DETAILED ANALYSIS OF APPELLATE ORDERS

BY

NANDINI SHARMA

10th JUNE, 2019

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 DECLARATION

I, Nandini Sharma, do hereby declare that, this project work titled “Detailed Analysis of
Appellate Orders” is an outcome of the research conducted by me under the guidance of Mr.
Zeeshan Hashmi (Asst. Prof., Code of Civil Procedure, 1908) at S.S Jain Subodh Law
College in fulfilment for the award of the degree of B.A. LL.B at the University of Rajasthan.

I also declare that, this work is original, except where assistance from other sources has been
taken and necessary acknowledgements for the same have been made at appropriate places. I
further declare that, this work hasn’t been submitted either in whole or in part, for any degree
or equivalent in any other institution.

Date: 10th June, 2019

Place: Jaipur

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 CERTIFICATE

This is to certify that the project work titled “Detailed Analysis of Appellate Orders”
submitted by Nandini Sharma in fulfilment for the award of the degree of B.A. LL.B at S.S
Jain Subodh Law College is the product of research carried out under my guidance and
supervision.

Mr. Zeeshan Hashmi

Asst. Prof. Code of Civil Procedure, 1908

S.S Jain Subodh Law College

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 ACKNOWLEDGEMENT

I acknowledge with profundity, my obligation to Almighty God and my parents for giving me
the grace to accomplish my work, without which this project would not have been possible
I express my heartfelt gratitude to my respected faculty, Mr. Zeeshan Hashmi (Asst. Prof. of
Code of Civil Procedure, 1908) for providing me with valuable suggestions to complete this
project work.
I am especially grateful to all my faculty members at S.S Jain Subodh Law College who have
helped me imbibe the basic research and writing skills.
Lastly, I take upon myself, the drawbacks and limitations of this study, if any.

Date: 10th June, 2019

Place: Jaipur

Nandini Sharma

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 TABLE OF CONTENTS

1. Statement of Problem
2. Research methodology
3. Introduction
4. Appeal from orders
5. Appeal to supreme Court
6. Conclusion
7. Bibliography

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 RESEARCH METHODOLOGY

OBJECTIVES:
 To understand the provisions of appeal under Code of Civil procedure.
 To analyse the grounds on which appeal can lie against the orders.

RESEARCH DESIGN: The study of this topic is based on doctrinal method and its
explanation. The researcher has followed a descriptive approach for the purpose of
explanation. This study is non-empirical.

LOCALE OF STUDY:
This study will focus on study of appellate orders under Code of Civil Procedure, 1908. It
also aims at explaining the true nature of provisions related to appeal under the Code.

SOURCES OF DATA COLLECTION:

The research has been conducted with the help of secondary sources:
 Books
 Websites
 Articles

METHOD OF WRITING AND MODE OF CITATION: The method of writing followed

in the course of this research project is primarily analytical. The researcher has followed
Chicago manual of citation throughout the course of this research project.

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 INTRODUCTION

Almost all major legal jurisdictions consist of appeal provisions, and the civil laws are not on
the contrary. The rights of appeal under the Civil Procedure Code  are not natural or
inherently attached to the litigation but are rendered by the statute or by rules enforced by the
statute.

Any person who feels aggrieved via any decree or order of the court may also opt for an
enchantment in the advanced court if the enchantment is furnished in opposition to that
decree or order. A right to attraction is not a herbal or inherent proper. An enchantment is a
creature of the statute and there may be no proper of attraction except it's far given without a
doubt and in specific phrases. It is a vested right and accrues to the litigant and exists as on
and from the date the lies start. The expression “Appeal” has no longer been described inside
the code, however it is able to be described as the judicial examination of the selection of an
inferior court. It is as a consequence a treatment furnished by law for getting the decree
passed by means of the lower court is unsound and wrong.

Grounds of an Appeal

An appeal under the Civil Procedure Code can be made under the following grounds:

 A decision has already been made by a judicial or administrative authority.

 A person is aggrieved of such decision, whether or not he is a party to the proceeding.

 The appeal is entertained by a reviewing body.

Who Can File an Appeal?

Any of the following persons 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.

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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.

