OCTOBER 9, 2017

APPEALS UNDER CPC

CIVIL PROCEDURE CODE

RISHABH TIWARI
ROLL NO. 18
SEMESTER VII

SUBMITTED TO: MUKESH DUBEY

ASST. PROFESSOR
CIVIL PROCEDURE CODE

SCHOOL OF LAW
GURU GHASIDAS UNIVERSITY, BILASPUR
 DECLARATION

I, RISHABH TIWARI, Roll Number 18, B.A. LL. B Semester VII of Guru
Ghasidas University do hereby declare that, this project is my original work and
I have not copied this project or any part thereof from any source without due
acknowledgement. I am highly indebted to the authors of the books that I have
referred in my project as well as all the writers of the articles and the owners of
the information taken from website for it. It is only because of their contribution
and proper guidance of my faculty advisor MUKESH DUBEY, that I was able
to gather light on the subject.

RISHABH TIWARI
Roll No. 18
B.A. LL. B Semester VII

1
 CERTIFICATE
I am glad to submit this project report on “APPEALS” as a part of my academic
assignment. The project is based on Research Methodology. It further studies
meaning, sources and methods of Research Methodology and further discusses
the Interview Method. I hope this would be significant for Academic purposes as
well as prove information to all readers.
Here through I declare that this paper is an original piece of research and all the
borrowed text and ideas have been duly acknowledged.

RISHABH TIWARI FACULTY SIGNATURE:

Roll No. 18
B.A. LL. B Semester VII

2
 ACKNOWLEDGEMENT
I would like to express my earnest and deepest gratitude to MUKESH DUBEY,
Faculty for CIVIL PROCEDURE CODE for giving me this opportunity to do
a project on such a valuable topic of “APPEALS UNDER CPC”. I am grateful
for the assistance, guidance and support that were extended during the course of
excellent research. I am also thankful to the college administration for providing
the resource necessary for the research work. I thank my parents and friends for
their moral support and love throughout my research work and project
preparation. Above all I thank the God Almighty for blessing me with the health
and vitality to complete this project.

RISHABH TIWARI
Roll No. 18
B.A. LL. B Semester VII

3
 INTRODUCTION
Appeal has not been defined in Civil Procedure Code. It is, in fact, that complaint,
which is made to some superior court against decision of subordinate court. Basic
object of appeal is to test soundness of decision of lower court. Appeal may be
filed against original decree, or against decree passed in appeal.

Relevant Provisions
Following are the relevant Provisions regarding appeal and second appeal
(i) Section 96, 97, 98, 99, of CPC for 1st Appeal
(ii) Section 100, 101, 102, 103 of CPC for 2nd appeal
(iii) Cross Reference
(a) Section 17, 18 of West Pakistan Civil court ordinance II of 1962
(b) Order 41, 42 of CPC
Meaning of Appeal
“Appeal means removal of a cause from inferior to a superior court for the
purpose of a testing soundness of decision of an inferior court”.
Definition of Appeal
“Judicial examination of the decision by a higher court of the decision of the
inferior court”.
Right of Appeal
Every person has given right of appeal against decree. However, right of appeal
is not an inherent right. Rather it can only be availed where it is expressly granted
by law. Appeal lies against a decree and not against a judgment.
Nature of Right of Appeal
Rights of appeal are substantive right and they are not mere matters of procedure.
Right of appeal is governed by the law prevailing at the date of the suit and not
by law that prevails at the date fo the decision or at the date of filling of the appeal.
Right to Appeal: The right to appeal is a vested right. The right to appeal is a
substantive right and an appeal is a creature of statute and there is no right of
appeal unless it is given clearly in express terms by a statute. Appeal is a vested

4
 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. The right of appeal 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.27 This vested
right can be taken away only by a subsequent enactment if it so provides expressly
or by necessary implication, and not otherwise.
Appeals from a decree
An appeal lies under section 96 CPC only from a decree because the decree marks
the stage at which the jurisdiction of the court which the appeal is made begins.
As such unless a decree is drawn up, no appeal lies from a mere finding, but if
the finding amount to a decree, an appeal would lie.

