Appeals under Civil Procedure Code

INTRODUCTION
Any person who feels aggrieved by any decree or order of the court may prefer an appeal
in the superior court if the appeal is provided against that decree or order. A right to
appeal is not a natural or an inherent right. An appeal is a creature of the statute and
there is no right of appeal unless it is given clearly and in express terms. It is a vested
right and accrues to the litigant and exists as on and from the date the lis commences.
The expression appeal has not been defined in the code, but it may be defined as the
judicial examination of the decision by a higher court of the decision of an inferior
court[1]. It means removal of a cause from an inferior to a superior court for the purpose
of testing the soundness of the decision of the inferior court. It is thus a remedy provided
by law for getting the decree of the lower court set aside. In other words, it is a complaint
made to the higher court that the decree passed by the lower court is unsound and
wrong. The right to appeal must, at this juncture, be compared and distinguished from a
right to file a suit. As said, the right to appeal is a statutory right and any such right must
have the express authority of a law. The right to sue or to file a suit is, however, an
inherent right and no express authorization from any statute may be required to institute
a suit. It is enough that no statute expressly bars the institution of such suit.
Under the Code of Civil Procedure, the following are the provisions relating to the right of
appeal:
1.
2.
3.
4.
5.
6.

Sections 96-112 and Orders 41 to 45.

First appeals : Ss. 96-99A, 107 and Order 41.
Second Appeals : Ss. 100-103, 108 and Order 42.
Appeals from orders : Ss. 104, 108 and Order 43.
Appeals to the Supreme Court : Sections 109 and Order 45.
Appeals by indigent people : Order 44.

It is in the background information provided here that the aspect of an appeal being a
continuation of the suit will be examined.
RESEARCH METHODOLOGY.
The main aim of the project work is to evaluate the procedure relating to the right to
appeal under the C.PC. under the headings of first and second appeal. The context in
which this has to be seen is the fact that the procedure relating to the appeals may well
be called the continuation of the suit itself. The effort would be to analyse the various
provisions in this background.
Source of Data.
The sources of data include both primary and secondary sources. The primary sources
are the original text of the case laws derived from the case law reporters. The secondary
source includes books and articles.
Style of Footnoting.
A uniform and consistent style of footing has been employed throughout the work, this
style being based on the style formulated by the Harvard Blue book.
Scope and Limitation.

The scope of this work is that it looks into the matter of appeals related procedure under
the Code Of Civil Procedure, 1908. Thought the procedure related to the appeal is
extensive and each provision by itself deserves to get an independent look, it is beyond
the scope of this work to do so. The scope of the work is limited to the aspect of the
overall framework whereby it may be evident that an appeal may be called a
continuation of an appeal. The researcher admits that the project cannot be called
exhaustive about the matter covered due to limitation of time and capacity.
PROCEDURE RELATED TO APPEALS.
The appeal being the continuation of the suit is held not without any reason; it may be
examined in the light of the following propositions:
1.

The appellate court has all the powers and has to do all those things necessary
that a trial court has and has to do. In this sense, even when the case goes on
appeal, it is just the name that has undergone a change; the form and substance
still remain the same.
2. In the same vein as above, the appellate court has to do all that has been done by
the trail court in that particular case, and then either agree or disagree from the
trial court.
3. Hence, even the appellate court has to write a judgement and pass a decree. In
the event of the court upholding the lower courts decision, the appellate court
may write down the same decree, without changing it, and the decree will now be
deemed to have been that of the appellate court.
4. Finally, the suit is not deemed to be finally concluded for matters of res judicata
till the appeals are over. This implies that it is deemed that the same suit is
progress even while the appeals are on. It is only when the courts have finally
come to a conclusion, after all possible appeals have been used and tried by the
appellant, that the suit is said to have been conclusively decided.
The above said propositions point out, in essence, what is implied when it is said that the
appeal is a continuation of the suit. The various provisions relating to the appeals have
already been stated in the introduction to this work. A detailed look into these provisions
at this juncture becomes pertinent.
FIRST APPEALS
As already stated in the introduction, the provisions relating to the first appeals are
sections 96-99A, 107 and order 41. Section 96 of the code recognizes the right to appeal
from every decree passed by any court of original jurisdiction. It does not enumerate the
persons capable of appealing. Two conditions have to be fulfilled before an appeal may
be filed under this section :
1.

