APPEALS

Section – 96 Appeals From Original Decrees

l. 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 to 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.

Principles:
 Appeal is substantive & statutory right
 Appeal is continuance of suit
 Decree of original / subordinate court merges into decree of appellate court
 Mere filing of appeal is not a stay
 No divergent from original plea/case
 No new plea which requires investigation
 No urging the grounds already abandoned
 Appeal is filed against Decree not findings. Where no decree was drawn up,
revision would lie.
 One appeal against consolidated judgment in two consolidated suits

Who Can File Appeal?

1. Parties to the suit

 Plaintiffs & Defendants
 Co-plaintiffs & Co-defendants

2. Legal Representatives of Parties

 After being impleaded as party in suit
 Appeal cannot be filed on behalf of dead person
 What if party dies soon after pronouncement of judgment?

3. Aggrieved Person
 Transferee pedente lite, if impleaded as party in suit

4. Person Claiming under Party

 Assignee

Ex-parte Decree:
1. Remedies against Ex-parte Decree
i. Section 12(2), CPC
ii. Application under Order IX rule 13, CPC
iii. Review u/s 114
iv. Appeal u/s 96(2)
2. Availing one remedy will make other remedies infructuous
3. Section 5 & 14 Limitation Act won’t apply for excluding period spent on one
such proceedings

Consent Decree:
Meaning of Consent of Parties:
 Party entered into Compromise
 Party agreed to be bound by decision of a judge
 If decree is half consented than appeal can be filed against the other half of
decree

No appeal shall lie against consent decree

Forum of Appeal:
 Higher forum
 Depends on the value of suit for the purposes of court fee and jurisdiction
 Does not depend upon decretal amount
 Change in value during suit will than determine forum of appeal

Limitation:

Article 151, 152, 156

 APPEAL FROM PRELIMINARY & FINAL DECREE

Section 97 – Appeal from Final Decree (where no appeal from preliminary

decree)
Where any party aggrieved by a preliminary decree passed after the
commencement of this Code does not appeal from such decree, he shall be
precluded from disputing its correctness in any appeal which may be preferred
from the final decree.

 Appeal from final decree shall not include issues pertaining to or happened
before preliminary decree
 If preliminary decree falls, final decree shall fall too
 If preliminary decree is varied, final decree will be vacated
 Appeal against preliminary decree, if decided after final decree is passed.
Appeal against preliminary decree shall not abate or infructous
 Appeal against preliminary decree can be filed even after passage of final
decree, subject to limitation
 If limitation allows one appeal can be filed against both preliminary and
final decree

Section – 98 Decision Where Appeal Heard By Two or More Judges

(l) Where an appeal is heard by a Bench of two or more judges. The appeal shall be
decided in accordance with the opinion of such judges or of the majority (if
any) of such Judges.

(2)Where there is no such majority which concurs in a judgment varying or

reversing the decree appealed from, such decree shall be confirmed:

Provided that where the Bench hearing the appeal is composed of two Judges
belonging to a Court consisting of more than two Judges, and the Judges
composing the Bench differ in opinion on a point of law, they may state the
point of law upon which they differ and the appeal shall then be heard upon that
point only by one or more of the other Judges, and such point shall be decided
according to the opinion of the majority (if any) of the Judges who have heard
the appeal, including those who first heard it.

(3) Nothing in this section shall be deemed to alter or otherwise affect any
provision of the letters patent any High Court.].

Section 99 – Mere Irregularity doesn’t Vitiate Judgment

No decree shall be reversed or substantially varied, nor shall any case be
remanded, in appeal on account of any mis-joinder of parties or causes of action or
any error, defect or irregularity in any proceedings in the suit, not affecting the
merits of the case or the jurisdiction of the Court

Cross Ref. Section 105, CPC

Examples:
 Mis-joinder of parties or causes of action
 Defective signatures or verification
 Irregularity in recording compromise
 APPEALS FROM APPEALATE DECREES

Section 100 - APPEALS FROM APPEALATE DECREES

l. Save where otherwise expressly provided in the body of this Code or by any
ocher 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 a High Court on any
of the following grounds, namely:

(a) The decision being contrary to law or to some usage having the force of law.
(b) The decision having failed to determine some material issue of law or usage
having the force of law
(c) A substantial error or defect in the procedure provided by this Code or by
any other law for the time being in force, which may possibly have produced
error or defect in the decision of the case upon the merits.

