APPEALS FROM ORIGINAL AND APPELLATE DECREE UNDER THE CIVIL PROCEDURE CODE,1908

INTRODUCTION

Where the parties to a suit are not satisfied with the judgment, decree or order passed by the lower court then they may approach the higher court by way of Appeal.

The term Appeal is not defined under the Civil Procedure Code, 1908. According to the Black’s Law Dictionary the term Appeal is explained as “the complaint to a superior court for an injustice done or error committed by an inferior one, whose judgment or decision the Court above is called upon to correct or reverse. It means the removal of a cause from a Court of inferior jurisdiction to one of superior jurisdiction, for the purpose of obtaining a review and retrial. Generally, it means a resort to a superior court or tribunal”.[1]

The basic elements required for appealing cases are-

  • a decision,
  • person aggrieved, and
  • reviewing body.

In order for a party to go for an appeal it is necessary that there must be a higher court and that it must have the power to review the decision of the inferior court. Section 96 to 99A, Section 107 and Order 41 of Civil Procedure Code,1908 deals with appeals from Original Decree (First Appeal).

MEANING OF FIRST APPEAL

The appeal from the original decree is also termed as first appeal. It may be filed on question of fact or on question of law or on mixed questions of fact and law. The Supreme Court in the case of Narendra Gopal Vidyarthi v. Rajat Vidyarthi[2]observed that the First Appellate Court under section 96 of the code is the last court of facts. The High Court in the second appeal under section 100 of the Code cannot interfere with the findings of fact recorded by the first appellate court and no doubt that it can be challenged in the second appeal but a question of law has to be formulated and framed by the High Court to that effect.

RIGHT OF FIRST APPEAL UNDER SECTION 96

This right is a substantive as well as vested right and it is not a mere matter of procedure. In Union of India v. Brigadier[3] it was held by the Supreme Court that the vested right of appeal can be taken away only by subsequent enactment if it is so provided expressly or by necessary implication, and not otherwise. Further in Garikapati Veeraya v. N.Subbaih Choudary[4] ,it was held by the Apex Court that the right to appeal was a vested right. The right to appeal is statutory in nature and it is not an inherent one nor a natural right as held by the SC in Mohd.Saud v. Dr.(Maj) Shaikh Mahfooz[5].

The ingredients of section 96 can be summed up as follows:

  1. an appeal shall lie from every decree passed by any court having original jurisdiction to the court authorized to hear appeals;
  2. the decree passed must be ex parte;
  3. no appeal from decree with the consent of parties;and
  4. no appeal,except on questions 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[6].

In Bhanu Kumar Jain v. Archana Kumar[7] the Supreme Court held that the appeal against an ex parte decree in terms of section 96(2) could be filed on the following grounds:

  • The material brought on record in the ex parte proceedings in the suit by the plaintiff would not entail a decree in his favour
  • The suit could not have been posted for an ex parte hearing

Further, in the case of Commissioner of Endowments v. Vittal Rao[8] the SC held that Section 96(3) is no bar for challenging the consent order on the ground of illegality and/or fraud.

APPEAL AGAINST PRELIMINARY DECREE, FINAL DECREE, JUDGEMENT FINDINGS AND DEAD PERSON

According to Section 97 of the Code where the party aggrieved by the preliminary decree does not appeal, then the party cannot be permitted to raise disputes on the correctness in any appeal preferred from the final decree[9].

The Code provides an appeal from decree and not judgement. The SC in State of M.P v. Pradeep Kumar[10] held that Rule 1,Order 41 shall apply, so far as may be, to appeals from appellate decrees and an aggrieved party may file an appeal against the judgement if a decree is not drawn by the court.

There is no appeal against mere findings which are recorded by a court. The findings must amount to either decree or an order. In the case of  Bamarasi v. Ram Phal [11] where a suit was dismissed, the defendant against whom some adverse finding has been recorded on some issue has no right of appeal and that cannot question the finding by instituting an appeal. Where a person files an appeal against another and later comes to know that the person is dead then the aggrieved person shall have the remedy to file a fresh appeal against the legal heirs of the deceased, taking into account the limitation period.

