Dr. Khakare Vikas

Code of Civil Procedure 1908

Appeals

Dr. Khakare VikasAsso. Prof.

Narayanrao Chavan Law college, Nanded, India

Dr. Khakare Vikas

Appeal

• Appeal is the removal of a cause from an inferior Court to a superior Court for the purposes of testing the soundness of the decision of the inferior Court.

• Where a person is aggrieved by decision or judgment of a Court, he can prefer appeal to appellate Court.

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Right to appeal

• Appeal is a statutory right available to aggrieved person.• An appeal shall lie from every decree passed by any Court exercising

original jurisdiction the Court authorized to hear appeals from the decisions of such Court.[ Section 96].

• Right to appeal is given by statute or by rules having the force of statute. Unless a right of appeal is given clearly by statute, it does not exist.[ AIR 1948 All 2; AIR 1974 SC 1126]

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Who can prefer appeal?

1. Any party to suit adversely affected by the decree,2. In case of death of party, his legal representative,3. Guardian of a minor party,4. Any transferee of interest of party, who is bound by decree of the

Court,5. A person who is not party to suit but who is aggrieved by decree or

who is prejudicially affected by decree. But such person must receive leave of appellate Court to file appeal.

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Numbers of appeal

• All parties who are aggrieved can prefer appeal. • Therefore more than one appeal is possible from one judgment and

decree. • Where more appeals are filed, the appellate Court clubs such appeals

and one judgment and decree is passed.

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KINDS OF APPEAL

• Appeals may be classified in two kind i.e. first appeal and second appeal.

• Appeal it may be of following kinds:1. Appeal from original decree, (sec. 96)

2. Appeal from order (sec. 104; Order XLIII),3. Appeal from appellate decree/Second appeal/Appeal to High Court

(sec. 100, 100A; Order XLI), and 4. Appeal to the Supreme Court (sec.109; Order XLV).

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1. Appeal from original decree

• Generally from every original decree passed by any Court first appeal lies.

• From an ex-parte decree appeal may lie but appeal shall not lie from a decree passed with consent of parties.[ Section 96]

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2. Appeal from orders• Appeal shall lie from the orders which are appealable. Such orders

are:[ Section 104]

• ff. An order under section 35A, [i.e. compensatory cost for false or vexatious claims or defences]

• ffa. 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,

• g. An order under section 95; [i.e. compensation for obtaining arrest, attachment or injunction on insufficient grounds]

• h. An order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of an person except where such arrest or detention is in execution of a decree;

• i. Any order made under rules from which an appeal is expressly allowed by rules.

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---• Order XLIII states that appeal under section 104 may lie from the

following orders:• 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 10A 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; (non compliance of order of discovery)

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---• 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;

• l. An order under rule 10 of Order XXII giving or refusing to give leave;

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---• 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 persons,• p. Orders in interpleader suits under rule, rule 4 or rule 6 or Order

XXXV; • q. An order under rule 2, rule 3 or rule 6 of Order XXXVIII; (order for

surety for Arrest or Attachment before judgment)• r. An order under rule 1, rule 2, rule 2A, rule 4 or rule 10 of Order

XXXIX; (order for temporary injunction)

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• s. An order under rule 1 or rule 4 of Order XL; (appointment of receiver)

• 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 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.

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3. Appeal from appellate decree OR second appal or appeal to High Court

• An appeal shall lie to High Court from decree passed by appellate Court.

• Second appeal is also possible from an appellate decree passed ex-parte.

• Second appeal to High Court shall lie if it involves a substantial question of law.

• Formulating substantial question of law is sine qua non and if it is not formulated, appeal is liable to be dismissed.

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• Substantial question of law depends upon facts and circumstances of each case. A substantial question of law...

• i.Must be debatable,• ii.Must not have been settled by law,• iii.Not settled by any binding precedent,• iv.Must have material bearing on the decision of the case,• v.It is necessary to be decided for a just and proper decision between

the parties.[ AIR 1977 SC 1815; Santosh Hazari v. Purushottam Tiwari, AIR 2001 SC 965; Govindaraju v. Mariamman, AIR 2005 SC 1008.]

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4. Appeal to the Supreme Court• Subject to the provisions in Chapter IV of Part V of the Constitution

and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies...

i. That the case involves a substantial question of law of general importance; and

ii. That in the opinion of the High Court the said question needs to be decided by the Supreme Court.

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GROUNDS OF APPEAL

• Appellant has to mention grounds of appeal in the memorandum of appeal.

• Such grounds must be arising out of pleading and evidence and necessary for the decision of the case.

• Appellant has to mention all the grounds of objection which he wants to urge before appellate Court.

• A new plea may be raised before appellate Court as additional grounds by substantial application. High Court has discretion to accept or reject such additional grounds.[ Subbanna v. Subbanna, AIR 1965 SC 1325]

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PROCEDURE FOR APPEAL [Order XLI]1. Form of appeal: Every appeal shall be in the form of a memorandum signed by the appellant of his pleader and presented to the Court. The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed.2. Rejection or amendment of memorandum: Where memorandum of appeal is not drawn up in the manner herein before prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.3. Application for condonation of delay: When an appeal is presented after the expiry of the period of limitation specified there for, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.

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---4. Stay by appellate Court: No order of stay of execution of decree appealed shall be made unless the Court decides to hear the appeal. 5. Registry of memorandum of appeal6. Security for cost: The Appellate Court may in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both.7. Power to dismiss appeal without sending notice to Lower Court: The Appellate Court, after sending for the record and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

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---8. If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.9. Day for hearing: Appellate Court should fix a day for hearing the appeal. Notice of day shall be affixed in the Court and send to the Court whose decree is appealed and the respondent or his pleader. If respondent does not appear on given date, the appeal will be heard ex-parte.10. Hearing: On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal and in such case the appellant shall be entitled to reply.

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---11. Cross objection: Any respondent who may not have appealed from any part of the decree can support the decree. He may take any cross objection the decree which he could have taken by way of appeal.12. Order/judgment: After hearing the appeal, the appellate Court may:i. Remand the case, orii. Where the evidence upon the record is sufficient to enable the

Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit,

iii. May frame issues and refer them for trial to Court whose decree appealed from,

iv. Take additional evidence or requires such evidence to be taken.

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Stay by Appellate Court

• An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.[ Order XLI Rule 5]

Dr. Khakare Vikas

Thank you.