The subject matter of an appeal is always a decree; an appeal is allowed only

after a decree has been passed, which implies the conclusive determination of the
suit.
2. The party appealing must have been adversely affected by such determination.
The ordinary rule is that only a party to a suit adversely affected to by the decree or any
of his representatives in interest may file an appeal. But a person who is not a party to
the suit may file an appeal, only if the court has granted special leave, provided that he
is either bound by the decree or order or is aggrieved by it or is prejudicially affected by

it. The case of Adi Pherozshah v. H.M. Seervai[2], the court observed that the test to see
whether a person is aggrieved or not is to see whether he has a genuine grievance
because an order has been made which prejudicially affects his interests either pecuniary
or otherwise. Similarly, a person who has waived his right to appeal or agrees not to
appeal loses his right to appeal. The right to appeal is also lost if the court to which the
appeal lies is abolished and no court is substituted in its place.
Section 96(2) provides for an aggrieved party against whom an ex parte decree has been
passed to file an appeal against such decree. Under clause 3 of the section, an appeal
against a consent decree has been prohibited, and very justifiably so for obvious reason.
A final decree owes its origin to the preliminary decree[3], therefore a failure to appeal
against a preliminary decree precludes a person for filing an appeal against the final
decree[4].
As stated above, sections 96-99A enact the substantive law as regards First Appeals,
while order 41 lays down the procedure relating to thereto. The expressions appeals and
memorandum of appeal denote two different things. The appeal is the judicial
examination by a higher court of the decision of the inferior court. The memorandum of
appeal contains the grounds on which the judicial examination is invited. The order lays
down the requirements that have to be complied with for validly presenting an appeal[5].
Rule 2 precludes the appellant to urge, except with the leave of the court, any grounds of
objection not set forth in the memorandum of appeal. Where the memorandum of appeal
is not in the proper form, the court may reject it or return to the appellant for the purpose
of making amendments[6]. Under the provision of Rule 3A, where an appeal has been
presented after the expiry of the period of limitation specified therefor, it should be
accompanied by an application that the applicant had sufficient cause for not preferring
an appeal within the said time. This rule was inserted during the 1976 Amendment Act to
give effect to the recommendation of the Privy Council[7].
Rule 5 provides for the stay of execution of decree or order. After an appeal has been
filed, the appellate court may order stay of proceedings under the deree or execution of
such decree. But mere filing of an appeal does not suspend the operation of the decree;
the following grounds must be satisfied before the court may grant a stay :
1.
2.
3.

the application has been made without any unreasonable delay,

substantial loss will result to the applicant unless such order is made, and
security for the due performance of the decree or order has been given by the
applicant.
Rule 11 deals with the power of the appellate court to summarily dismiss an appeal. This
rule embodies a general principle that whenever an appeal is preferred, the appellate
court is entitled to reject the appeal summarily, after hearing the appellant, if no prima
facie substance exists. Where an appeal raises triable, it should not summarily dismiss
the suit. A case on this aspect is Mahadev Tukaram v. Smt Sugandha.[8] In this case, a
will was executed by an old man of 80 years. Although he was literate, the will bore his
thumb impression and not his signature. No other document bearing his thumb
impression was produced to support the reason that thumb impression was taken
because his hand was shaky. Out of the six attesting witnesses, only two were examined.
The evidence of the doctor was also not convincing. The trial court held the will as
genuine and the matter on appeal to the High Court was dismissed summarily. On second