DECISION WHERE APPEAL IS HEARD BY TWO OR MORE JUDGES (SECTION 98)

Where the appeal is heard by two or more judges then-

1)it shall be decided by the majority opinion

2)if there is no majority opinion, then the judges may state the point of law which they differ and the appeal shall be heard upon that point only by one or more of other judges, and the point shall be decided by the majority of the judges including those who first heard it[12]

PROCEDURE

Rule 9,Order 41 of the Code states that an appeal must be accompanied by a memorandum of appeal along with the judgement or the decree passed by the lower court and it must endorse the date of presentation and register the appeal in a book which is kept for that purpose. Under Rule 10 the court may ask the appellant to furnish security for the cost of appeal and this is done in order to secure the respondent from the risk of further incurring of costs in the appeal procedure.

The general principle under Rule 11 is that the Appellate Court may dismiss the appeal ‘summarily’, if it finds that there is no prima facie merit in it after hearing the advocate of the appellant. So to conclude under Rule 11,Order 41 the Appellate Court has the power to dismiss the appeal after preliminary hearing[13].

DOCTRINE OF MERGER

This doctrine means that the decree passed by the lower or inferior court will merge into the decree passed by the superior court for all purposes.

The SC in Ram Chandra Abyankar v. Krishnaji Dalladarya[14] laid down three conditions for the application of this doctrine-

  1. The superior jurisdiction must be appellate or revisional in nature.
  2. Jurisdiction must have been exercised after the issuance of notice.
  3. After full hearing in the presence of both the parties ie, the appellant and the respondent.

POWERS OF APPELLATE COURT (SECTION 107)

Powers of the appellate court under the code can be summed up as follows:

  • Final determination of a case
  • Remand a case
  • Frame issues and refer for trial
  • Appreciate an evidence, take additional evidence or directs such evidence to be taken
  • Reversing the inference made by the lower court, if it is not supported with reasons

APPEAL TO SUPREME COURT (SECTION 109)

Subject to the provisions in Chapter IV of Part V of the Indian Constitution an appeal shall lie to the SC-

  • From any judgement, decree or final order in a civil proceeding of High Court
  • The case must involve substantial question of law of general importance
  • If the High Court thinks it fit that the particular question must be dealt by the SC

CONDITIONS OF SECOND APPEAL

Sections 100 to 103, Section 107&108 and Order 42 of Civil Procedure Code,1908 deals with appeals from Appellate Decree(Second Appeal).

According to Section 100 of the Code an appeal shall lie to the High Court,

  • If the Court is satisfied that the case involves a substantial question of law.
  • It must be an appellate decree passed ex parte.
  • The memorandum of appeal must state the substantial question of law and not fact which is wrongly determined[15].

Section 100(4) gives the power to the High Court to frame the question if it is satisfied that the case has certain substantial questions of law. further Section 100(5) states that the respondent at the hearing of the appeal may argue that the case does not involve such questions.

In Kamti Devi v. Poshi Ram[16] the Supreme Court concluded that the finding reached by the First Appellate Court cannot be interfered with the second appeal since no substantial question of law flowed out of such a finding. Further in the case of Commissioner v. Shanmugam[17] as well as in the State of Kerala v. Mohd. Kunhi[18] ,the SC reminded the High Court that it has no jurisdiction to interfere with the concurrent findings of the fact and in doing so it would go beyond the scope of section 100 of the Code.

