premptory right was
abolished. Provision: No Court shall pass appeal decree in any preemption suit. In this case,
decree has already been passed by Court of Original jurisdiction and matter was pending in
appeal.
The issue before the Court was that: Whether the appellate Court can pass appeal decree?
It was held that the lower Courts decree would get merged into appellate Courts decree. Where
decree is drawn on appellate order and once act passed, no preemptory right. In this proceeding
the appellate Court is deprived of power to pass appeal decree.

Conflicting situation when legislation is passed - There may be two situations:

1. A right to appeal exist on the date of institution of suit and subsequent law passed taking right
to appeal.

2. No right to appeal on the date of institution of suit but subsequently law passed granting right
to appeal.

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3) State of Bombay v. Supreme General Films and Exchange AIR 1960 SC 980

In this case it was held that right to appeal cannot be taken away, if available on the date of
institution of suit and subsequently law passed taking away right to appeal.

4) Delhi Cloth & General Mills v. I T Commissioner AIR 1927 PC 242

Where right to appeal is created subsequently shall not be available to a litigant if the suit was
instituted prior to such creation.

5) Veeraya v. Subbia Choudhry AIR 1957 SC 540

Right to appeal get vested on the date suit is instituted. A new right to appeal gets created cant
be availed by the parties to a proceeding which commenced earlier during the creation of new
rights.

CONCLUSION

The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an
application or petition to appeal higher Court for are consideration of the decision of appeal
lower court. It is appeal proceeding for review to be carried out by appeal higher authority of
appeal decision given by appeal lower one. In appeal is appeal creature of statute and right to
appeal is neither an inherent nor natural right.

Appeal person aggrieved by appeal decree is not entitled as or right to appeal from decree. The
right to appeal must be given by statute. Section 9 confers on appeal litigant, independently of
any statute, appeal right to institute appeal suit of civil nature in appeal court of law. So he has
appeal right to apply for execution of appeal decree passed in his favour, but he has no right to
appeal from appeal decree or order made against him, unless the right is clearly conferred by
statute. Section 96 of the Code gives appeal right to litigant to appeal from an original decree.
Section 100 gives him appeal right to appeal from an appellate decree in certain cases. Section

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109 gives him right to appeal to the Supreme Court in certain cases. Section 104 gives him right
to appeal from orders as distinguished from decrees.

As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesnt
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.

BIBLIOGRAPHY

Civil Procedure with Limitation Act, 1963, C.K.Takwani


The Code of Civil Procedure, Mulla
Manupatra
www.legalservicesindia.com

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