appeal the court held that the High Court was not justified in dismissing the appeal
summarily, since the first appeal had triable issues.
Rule 16 says that the appellant has the right to begin, just like in the case of an original
suit wherein the plaintiff has the right to begin. If the appeal is not dismissed summarily,
then the court shall hear the respondent against the appeal and the appellant then be
entitled to reply. Like in the case of the original suit, if the plaintiff does not appear for
the hearing, the case may be dismissed, so is the case during the appeal too. If the
appellant does not appear when the appeal is called for hearing, the court may dismiss
the appeal in default.[9] The same result ensues in the case of the non-payment of the
process fee by the appellant, similar to that of the situation of the original suit. Under
rule 19, the appeal may be restored after being dismissed if the appellant files for such
action and shows sufficient cause.
As is the case with the original suit, if the respondent does not appear but the appellant
does, the court may proceed ex-parte.[10] If the case goes in the favour of the appellant,
the respondent may apply for the rehearing of the appeal. If he is able to satisfy the court
that he had sufficient cause for not having appeared for the scheduled hearing, the court
may accept the application.[11] However, ordinarily the court should not pass an exparte decree except on reliable evidence.
Again, as in the case of the original suit, where joinder of parties is allowed, so in the
case of an appeal respondents may be added under the provisions of rule 20. Where it
appears to the appellate court at the hearing of the of the appeal that any person who
was a party to the suit in the trial court but who has not been made a party to the appeal
is interested in the result of the appeal, the court may adjourn the hearing of the appeal
and direct such person be joined as a respondent. The object of this rule is to protect
parties to the suit who have not been made respondents in the appeal from being
prejudiced by modifications being made behind their back in the decree under appeal.
Section 107 and rules 23-29 and 33 of the order 41 specify the powers of the appellate
court while hearing first appeals. Section 107(1)(a) and rule 24 enables the court to
dispose off a case finally. The general rule is that the case should, as far as possible, be
disposed of on the evidence on record and should not be remanded for fresh evidence.
Where the lower court has omitted to frame any issues, or to try any issue or to
determine any question of fact which may be essential to the right decision of the suit
upon merits, the appellate court may frame issues and refer them for trial to the lower
court and shall direct that lower court to take the additional evidence required. The lower
court shall try such issues and shall return the findings and the evidence to the appellate
court within the time fixed by the higher court.[12]
Section 107(1)(b) and Rule 23 and 23A talk about the remand of the suit. Remand means
to send back. Where the trial court has decided a suit on a preliminary point without
recording the findings on other issues and if the appellate court reverses the decree so
passed, it may send back the case to the trial court to decide other issues and determine
the suit. This is called remand. By passing an order of remand, the appellate court directs
the trial court to reopen and retry the case. The case of Kalipad Dinda v. Kartick
Chandra,[13] the court observed that the order for a remand can be made only if the
following conditions are satisfied:

 The suit must have been disposed of by the trial court on a priliminary point. A point
may be called a preliminary point if it is such that the decision thereon in a particular
way is sufficient to dispose of the whole case, without the necessity for a decision on the
other points. Preliminary points may be questions of limitation or res judicata.
The decree must have been reversed under the appeal.
Other grounds available under Rule 23A.
In this case, suit for declaration of title was dismissed by the trial court, which
disbelieved the evidence. In appeal, the court passed an order for remand for the trial
court to rehear the suit giving opportunity to the parties to adduce fresh evidence.
Against this order of remand, the defendant filed a revision under Section 115. The
preliminary objection was raised as to the maintainability of the revision application on
the ground that the appeal ought to have been filed against the order passed by the
appellate court. The court held that the revision application is maintainable since the
remand was made under the inherent powers of the court under Section 151 of the code,
and not under Order 41, rule 23. Hence, for this kind of an order, only revision is allowed
and not an appeal.
As a general rule, the appellate court shall decide an appeal on the evidence lead by the
parties before the trial court and should not admit additional evidence for the purpose of
the disposal of the suit. Section 107(1)(d), however, empowers an appellate court to
take additional evidence to require such evidence to be taken subject to the conditions
laid down in Rule 27 of the Order 41. They are as follows:
1.