SUBSTANTIAL QUESTION OF LAW

It is mandatory for parties approaching the High Court in an appeal, to state the substantial question of law in their memorandum. In Raghunath  Prashad Singh v. Deputy Commissioner of Partabgarh[19] the Privy Council held that what is a substantial question of law as between the parties would certainly depend upon the facts and circumstances of every case.The SC in Kashmir Singh v. Harnam Singh [20] held as follows-

“The proper test for determining whether a question of law raised in the case is substantial would, in our opinion,be whether it is of general importance or whether it is of general public importance or whether it directly and substantially affects the right of the parties and if so,whether it is either an open question in the sense that it is not finally settled by this court or by the Privy Council or by the Federal Court,or is not free from difficulty or calls for discussion of alternate views.If the question is set by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law.”[21]

In Wyawahare v. Madhukar Raghunath Bhave[22] the SC held that hearing of a second appeal without formulating the substantial question of law cannot be maintained.

To conclude, Section 100 states that the question raised in the appeal must be a substantial question of law implying real,important or essential and the High Court must be satisfied that the said question is an important question of law.

SECTION 100-A &SECTION 102

No appeal shall lie-

  1. Where appeal is heard and decided by a Single Judge or a High Court
  2. When the subject matter of the original suit is for recovery of money not exceeding twenty five thousand rupees[23]

 Section 101 states that no second appeal shall lie except on the grounds which are mentioned under section 100.

POWERS OF HIGH COURT TO DETERMINE THE ISSUE OF FACT (SECTION 103)

If the evidence on record are sufficient, the High Court may dismiss the appeal-

  • which is not determined by the lower appellate court or the Court of first instance or both;
  • which is being wrongly determined by such a court.

DISTINCTION BETWEEN FIRST APPEAL AND SECOND APPEAL

  • Section 96-99A, 107 and Order 41 deals with first appeal whereas Sections 100-103 and Order 42 deals with second appeal.
  • The first appeal lies against the decree passed by a court having original jurisdiction whereas the second appeal lies against a decree passed by the First Appellate Court.
  • The first appeal may be filed on questions of law, fact or mixed questions of law and fact whereas the second appeal strictly adheres to the substantial questions of law.
  • The first appeal can be entertained by any subordinate court but the second appeal can only be filed in High Court.
  • The memorandum of first appeal must set out the grounds of objections to the decree passed by the lower court but it is not so under second appeal.

[1] HENRY CAMPBELL BLACK,BLACK’S LAW DICTIONARY 124(St. Paul,Minn.West Publishing Co. 1968)

[2] Narendra Gopal Vidyarthi v. Rajat Vidyarti,(2009) 3 SCC 287.

[3]Union of India v. Brigadier AIR 2012 SC 1280.

[4] Garikapati Veeraya v. N.Subbiah Choudary AIR 1957 SC 540.

[5] Mohd.Saud v. Dr.(Maj) Shaikh Mahfooz AIR 2011 SC 485.

[6] The Civil Procedure Code, 1908,No.5,Acts of Parliament,1949(India).

[7]Bhanu Kumar Jain v. Archana Kumar  AIR 2005 SC 626.

[8] Commissioner of Endowments v. Vittal Rao  AIR 2005 SC 454.

[9] Supra Note 6

[10] State of M.P v. Pradeep Kumar 2000 7 SCC 372.

[11] Bamarasi v. Ram Phal AIR 2003 SC 1989.

[12] Supra Note 6

[13] Supra Note 6

[14]Ram Chandra Abyankar v. Krishnaji Dalladarya  AIR 1970 SC 1.

[15] Supra Note 6

[16] Kamti Devi v. Poshi Ram AIR 2001 SC 2226.

[17]Commissioner v. Shanmugam  AIR 2005 SC 770.

[18] State of Kerala v Mohd. Kunhi (2005) 10 SCC.

[19]Raghunath Prasad Singh v. Deputy Commissioner of Partabgarh  (1930) 32 BOMLR 129.

[20]Kashmir Singh v. Harnam Singh AIR 2008 SC 1749.

[21] Ibid

[22] Wyawahare v. Madhukar Raghunath Bhave AIR 2007 SC 3037.

[23] Supra Note 6


Authored By: Rana Banu, 10th Semester, SDM Law College, Mangalore.

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