Section 101 – Second Appeal on No Other Grounds

No second appeal shall lie except on the grounds mentioned in section 100

Principles:
 1st appeal is not restricted to any particular ground or grounds. Whereas, 2 nd
appeal is restricted to grounds mentioned in Section 100
 If part of judgment was not challenged in 1st appeal, it cannot be allowed to
be raised in 2nd appeal
 2nd appeal cannot be filed against judgment passed in revisional jurisdiction
as it won’t be an appellate decree
 High Court will not interfere in question of facts

A. Grounds of Second Appeal:

1. Decision Being Contrary to Law:

 Statutory law and principles of law

a. Question of Law
2nd appeal competent

b. Mixed Question of Law & Fact

2nd appeal competent if question of law is attached with fact

c. Question of Fact
2nd appeal not competent if only and merely facts are involved

Exception:
Section 103 – Power of High Court to Decide Issues of Fact:
i. Issue of fact necessary for the disposal of the appeal which has not
been determined by the lower appellate Court or
ii. Issue of fact has been wrongly determined by such Court by reason
of any illegality, omission, error or defect.

Example:
o Findings on facts without reasoning
 o Findings against documentary evidence

 Principles of Law

1. Decision Not Based on Evidence

o Decision on inadmissible evidence
o Decision on not based on any evidence

2. Judicial Exercise of Jurisdiction

3. Decision Based on Misconception

4. Court’s Failure to Draw Inference

 Presumption of fact is inference of fact

5. Court Acts without Jurisdiction

2. Decision Being Contrary to Usage Having Force of Law:

Usage is question of fact, but that fact but be established from the facts and
evidence of case, otherwise high court will not interfere.

3. Substantial Error or Defect in the Procedure, Effecting Merits:

i. Such defect must be regarding procedure

ii. Procedure which is of substantial nature
iii. Defect affecting the merits of the case

Example:
o Non framing of material issue
o Wrong placing of onus of proof

B. Rules of Plea

1. New Plea
Plea is mentioned in pleadings
New plea is not allowed in 2nd appeal

2. New Plea of Law

Allowed

C. Bar on Second Appeal

Section 102 – No Second Appeal in Certain Cases

 Suit of the nature cognizable by Courts of Small Causes
 Amount less than Rs. 25000/-

D. Limitation:

Article 156, Limitation Act

 POWERS OF THE APPELLATE COURT

Section 107: Powers of the Appellate Court

1. Subject to such conditions and limitations as may be prescribed, an Appellate
Court shall have power:

(a) to determine a case finally;

(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken. (O. 41 rule
27)

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall
perform as nearly as may be the same duties as are conferred and imposed by
this Code on Courts of original jurisdiction in' respect of suits instituted therein.
 APPEALS TO THE SUPREME COURT

Section 109 –

An appeal from a judgment decree or final order of a High Court shall lie to the
Supreme Court

(a) if the amount or value or the subject-matter or the dispute in the court of first
instance was and also in appeal is (unless varied by an Act or Parliament) fifty
thousand rupees or upward and the judgment decree or final order appealed
from has varied or set aside the judgment decree or final order of the Court
immediately below; or

(b) it the judgment, decree or final order involves directly or indirectly, some claim
or question respecting property of like amount or value and the judgment,
decree of final order appealed from has varied of set aside the judgment decree
or final order of the Court immediately below; or

(c) if the High Court certifies that the case involves a substantial question of law as
to the interpretation of the Constitution.

A. Essentials:

1. Appeal Against Judgment, Decree or Final Order

Judgment:
Final adjudication of the rights of the parties concluding the trial and disposes
of the proceedings

Decree:
The operative part of the Judgment

Final Order:
Order is final if it finally disposes of the rights of the parties. If proceedings are
still proceed to determine rights of the parties then that’s an interlocutory order

2. Value of Subject-Matter In Court of First Instance was Fifty Thousand Rupees

Or Upward

 Amount or Value at the time of filing of suit (Suit Valuation Act, 1887 &
Court Fee Act, 1870)

3. Value Of The Subject-Matter In Appeal Is Fifty Thousand Rupees Or Upward

 Value at the date of Judgment, Decree or Final Order

4. Directly or Indirectly, Some Claim or Question Respecting Property of like

Amount or Value

 Word “property” not only relates to subject matter property, but any
property which may be directly or indirectly affected by the decision
  Value of claim must be 50000 or up
e.g., suit for partition of property

5. Lower Judgments at Variance

 Judgment, Decree or Final Order Appealed from has varied of set aside the
judgment decree or final order of the Court immediately below

6. Decision of Affirmance:

 High court affirmed decision of court below

 High Court certifies that the case involves a substantial question of law as to
the interpretation of the Constitution
B. Leave to Appear:

Article 185 – Appellate Jurisdiction of Supreme Court

An appeal to Supreme Court in cases which does not covered with clause 2,
shall lie only if Supreme Court grants leave to appeal

C. Limitation:

Direct Appeal – 30 days

Leave to Appeal – Article 179