Where the lower court has improperly refused to admit evidence which ought to
have been admitted,
2. Where such additional evidence was not within the knowledge of the party or
could not, after exercise of due diligence, be produced by him at the time when the
lower court passed the decree, or
3. Where the appellate court itself require such evidence to pronounce judgment or
for any other substantial cause.
A very important provision is Section 107(2) of the Code, which says that apart from the
over and aforesaid powers, an appellate court has the same powers as an original court.
This provision is based on the general principle that an appeal is continuation of a suit
and therefore, an appellate court can do, while the appeal is pending, what the original
court could have done while the suit is pending. This aspect has been looked into in the
leading case of Praduman Kumar v. Virendra.[14] The facts of the case were as follows.
The respondent in this case obtained permanent tenancy rights from the appellant in a
piece of land. Later the respondent transferred his tenancy rights to another person.
Upon the non payment of the rent for 2 years, the appellant, the owner of the land, filed
a suit for a decree for ejectment and for the recovery of the arrears in rent in the court of
the City Munsiff. The respondents prayed that they should be given relief against the
forfeiture of their tenancy rights under Section 114 of the Transfer of Property Act. The
trial judge held that the conditions relating to deposits in the Court of rent of arrears,
interest thereon, and costs of the suit were not complied with and decreed the plaintiffs
claim. In appeal to the District court, the tenant offered to clear all the possible dues and
the costs. The court held that since the tenant was willing to pay the amount, he should

be given the benefit of Section 114. The second appeal to the case was summarily
dismissed by the High Court. The case went on to appeal to the Supreme Court. The
appellant contested that the court having the jurisdiction to grant reprieve against the
forfeiture lies with the court of the first instance and the second, that the Trial court
having given the tenants the opportunity to pay all the amounts, it was beyond the
power of the appellate court to give a second opportunity to them.
The Supreme Court negativing this contention held that there is no bar to the jurisdiction
of the appellate court in deciding the matter as it did, and hence the appeal was
dismissed. It was observed that the appellate court has all the powers as the trial court in
deciding the matter conclusively.
SECOND APPEALS
The preceding part of this chapter dealt with the provisions of the code, which deal with
the first appeals. First appeals are the appeals that go from the court where the original
suit was first filed and the decree passed. If either of the parties to the first appeal is not
satisfied even with the decree of the court of first appeal, they may prefer second appeal
to the appropriate court. This then becomes the second appeal of the suit. Order 42 of
the code deals with the provision relating to the second appeal. The provision provided
for is very simply put in the code, holding that all the provisions that apply to the first
appeal, so far as may be required, be applicable to the second appeal too.
However, Section 100 of the code, dealing with the substantive part of the code, holds
that the court of second appeal may take up a case on second appeal only on a question
of law. Any question of fact may not form part of the inquiry of the court. In the case
of Durga Chowdharani v. Jawahir Singh[15], the court had observed that there is no
jurisdiction to entertain a second appeal on the ground of erroneous findings of fact,
however gross the error may seem to be.
In this case the appellant, widow of a certain person, filed a suit against the elder brother
of her late husband to have a decree passed in her favour declaring her to be the heiress
to her husbands property, which was being claimed by the elder brother, the respondent.
The appellants right to the property depended upon her proving the fact that there had
been a partition of the family property and therefore, the elder brother had no claim to it.
The respondent contested this claim. The appellant tried to argue that the lower courts
had not looked into the available evidence properly, and hence it amounted to defect in
the procedure of law, therefore appealable to the higher court in the second appeal. The
court in this case held that an erroneous finding of the facts is a different thing from an
error or defect in the procedure. This implies that however gross the defect might be in
the finding of the facts, it cannot be construed as compelling the court of second appeal
to deal with a question of fact. Accordingly, the appeal in this case was dismissed.
Section 103 of the code provides that the High Court may, if the evidence on record is
sufficient, determine any question of fact necessary for the disposal of the appeal,
provided that the matter had not been determined by the lower appellate court or which
has been wrongly determined by such court by reason of any illegality, omission, error or
defect such as is referred to in sub-section (1) of section 100.[16] However, this section
does not empower the High Court to frame questions of facts on issues that had not been
raised at all in the lower Court.

