1st Appeal

An appeal is a proceeding by which a decision of a lower court is challenged by a higher

court so that the decree can either be set aside or reversed. The higher court needs to be
convinced that the appeal before it has substantive contentions (law and fact) only then will it
entertain the appeal. Admission of an appeal is based on the discretion of the court; only if the
judge sees merit in the appeal will it allow the appeal to continue.
An appeal is not a natural or inherent right but a statutory right. Thus there must be a clear
and express statute that lays down the terms for an appeal. When an appeal is being heard in
the higher or appellant court is it the duty of that court to have an entirely new proceeding of
the case, re examine the evidence and come to its own conclusion. It is important to note that
an appeal is only the review and correction of the old proceeding it does not however lay
grounds to insinuate a new cause.
The decision of the appellate court will be the binding and operative decision. It is the
discretion of the appellate court to decide what it has to do with the appeal; it may either
reverse the decision or modify the order if it thinks fit or dismiss the appeal thereby
confirming the order. Whatever conclusion reached by the appellate court will be held as the
operative order and thus will be enforceable.
Ist appeal is an appeal that is based on either a matter of fact or a matter of law or a mix
between the two. It is an appeal from decree and is a matter of right it lies against a decree
passed by a court exercising original jurisdiction. As the right to appeal is a vested right since
the day you file a suit thus it can be about understanding the essentials of a case from the
start. Thus it is governed by the law that is present at the time the suit was initiated and not
the law in force at the time when the adverse judgement was pronounced.
Hoosein Kasam Dada Ltd.Vs. The State of Madhya Pradesh and Ors 1It was there regarded as
settled that the right of appeal was not a mere matter of procedure but was a vested right
which inhered in a party from the commencement of the action in the Court of first instance
and such right could not be taken away except by an express provision or by necessary
implication. The Court was bound to admit the appeal whether appellant deposited the
amount recoverable in execution of the decree or not. By demanding such an amount the
court is indirectly laying down a condition to file an appeal.itt was also held that right of
appeal exists from when the suit is filed.
Section 96 of the Code of Civil Procedure 1908, confers the right of appeal; it states that an
appeal may lie from an original decree passes ex parte however no appeal can be brought on
from a decree passed by court with the consent of the parties or if the substantive matter is
that of petty nature.

1 Hoosein Kasam Dada Ltd.Vs. The State of Madhya Pradesh and Ors AIR1953SC221

Under section 96(2) of the code an appeal passed in favour of the defendant against whom the
ex parte order has been passed he has two remedies available one is to challenge that order
and the second was is to set aside the ex parte entirely. It cannot be held that the remedies
override each other but the purpose is so that to go into the correctness of the ex parte order
passed by the lower court.
This section also lays down two features of an appeal that must be fulfilled one is that the
subject matter of the appeal must be a decree by which the rights of the parties in contention
are addressed. The second is that the party that is filing the appeal must be adversely affected
by the decree and that the order made prejudicially affects his interests.
If and how a party is affected by an order must be seen according to the conditions of the case
in hand. If it is not evident that a decision is said to harm a party then at present it is the duty
of the court to gauge if the decision can adversely affect a person in any future suit and
operate as res judicata. As seen in the case of The Jammu and Kashmir Bank Vs.Lal
Mohamed Bangroo2 it was held that a decree holder can approbate as to what benefits him
and reprobate and challenge that part of the decree that refuses him it adversely harms him in
anyway. He can appeal against the part of the decree that adversely affects him or an appeal
can lie even against a finding which is necessary and will operate as res judicata as against a
party by implication.
For this it is necessary of the court to ascertain what the real adjudication was and delve into
the substance of the decree. All people who are aggrieved or adversely affected by the order
my file an appeal against that order.
Where a matter of controversy present in the suit is of the nature that it can be said to become
the subject matter of dispute between two plaintiffs or defendants they can file an appeal
against each other. However in order for it to be taken into consideration it is necessary for
either one of the parties to show how order adversely affects them. In a case where the parties
in contention sign and agree to not file an appeal they will be bound by that agreement. Given
that the agreement was clear and was not signed under pressure or the agreement must not be
in contention for its validity in any court.
Additionally a party cannot file an appeal against the order while accepting the benefits or
remedies presented by that order. As where a party has accepted the benefits he can be
estopped from contending its legality. Section 96(3) states that no appeal should lie against a
consent decree, as explained above the consideration in a consent decree is whether both the
parties gave up their right to an appeal by way of an agreement. If it is proved that the
judgement passed was at the consent of the parties section 96(3) comes into play and creates
an estoppel between the parties as judgement on consent. Once this has been established that
there was even a partial compromise of a suit in contention and a decree is passed in
accordance to that the parties thereby automatically lose their right to an appeal.

2 The Jammu and Kashmir Bank Vs.Lal Mohamed Bangroo AIR1969J&K25

As stated above section 96 of the code allows and expressly states that in order to file an
appeal it must be formed only against orders or decrees passed by lower courts exercising
original jurisdiction. An appeal lies only against a decree or an order that is specifically stated
in the code. A mere finding which does not amount to a decree or an order cannot constitute
as basis for an appeal.
Once the right of appeal is established the parties need to file the appeal in within the time
period provided by the Limitation act. The act states that an appeal against a decree or an
order may be files within ninety days in the high court and within thirty days in any other
court from when the decree/order has been passed. In cases where the appeal has been filed
after the set period of time the onus is then on the party to prove by application that there was
a sufficient cause for not filing the appeal earlier.
Order 41 of rule 5 orders for a stay of an execution of a decree with the prime intention being
fairness to both the parties, however it must be taken into consideration that a merely filing
an appeal does not give a stay to the execution of the decree of the lower court. The party
needs to file an application for stay which is again based on the discretion of the court. This
can only happen till the appeal has not been admitted or within the thirty days (limitation
period). A stay order is not an injunction as in an injunction the party cannot proceed but in a
stay order the court cannot proceed.
Rule 11 of the order gives the power to the appellate court to dismiss the appeal if it thinks it
prima facie does not have any substance or either law or fact. It must record its reasons for
doing so. However once an appeal is admitted the court cannot dismiss the appeal and it must
allow for the fair hearing. The case of Shyam Prasad Mishra and Anr.Vs Vijay Pratap Singh
and Anr3 of laid down the power of the courts to dismiss a suit on the basis that it has no
merits. Order 41 rule 11, clearly states that the court has the absolute power to dismiss the
suit if the contentions of the suit prove to be dissatisfactory. It is the duty of the court to
examine the suit and under the above provision dismiss it. In cases where the appellant does
not appear in court then the appeal may be dismissed on grounds of default. It is dependent
on the discretion of the court whether or not to dismiss the appeal on grounds of default.
The prime difference between a rejection of an appeal and dismissal is that rejection
operating as res judicata,, order 7 rule 11 which has an exception in rule 12, once rejected
cannot file second suit. Whereas in dismissal option of refilling suit; restoration application.

3 Shyam Prasad Mishra and Anr.Vs Vijay Pratap Singh and Anr AIR2006All56