Features of an Appeal

 The rights of appealing are not inherent, and therefore must be created in express
terms by the statue. Thus, these rights differ from the rights of filing suits, which is
inherent in nature.

 It is a substantive right.

 The rights under this provision accrue from the day of the institution of the suit.

 These rights cannot be made void, except through a statue (either expressly or by
implication).

 The discretion of the appellate authority is conclusive.

Appellate Authority – refers to the authority which undertakes and adjudicates the initial
review appeal.

Memorandum of Appeal

Any appeal under these provisions 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.

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  The attachment of the certified copy of the original judgment.

 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 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.

Appeals from orders could be placed with respect to the following pronouncements on the
grounds of any defect or irregularity in law:

 Any orders under Section 35A of the Code allowing special costs, and orders under
section 91 or 92 refusing leave to institute a suit of the kind referred to in Section 91
or Section 92.

 Any orders under Section 95, which involves the compensation for obtaining
attachment or injunction on insufficient grounds.

 Orders under the code which deals with the imposition of fine, direction of detention
or arrest of any person except in execution of a decree.

 Appealable orders as prescribed under Order 43, R.I. However, appeals cannot be
filed based on any order enlisted in clause (a) and from any order passed in appeal
under Section 100.

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 ORDER XLIII : APPEALS FROM ORDERS

1. Appeal from orders

An appeal shall be from the following orders under the provisions of section 104, namely:-

    (a) an order under rule 10 of Order VII returning a plaint to be presented to the proper
Court [except where the procedure specified in rule 10 A of Order VII has been followed];

    (c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for
an order to set aside the dismissal of a suit;

    (d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal)
for an order to set aside a decree passed ex parte;

    (f) an order under rule 21 of Order XI.;

    (i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an
endorsement;

    (j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a
sale;

    [(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI,
provided that an order on the original application, that is to say, the application referred to in
sub-rule (1) of rule 105 of that Order is appealable.]

    (k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of
a suit;

    (1) an order under rule 10 of Order XXII giving or refusing to give leave;

    (n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal)
for an order to set aside the dismissal of a suit;

    [(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for
permission to sue as an indigent person;]

    (p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;

    (q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;

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    (r) an order under rule 1, rule  [rule 2A], rule 4 or rule 10 of Order XXXIX;

    (s) an order under rule 1 or rule 4 of Order XL;

    (t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order
XLI to re-hear, an appeal;

    (u) an order under rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal
would lie from the decree of the Appellate court;

    (w) an order under rule 4 of Order XLVII granting an application for review.

[1A. Right to challenge non-appealable orders in appeal against decrees

    (1) Where any order is made under this Code against a party and there upon any judgement
is pronounced against such party and a decree is drawn up, such party may, in an appeal
against the decree, contend that such order should not have been made and the judgement
should not have been pronounced.

    (2) In an appeal against a decree passed in a suit after recording a compromise or refusing
to record a compromise, it shall be open to the appellant to contest the decree on the ground
that the compromise should, or should not, have been recorded.]

2. Procedure

The rules of Order XLI shall apply, so far as may be, to appeals from orders.

Smt. Pratibha Singh & Anr. V Smt. Shanti Devi & Anr.

The said misc. appeal was dismissed by the learned single judge in terms of the impugned
order.4. section 104(2) of the Code of Civil Procedure very clearly provides that no further
appeal lay from any order passed in appeal filed under Order XLIII rule i of the CPC. The
law has been set at rest by the Supreme Court in the aforesaid case for the reason that this
appeal has been filed against the appellate order passed in the appeal filed
under section 104 read with order XLIII rule 1, CPC for the aforesaid reasons, this appeal is
not maintainable and is accordingly dismissed. Our mind in holding that the instant letters
patent appeal against the order passed by the learned single judge exercising appellate
jurisdiction under order XLIII rule i, CPC is not maintainable.

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 APPEALS TO THE SUPREME COURT

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.

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 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 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
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.

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 BIBLIOGRAPHY

1. Takwani. C.K., ‘Code of Civil Procedure, 1908’, Eastern Book Company, seventh
edn.
2. Myneni. S.R., ‘Code of Civil Procedure’, Asia Law House, 3rd edn.
3. M. Shailender, ‘Code of Civil Procedure’,Universal Publications.

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