Section 102 of the code says that no appeals are allowed from any suit of the nature
cognisable by Courts of Small Causes, when the amount or value of the of the subject
matter of the original suit does not exceed Rs. Three thousand. Effectively, this section
bars second appeals from what may be called petty cases. The bar operates if two
conditions are satisfied:
1.

The suit was cognisable by a court of small causes;

II. The amount of the subject matter does not exceed three thousand rupees.
Thus, a double test has to be satisfied; the nature of the controversy and the value of the
suit.
CONCLUSION.
The preceding sections showed that the courts have wide ranging powers in matters of
appeal cases. This is specially the case of the first appeals, where the courts have almost
identical powers as that of the court of original trial jurisdiction. As mentioned above,
section 107 of the code recognises the principle that an appeal is, in effect, a
continuation of the suit. It would be pertinent to have a recapitulation of the main
propositions upon which such a principle finds basis. They are:
1.

The appellate court has all the powers and has to do all those things necessary
that a trial court has and has to do. In this sense, even when the case goes on
appeal, it is just the name that has undergone a change; the form and substance
still remain the same.
2. In the same vein as above, the appellate court has to do all that has been done by
the trail court in that particular case, and then either agree or disagree from the
trial court.
3. Hence, even the appellate court has to write a judgement and pass a decree. In
the event of the court upholding the lower courts decision, the appellate court
may write down the same decree, without changing it, and the decree will now be
deemed to have been that of the appellate court.
The above three propositions have been dealt with in details in the forgoing sections and
hence do need any further elucidation.
The important point to bear in mind when it comes to making a statement to the effect
that an appeal is a continuation of the suit, is that it is more in the interest of justice and
adherence to the principles of fair trial that these provisions ought to be seen. No doubt
that the right to appeal is not an inherent right and has to be mandated by the law, yet it
is not that a very technical and mechanical view has to be taken into account.
Bibliography.

C.K.Takwani, Civil Procedure (3rd ed., Lucknow: Eastern Book Company, 1996)

D.V.Chitaly, AIR Commentaries: The Code of Civil Procedure (Nagpur: All India

Reporter Limited, 1972).

M.S.Mehta, A Commentary on The Code of Civil Procedure (Allahabad: Wadhwa

and Company, 1990).

P.M.Bakshi, Supplement to Mullas Code of Civil Procedure (14th ed., Bombay:
N.M.Tripati Private Limited, 1992).

T.L.Venkatarama Ayiar, Mulla on The Code of Civil Procedure (13th ed., Bombay:
N.M.Tripathi Private Limited, 1967).

[1] C. K. Thakker, Civil Procedure (3rd ed., Eastern Book Co. : Lucknow, 1994) at 260.
[2] AIR 1971 SC 385.
[3] Supra n 1, at 265.
[4] Section 97 of the C.P.C.
[5] Order 41, r. 1.
[6] Order 41, r. 3.
[7] Statement of Objects and reasons.
[8] AIR 1972 S.C. 1932.
[9] Rule 17(1).
[10] Rule 17(2).
[11] Rule 21.
[12] Section 107(i)(c); O 41, r. 25.
[13] AIR 1977 Cal 3.
[14] AIR 1969 SC 1349.
[15] 17 I.A. 122.
[16] Section 103.