5
 First Appeal : (Sections 96 – 99-A, 107 and Order XLI)
Appeal from Original Decree:

S. 96 of the Code provides as:

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 to the Court authorized. to hear
appeals from the decision of such Court.
2. An appeal may le 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 causes, when the amount or value of the
subject- matter of the original suit does not exceed ten thousand rupees.
Who may Appeal: The following persons are entitled to prefer an appeal :
1. A party to the suit who is adversely affected by the decree {Section 96(1)}, or
his legal representative. (Section 146)
2. A person claiming under a title party to the suit or a transferee of interests of
such party, who, so far as interest is concerned, is bound by the decree, provided
his name is entered on the record of the suit. (Section 146)
3. Guardian ad litem appointed by the Court in a suit by or against a minor.
(Section 147, Order 32, Rule 5)
4. Any other person, with the leave of the Court, if he is adversely affected by the
decree.
An appeal may lie against an ex- parte decree {S- 96(2)}and no appeal shall lie
from a decree passed with consent of parties {S- 96(3)}. The provision of S-96(3)
is based upon principle of Estoppels. Once the decree is shown to have been
passed with the consent of parties, Section 96(3) becomes operative and binds
them. It creates and Estoppels between the parties as a judgment on consent.
There shall be no appeal in petty cases as provided in Section 96(4) and an appeal
lies against preliminary decree as in the case of all decrees, unless a final decree
has been passed before the date of filing an appeal, but there shall be no appeal

6
 against final decree when there was no appeal against preliminary decree. In fact,
final decree owes its existence to the preliminary decree. Conditions before filing
an appeal: An appeal can be filed against every decree passed by any Court in
exercise of original jurisdiction upon the satisfaction of the following two
conditions:
i) The subject matter of the appeal must be a "decree", and
ii) The party appealing must. have been adversely affected by such determination.
Person otherwise competent to file appeal
Following persons are also competent to file an appeal:
(i) legal representatives of the party after such persons have been impleaded as
party,
(ii) Transferee of the interest of party,
(iii) Any person claiming under a party
(iv) Any person represented by a party
(v) A benamidar on behalf of a real owner,
(vi) A guardian on behalf of a minor
(vii) Government (Federal or Provincial)

Appeal against interlocutory order

An appellate court does not have the benefit of the evidence which has to be
recorded in the suit under appeal and as it does not have such benefit, it cannot
give a conclusive finding on any issue which turns on evidence and it should also
not given such a finding because if it did so, it would prejudice the trial court’s
appreciation of evidence.

Jurisdiction of Appellate court

The appellate court has got the jurisdiction to adjudicate upon a matter only if
there is either an appeal pending or cross-objections field by the respondents. The
court could not suo motu interfere with the judgment of the trial judge which was
subject to its appellate jurisdiction. Any order so passed is without jurisdiction

7
 and hence a nullity. The objection on this ground can be taken at any time and in
any proceedings.

Decisions in Appeal under section 98

All decisions in an appeal shall be made by the majority and if no majority is
established which necessary to alter or reverse the decree appealed from, then the
decree shall stand confirmed. It is the right of the first appellate court to come to
a conclusion different from that of trial court on re-appraisal of evidence.

(i) Reference to other judges where no majority

When a court consisting of more than two judges and an appeal is heard by its
bench of two judges and they differ on a point of law, they may refer that point
to the other judges of the same court and then the matter shall be decided
according to the majority, including judges who refer that matter.

Effect of irregularity under section 99

Decision which is correct on merits, and within the jurisdiction of the court
making it, should not be set-up by an appeal, merely on the grounds of technical
or immaterial defects i.e. mis-joinder of parties etc.

Order XLI - Appeal from Original Decrees.

Form of Appeal: Rule 1 to 4:
Memorandum of Appeal: Contains the grounds on which the judicial examination
is invited. In order that an appeal may be validly presented, the following
requirements must be compiled with:
a. It must be in the form of memorandum setting forth the grounds of objections
to the decree appealed from.
b. It must be signed by the appellant Court or his pleader.
c. It must be presented to the Court.
d. The memorandum must be accompanied by a certified copy of the decree.

