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Provisions Relating To First And Second Appeal Against Original Decrees Laid Down In The Code Of Civil Procedure, 1908

Normally, one cannot except the final decision in the case. It is natural that any error of law or procedure might have crept in. for removing such errors, there is one method of appeal. Provisions have been made about appeal under section 96 to 99, Order 41 of the civil Procedure Code, 1908.

Where the Appeal can be made?

According to section 96 of the code an appeal shall be from every decree passed by any court exercising original jurisdiction the court authorized to hear appeals from the decisions of such court.

It means that the appeals against the decree passed by the court can be made to such court which is authorized to hear such appeals.

Examples- the appeal against the decree for Rs. 30,000 for recovery of money passed by the Civil Court (Senior Division) can be made to the district court, therefore, such appeal can be made to the court of district judge.

It is to be mentioned here that appeal can be made against the decree passed ex-parte.

Conditions under which appeal cannot be made:

Under sub-section 3 and 4 of section 96, the appeal cannot be made under the following conditions:
  1. Where the decree has been passed by the court with the consent of the parties.
  2. Where the cognizable suit by small causes court is such in which there is no question of law is involved and the value of the suit does not exceed Rs. 10,000/- and
  3. Appeal against the final decree where the appeal against preliminary decree has not been made (Section 97).
Therefore, no appeal can be made in the above three cases. Provision has been made under sub-section 4 of section 96 that where any party is aggrieved with the preliminary decree but he does not make appeal against such decree, then he will be precluded from making appeal against the final decree (Kaushalya Devi Vs Baijnath, A.I.R. 1961, Sc 790).

By whom appeal can be made?

Appeal can be instituted by the following persons:
  1. persons who are aggrieved with the judgement and decree;
  2. on death of such person, by his legal representative;
  3. by the transfer of the interest of such person provided his name is on record and is bound by the decree upto the limit of his interest, and
  4. by the purchaser of the property sold in auction.
Normally, no person is entitled to make appeal unless he is party to the case.

Judgment section 98

After hearing the parties or their pleader, the appellate court shall pronounce the judgment in open court, either at once or on some future date after giving notice to the parties or their pleader.

The judgment of the appellate court shall be in writing and shall state:

  1. the points for determination
  2. the decision thereon
  3. the reasons for decisions
  4. Where the appeal is allowed and decree of the lower court is reversed or varied, the relief to which the appellant is entitled.

Not to interfere with decree for technical errors section 99
Section 99 of the code enacts that a decree which is otherwise correct on merits and is within the jurisdiction of the court should not be upset merely for technical and immaterial defects.

Object of section 99

The underlying object of section 99 is to prevent technicalities from overcoming the ends of justice and from operating as means of circuitry of litigation

Procedure of Appeal:

Provision has been made for procedure of appeal under order 41 of the code. According to this:
  1. Every appeal in the form of memorandum of appeal duty signed by the appellant or his advocate will be submitted before the competent officer of the court (Order 41, Rule 1).
    If signature are put by the advocate on such memorandum, then it is necessary to enclose Vakalatnama with it (Mrs Parwati V/s Anand Prakash, A.I.R. 1987, Delhi 90).
  2. The copy of order appealed against must be enclosed with the memorandum of appeal.

    In one case, the copy of the order appealed against was not enclosed with the memorandum but filed after before determination of such appeal. It was accepted by the court (Bhagat Ram Vs Basant Ram, A.I.R. 1981, NOC 152, Himachal Pradesh).
  3. In the memorandum of appeal, the objections to the decree will be stated briefly under different heads, without any detailed particulars and arguments and such grounds will be numbered.

    So long as these grounds of objections are not stated in the memorandum, they will not be emphased and the court will not hear them.

    It depends upon the discretion of the court to consider and hear those grounds which have not been mentioned in the memorandum. But decision will not be made on these grounds till the opportunity of hearing has been given to the party affected thereby (Order 41, Rule 2).
  4. It the memorandum of appeal has not been made in the specified manner, then it will be rejected by the court immediately or may be returned to the appellant for amendment (Order 41, Rule 3)
  5. If the memorandum of appeal is accepted by the court then the date of submission will be recorded on it and registered in the register of appeal (Order 41, Rule 9).
  6. After the institution of memorandum of appeal, the stay order will be passed by the appellant court to stay the proceedings of subordinate court.

