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Appeal under Code of Civil Procedure

The word appeal has nowhere defined in the Code of Civil Procedure. The term appeal means the judicial examination by a higher court of the decision of an inferior court. Appeal in other word means the removal of a cause from an inferior court to superior court for purpose of testing the soundness of the decision of inferior court. An Appeal in legal parlance is held to mean the removal of a cause from an inferior or subordinate to superior tribunal or forum in order to test and scrutinize the corrections of impugned decisions.

In Shankar V. Krishnaji [1]it was held that, The right of appeal is one of entering a superior court and invoking its aid and interposition to redress the error of court below. The principle of merger of orders of inferior courts would not become affected or inapplicable by making any distinction between a petition for revision and appeal.

Section 96 of Code of Civil Producer[2]

Appeal from original decree:

  1. Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, 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.

  2. An appeal may lie from an original decree passed ex parte.

  3. No appeal shall lie from a decree passed by the Court with the consent of parties

  4. No appeal shall lie, except on a question 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.]]
Section 96 provides for appeal from original decree. But, no appeal lies from a decree passed by the court with the consent of parties. It is valuable right and both the parties have right to be heard. A right of appeal must exist either under the specific provisions of a statute or under the rules having the force of law.

Essentials of appeal

Every appeal has three elements
  1. A decision (which usually is a Judgement of court or ruling of an administrative authority)
  2. A person aggrieved (who is often , though not necessarily, a party to original proceedings)
  3. A reviewing body ready and willing to entertain an appeal.

Scope of section 96

It lays down some primary rules regarding appeals from original decrees which are as follows:

  1. An appeal can be even from an ex-parte decree.
  2. But no appeal lies from a consent decree.
  3. No appeal lies from a decree in any suit cognizable by a small cause court except on a question of law , and the value of the subject matter of the original suit which does not exceed Rs. 3000.
  4. An appeal lies under section 96 only from a decree and does not lie from a mere finding. Section 104 of the code deals with appeal from orders.

In Zair Hussain Khan V. Khurshed Jan [3]it was held by Allahabad High Court that, it is a general principle of the law that a right of appeal is not to be assumed in any matter which comes under the consideration of court . Such right must be given by statute or by some authority equivalent to a statute.

Right to appeal

In Anant Mills Co. Ltd. V. State of Gujarat [4]it was held that, it is a well settled that an appeal is a creature of statute and there is no right of appeal unless it is clearly and in express terms by statute. An appeal sometimes is a matter of right , sometimes it depends upon discretion of the court to which such appeals lies.

Who may appeal?

Section 96 of the code states that the right of appeal from one decree passed by any court exercising original jurisdiction. It does not refer to or enumerate the persons who may file an appeal.

But before an appeal can be filed, two conditions must be satisfied:

  1. The subject matter of appeal must be decree, that is a conclusive determination of rights of parties with regard to all or any of matters in controversy in the suit; and
  2. The party appealing must have been adversely affected by such determination.
In Adi Pherozshah Gandhi V. H.M.Seervai[5] it was held that, the test whether a person is an aggrieved person is to see whether he has genuine grievance because an order has been made which prejudicially affects his interests either pecuniary or otherwise.

Appeal by one Plaintiff against another Plaintiff
As a general rule, one Plaintiff cannot file an appeal against co-Plaintiff, but, where the matter in controversy in the suit forms subject matter of dispute between plaintiff inter se , an appeal can be filed by one Plaintiff against another. This was held in Vithu V. Bhima[6].

Appeal by one defendant against another defendant

The principal which applies to filling of appeal by one plaintiff against another plaintiff equally applies to an appeal by one defendant against another defendant. It is only where the dispute is not only between the plaintiffs and the defendants but, between defendants inter se and such decision adversely affects one defendant against the other such appeal would be competent.
No appeal can be instituted against dead person. Such an appeal, therefore can be regarded as stillborn. In such cases, an application can be made praying for the substitution of legal representatives of the deceased respondent who died prior to filling of an appeal.

Requirements of appeal

In order that an appeal may be said valid, following requirements must be complied:

  1. It must be in form of memorandum.
  2. It must be signed by the appellant or his pleader.
  3. It must be resented to court or to such officer as authorized.
  4. The memorandum must be accompanied by certified copy of the Judgement.

Power of Appellate court

The power of appellate court are mentioned under section 107 of Code of Civil Procedure which provides that appellate court shall have the same powers as are conferred on the original court. If the trial court can dispose of a case finally, appellate court can also by virtue of clause (a) of section 107 (1) of the code determine the case finally was held in State of Punajb V. Bakshis Singh[7].

Distinction between Suit and Appeal

Sr no Suit Appeal
1 A suit is where a cause of action is created and issues are disputed on questions of both facts and law. An appeal only reviews and corrects proceedings in a case which already is constituted, but does not create a cause
2 A suit is an attempt to archive an end via a legal producer instituted in a court for someone claim. An appeal is continuation of a suit.
3 A suit is filed in the trial courts. An appeal is filed in an appellate court for purpose of reviewing the decision of court.

  3. Book Code of Civil Procedure by M.P.Jain
  6. Book of Code of Civil Procedure by M.P.Jain

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