8
 e. The memorandum must be accompanied by a certified copy of the judgment
unless the Court dispenses with it; and
f. Where the appeal is against a money decree, the appellant must deposit-the
decretal amount or furnish the security in respect thereof as per the direction of
the Court. Appeals from Appellate Decrees (Second Appeal Sections 100 to 103
and Order 42)
Section-100 Second Appeal:
1. Save as otherwise 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.
2. An appeal may lie under this section from an appellate decree passed ex- parte.
3. In an appeal under this section, the memorandum of appeal shall precisely state
the substantial question of law involved in the appeal.
4. Where the High Court is satisfied that a substantial question of law is involved
in any case, it shall formulate such question.
5. The appeal shall be heard on the question so formulated and the respondent
shall, after hearing of the appeal, be allowed to argue that the case does not
involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge
the power of the Court to hear, for reasons to be recorded, the appeal on any other
substantial question of law, not formulated by it, if it is satisfied that the case
involves such question.
Substantial Question of Law: Means a substantial question of law as between
the parties in the case involved. A question of law is a substantial as between the
parties if the decision turns one way or the other on the particular view of law. If
it does not affect the decision, it cannot be said to be a substantial question of law.
Form of Second Appeal
A memorandum of second appeal precisely states the substantial question of law
involved, but, unlike the memorandum of 1st appeal, it need not set out the ground
of objections to the decree appealed from. Order 41 Rule 1.

9
 Appeal from Orders (Section 104 and Order 43)
Section 104: Orders from which appeal lies-
1. An appeal shall lie from the following orders, and save as otherwise expressly
provided in the body of this Code or by any law for the time being in force, from
no other orders:
I. An order under Section 35 A; [Sec. 104(1) (ff)]
II. an order under Section 91 or Section 92 refusing leave to institute a suit of the
nature referred to in Section 91 or Section 92 , as the case may be; [Sec. 104(1)
(ffa)]
III. an order under Section 95 ; [Sec.1 04(1) (g)]
IV. an order under any of the provisions of the Code imposing a fine or directing
the arrest or detention in the Civil prison of any person except where such arrest
or detention is in execution of a decree; [Sec.104 (1) (h)]
V. an order made under rules from which an appeal is expressly allowed by rules;
[Sec. 104(1) (i)]
Provided that no appeal shall lie against any order specified in clause (ff) save
on the ground that no order, or an order for the payment of a less amount, ought
to have been made. {Proviso to, Section 1 04( 1 )}
2. No appeal shall lie from any order passed in appeal under this Section.
Section 105:
a. 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, 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.
b. Notwithstanding anything contained in sub-section (1) where any party
aggrieved by an order of remand from which an appeal lies does not appeal there
from, he shall thereafter be precluded from disputing its correctness.
Section 106: What Courts to hear appeals: Where an appeal from any order is
allowed it shall lie to the Court to which an appeal would lie from the decree in
the suit in which such order was made, or where such order is made by a Court (

10
 not being a High Court) in the exercise of appellate jurisdiction then to the High
court.
Decision being contrary to law
A decision contrary to law is open to interference in second appeal, and the decree
may be amended to bring it in conformity with legal requirements.

Decision being contrary to the usage having force of law

The expression usage having the force of law means a local or family usage,
which is distinguished from general law. A usage having the force of law should
be ancient, invariable, certain and reasonable.

Decision having failed to determine some material issue of law or usage

having the force of law
The failure to determine, some material issue of law or usage having the force of
law, by the lower court, is a good ground for second appeal.

Substantial error or defect in procedure

Where there is a substantial error or defect in procedure, provided by CPC 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 merits, it can be a ground for second
appeal.

Interference barred in Second Appeal

(a) Finding of fact is not susceptible to interference in second appeal.
(b) Plea not raised wither in written statement or even in appeal below, could not
be taken up in second appeal by the High Court.
(c) Delivery of possession is a question of fact and cannot be interfered with in
second appeal.

11
 (d) Findings of fact by first appellate court cannot be challenged in second appeal,
particularly when no erroneous approach to the case or findings of fact is shown
to have been made by first appellate court.
(e) The question of adverse possession may not necessarily of a document,
particularly revenue record, is a question of law.
(f) Concurrent findings of fact by two lower court cannot be challenged in second
appeal ever if it is erroneous or a different conclusion is possible.
(g) Where lower courts arrived at a finding of a fact after thoroughly perusing,
assessing and appreciating evidence the point cannot be reopened in second
appeal.