    But such order may be issued only when the court decided that there may be a severe loss to the appellant if such order is not issued. If the execution of decree is stopped then the interest of the public is also to be taken into account (State of Gujarat Vs Central Bank of Ahmedabad, A.I.R. 1987, Gujarat 113).

    It is to mentioned here that the power to stay the proceedings lies with the appellant court and not with the execution court (Maya Devi Vs M/s Dharampal Madanlal, A.I.R. 1989, NOC 31, Punjab and Haryana).
  7. If on the day fixed for hearing or on the day for which the hearing has been postponed, the appellant such appeal (Order 41, Rule 17).
  8. If on the day fixed for hearing of appeal, if the appellant does not present himself, the court may hear it ex-parte.

    But if the appellant gives sufficient reason for his absence and the court if convinced may criminal ex-parte order (order 41, Rule 21). Similarly, if sufficient reason is shown for absence, then the order may be issued to retake the appeal for hearing (Order 41, Rule 19).
  9. The court may be take additional evidence in the case provided this evidence is material in deciding the appeal on the basis of its merits and demerits and thus evidence could not be made available at the trial of the case (Order 41, Rule 27).
  10. Finally, the court while giving proper opportunity of hearing to both the parties, the court will announce its decision on appeal in open court (Order 41, Rule 30).
    Such decision must be announced immediately after hearing the appeal. In a particular case, the decision was announced after five years which was considered unjust. (Bhagwandas fatechand Daswani Vs HPA International, A.I.R. 2000, SC 775).

Second appeal:
Provision has been made for second appeal under sections 100 to 103 and order 42 of the code.

According to section 100, the second appeal can be made against decision made in first appeal under the following conditions:
  1. where any substantial question of law is involved or
  2. where ex-parte decree has been passed in first appeal thus it is clear that the second appeal can be heard on the ground of substantial question of law otherwise not (Monika Pusali Vs Anjali Amma, A.I.R. 2005 SC 1777).
    The second appeal cannot be made on the finding of fact (Kalidas Vs Ram Singh, AI.R. 2995, NOC 103, Himachal Pradesh).
    In Govind Raju Vs Mariyamman (A.I.R. 2005, SC 1008), the Supreme Court considered such question as the question of law
  3. which is debatable;
  4. which has not been decided earlier by the law of the land;
  5. which is affecting the material rights of the parties.

Second appeal on no other grounds section 101

No second appeal shall lie except on the ground mentioned in section 100.� therefore, it specifically bars the second appeal on any other ground mentioned in Section 100. The grounds on which a Second Appeal shall lie are:
  1. That the appeal should involve a substantial question of law that may either be presented by the party in a memorandum of appeal or the court may itself formulate such question;
  2. That the second appeal may be brought forth where the decree was passed ex parte;
Sir Chunilal V. Mehta And Sons, Ltd. vs The Century Spinning And Manufacturing Co., Ltd. It was held by the court that The proper test for determining whether a question of law raised in the case is of general public importance or whether it directly and substantially affects the rights of the parties.

No Second Appeal in certain cases section 102

The scope of application of a second appeal has been made limited by Section 102 to the cases wherein the subject matter of the original suit should exceed three thousand rupees.
Section 102 reads as:
No second appeal in certain suits-No second appeal shall lie 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 three thousand rupees.

Question of fact:
The general rule is that the High Court shall only entertain matters involving a substantial question of law but Section 103 serves a supplementary to this.

Section 103 states:
Power of High Court to determine issues of fact- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal:
  1. Which has not been determined by the lower Appellate Court or both by the Court of the first instance and the lower Appellate Court, or
  2. Which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is referred to in section 100.
The particular section talks of two situations when a question of fact can be dealt with by the court in a second appeal. Firstly, when a necessary issue has not been determined by either the Lower Court or the Court of the first instance. Secondly, when the necessary issue has been wrongly determined by the Courts on the substantial question of law which can properly be the subject matter of the second appeal under Section 100.