Allowing Revision to be treated as second appeal

The High Court has allowed the revision to be treated as second appeal. The only
point in issue is from what date this revision should be treated to be converted
into a second appeal.
(a) from the date a misconceived civil revision petition was instituted
(b) from the date is request was made for its conversion or
(c) from the date it was allowed to be converted and registered as a second appeal

Effect of Subsequent change of law on second appeal

If , according to law in force at the time of the filing of a suit, the ultimate decision
of such an action was open to appeal or to second appeal, the right to prefer an
appeal there from is not affected by subsequent change of law abolishing the
appeal of modifying its form, unless it is so provided expressly in the enacting
statue or followed by necessary implication from its terms.

Restrictions or urging irrelevant grounds

According to order 41 rule 2, no ground can be urged at the hearing of the appeal
which had not been set forth in memorandum of appeal.

12
 Raising Fresh Pleas
Parties are bound by case, which arises on their pleadings which have been
inquired into by trial court. A plea which should have been taken in trial court but
was not taken, cannot be raised for first time in second appeal.
It is for the parties to take up necessary pleas and have necessary issues framed
in the trial court. If they do not so, they cannot ask the appellate court to remand
case for recasting of issue and retrial on new pleas.

Dismisal of Appeal for default

Through second appeal may lie from an appeal decree passed ex-parte, no second
appeal lies from an order dismissing an appeal for default, on the ground that such
an order is not a decree.

Cases where second appeal is barred

Section 102 provides that no second appeal shall lie in the following suits
(a) Suit of a nature cognizable by court of small causes
A suit the value of which does not exceed Rs.25000 is a suit of a nature cognizable
by courts of small causes. It may be tried either by small cause court or by a civil
court, and in that case second appeal is barred by section 102 of CPC.
(b) Suits where value does not exceed Rs. 25,0000
NO second appeal, shall lie in any other suit, where the value of the subject nature
of the original suit does not exceed Rs. 2,50000.

Powers of High Court to determine issues of fact

IN second appeal the High Court may determine an issue of fact.
(i) where there is sufficient evidence, on the record, for determining issue of fact,
necessary for the disposal the lower appellate court.

13
 (ii) An issue of fact, necessary for the disposal of the case, has been wrongly
determined by the lower appellate court by reasons of any omission, error or
defect as referred in section 100(I)(b) of CPC.
Limitation for Appeal
Where appeal lies to district court, the limitation for appeal is 30 days U/A 152
of Limitation Act from the date of decree or order appealed from.
Where appeal lies to High Court, the limitation for appeal is 60 days U/A 155 of
Limitation Act from the date of decree or order.
Where high court passed the decree or order in the exercise of its original
jurisdiction, the limitation for appeal is 20-day U/A 151 of Limitation Act from
the date of decree or order.

14
 CONCLUSION
To conclude that appeal is a substantive right, and it is a matter inter parties. The
question as to whether the appeal is competent or not can only be decided by the
court hearing the appeal. Appeal may be filed against original or appellate decree
passed by a court subordinate to High Court. Appeal only lies against a decree
and not against Judgment. The right of appeal is a creation of statute.

15
 BIBLIOGRAPHY
1. http://thelawstudy.blogspot.co.uk/2015/05/appeal-and-its-kinds-under-
cpc.html#.
2. http://cjexam.blogspot.co.uk/p/cpc-notes.html.

16
 SYNOPSIS

APPEALS

CIVIL PROCEDURE CODE

1. INTRODUCTION.

2. First Appeal.

3. Order XLI - Appeal from Original Decrees.

4. Section-100 Second Appeal.

5. Form of Second Appeal.

6. Interference barred in Second Appeal.

7. Cases where second appeal is barred.

8. Limitation for Appeal.

9. CONCLUSION.

SUBMITTED TO SUBMITTED BY

MUKESH DUBEY RISHABH TIWARI

ASST. PROFESSOR B.A LL. B VII SEM

CIVIL PROCEDURE CODE ROLL NO. 18

17