In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors the question came up before the court that whether the compromise decree was obtained by fraud. The court held that though it is purely a question of fact none of the lower courts has dealt with the question whether the decree was obtained by committing a fraud on the Court and hence, this court can look into the question of fact by exercising its power under Section 103.

Appeal from order section 104 and 106

Section 104 to 106 and order 42 deals with appeals from orders. They state that certain order are appealable. No appeal lies against other order. But those orders can be attacked in an appeal from the final decree. They also provide for the forum of an appeal.

Order has been defined on formal expression of any decision of a civil court which is not a decree. Thus an adjudication of a court which does not fall within decree is an order.

Appealable orders Section 104 orders 43:

An appeal shall lie from the following order:

  1. An order awarding compensatory costs in respect of false or defence (sec. 35A) such appeal howeer is limited to two grounds. a) No order could have been made. b) An order for less amount ought to have been made.
  2. An order refusing leave to institute a suit against public nuisance (sec. 91)
  3. An order awarding compensation for abtaining arrest or detention in civil prison of any except where such arrest or detention is in execution of a decree.
  4. An order refusing leave to institute a suit in case of breach of trust section 92
  5. An order retuning a plaint to be presented to the proper court.
  6. An order rejecting an application to set aside the dismissal of a suit for default
  7. An order rejecting an application to set aside an ex-parte decree.
  8. An order objecting to the draft of a document of an endorsement on a negotiable instrument.
  9. An order setting aside or refusing to set aside a sale.
  10. An order rejecting an application to set-aside orders passed ex-parte in execution proceeding.
  11. An order refusing to set aside the abetment or dismissal of a suit.
  12. An order rejecting an application for permission to sue as an indigent person.
  13. An order for attachment of property or detention of a person dis-obeying an order of injunction.
  14. An order discharging, varying or setting aside injunction.
  15. An order of remand.
  16. An order granting an application for review.

Forum of appeal Sec. 106- Appeal from orders in cases in which they are appeal able lie from the decree in the suit in which the order is made. Where such order is made by a court other than a High Court in the exercise of appellate jurisdiction.

  1. The provisions relating to first appeal shall apply to appeals from orders also.
  2. An appeal from an order can be filed in High Court within 90 days and in another court within 30 days from the date of the orders.
    Appeals to the Supreme Court Sec. 109- Appeal to the supreme court are governed by the provisions of Art. 132, 133 & 134-A of the constitution of India with regard to civil matters subject to the provisions of the constitution, are 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 certified that:
    1. The case involved a substantial question of law of general importance.
    2. In the opinion of the High Court the said question needs to be decided by the supreme court.
    Sec. 109 reads with order 45 deals with appeal to the Supreme Court.

Conditions-sec. 109, order 45 rule 3, an appeal would lie to the Supreme Court under sec. 109 of the code only if the following conditions are fulfilled:

  1. A judgment, decree or Final order must have been passed by the High Court- An appeal lies to the Supreme Court only against a judgment, decree or final order of the High Court. It must be one which purports to put an end to the litigation between the parties. No certificate can be granted in respect of an interlocutory order.
  2. Substantial question of law of General importance- an appeal would lie to the Supreme Court if the High Court certifies that the case involves a substantial question of law of general importance. The substantial question to law must be such that apart from the parties to the litigation, the general public should be interested in determination of such question by the Supreme Court.
  3. Need to decide by Supreme Court- it is not sufficient that the case involves a substantial question of law of general importance but in addition to it, the High Court must be of the opinion that such question needs to be decided by the Supreme Court. the word 'need' suggests that when two views are possible regarding the question and the High Court takes one view of the said view.

    Procedure at hearing- the party desiring to appeal to the Supreme Court whose decree is sought to be appealed from, ordinary such a petition should state the ground of any pray for the issue of a certificate:
    1. The case involves the substantial question of law of general importance.
    2. In the opinion of the High Court said question need to be decided by the Supreme Court.
After notice to the other side, the court may grant or refuse to grant the certificate.

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