Cpc Project

PROJECT WORK Appeals under Civil Procedure

SUBMITTED TO:

SUBMITTED BY:

Dr.KARAN JAWANDA

Lakhveer Singh

UILS

B.com.L.L.B(Hons.)

Panjab University, Chd.

Roll no. 146/15

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ACKNOWLEDGEMENT

Any work requires the effort of many people and this is no different. First of all, I want to express my heartiest thank my teacher DR. KARAN JAWANDA for firstly making me understand the contents of my topic and then giving me a wonderful opportunity to present this topic in form of an assignment. His support and teaching helped me a lot to complete this assignment. I would also like to thank my friends who were always available to me for help and also helped me collect data for my project through various sources. They also provided me with material I needed and made my work as easy as possible. Regardless of anything, I wish to express my gratitude to those who may have contributed to this assignment, even through anonymously. Lakhveer Singh

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Introduction Any person who feels aggrieved by any decree or order of the court may prefer an appeal in the superior court if the appeal is provided against that decree or order. A right to appeal is not a natural or an inherent right. An appeal is a creature of the statute and there is no right of appeal unless it is given clearly and in express terms. It is a vested right and accrues to the litigant and exists as on and from the date the lies commences. The expression “appeal” has not been defined in the code, but it may be defined as the judicial examination of the decision by a higher court of the decision of an inferior court1 . It means removal of a cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is thus a remedy provided by law for getting the decree of the lower court set aside. In other words, it is a complaint made to the higher court that the decree passed by the lower court is unsound and wrong. The right to appeal must, at this juncture, be compared and distinguished from a right to file a suit.2 As said, the right to appeal is a statutory right and any such right must have the express authority of a law. The right to sue or to file a suit is, however, an inherent right and no express authorization from any statute may be required to institute a suit. It is enough that no statute expressly bars the institution of such suit.the appellate court would give weight to that finding, but where disbelief is based upon comparison of the evidence given, the appellate court can arrive at an independent decision.3 Appeal under the statutory law:Sections 96-112 and Orders 41 to 45 of the Code of Civil Procedure,1908 deals with appeal  First appeals: Ss. 96-99A, 107 and Order XLI.  Second Appeals: Ss. 100-103, 108 and Order XLII.  Appeals from orders: Ss. 104 -108 and Order XLIII.  Appeals to the Supreme Court: Sections 109, 112 and Order XLV.  Appeals by indigent people: Order XLIV.

1Thakker,

C.K., Civil Procedure Code, 3rd Edition, Eastern book Company, p - 260 (1931-32) 59 IA 283 : AIR 1932 PC 165 3 Akbar vs W. 8 DLR (PC) 19 2

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It is in the background information provided here that the aspect of an appeal being a continuation of the suit will be examined. Meaning of Appeal The expression “appeal” has not been defined in the Code. According to the dictionary meaning, “appeal” is “the judicial examination of the decision by a higher court of the decision of an inferior court” . Stated simply, appeal is a proceeding by which the defeated party approaches a higher authority or court reversed. In NagendraNathDey v. Suresh Chandra Dey4 , speaking for the judicial Committee of Privy Council, Sir DinshaMullastated: “There is no definition of appeal in the code of civil procedure, but their lordships have no doubt that any application by a party to an appellate court, asking to set aside or reverse a decision of a subordinate court, is an appeal within the ordinary acceptation of the term.”

When a party to a

decision of the court is not satisfied with the verdict and decides to appeal against the decision, it is said to be an appeal. There are always people who feel cheated or disappointed by a verdict of the court. These people seek relief from the judgment as they appeal in a higher court of law for the reversal or modification of the verdict. An appeal is, therefore, a plea for a second judgment on the same matter by the aggrieved party. In most judicial systems, an appeal is considered a right of the people and a tool to seek redressal if a party feels it has been wronged by the decision of the court. 5An appeal is always preferred in a higher court of law. In case an appeal fails, a second appeal can be filed. An appeal is always filed by one of the concerned parties.6 Essentials elements of appeal7 Every appeal has three basic elements: 1.

A decision (usually a judgment of a court or the ruling of an administrative authority);

2.

A person aggrieved (who is often, though not necessarily, a party to the original

proceeding); and 4

(1931-32) 59 IA 283 : AIR 1932 PC 165 Attorney General v. Sillem,(1864) 10 HLC 704 at p.715:11 ER 1200 at 1209 6Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, 2014,P,255 7iBID 5

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3.

A reviewing body ready and willing to entertain an appeal.

Procedure Related to Appeal8 The appeal being the continuation of the suit is held not without any reason; it may be examined in the light of the following propositions: 1.

The appellate court has all the powers and has to do all those things necessary that a trial

court has and has to do. In this sense, even when the case goes on appeal, it is just the name that has undergone a change; the form and substance still remain the same. 2.

In the same vein as above, the appellate court has to do all that has been done by the trail

court in that particular case, and then either agree or disagree from the trial court. 3.

Hence, even the appellate court has to write a judgement and pass a decree. In the event

of the court upholding the lower court’s decision, the appellate court may write down the same decree, without changing it, and the decree will now be deemed to have been that of the appellate court. 4.

Finally, the suit is not deemed to be “finally concluded” for matters of res judicata till the

appeals are over. This implies that it is deemed that the same suit is progress even while the appeals are on. It is only when the courts have finally come to a conclusion, after all possible appeals have been used and tried by the appellant, that the suit is said to have been conclusively decided. The above said propositions point out, in essence, what is implied when it is said that the appeal is a continuation of the suit. The various provisions relating to the appeals have already been stated in the introduction to this work. A detailed look into these provisions at this juncture becomes pertinent. Compare between Right to suit and right to appeal9 There is a fundamental difference between suit and appeal and the same is being explained properly by J. Chandrachudin Ganga Bai v. Vijay Kumar in the following words: 8Order

XLI of the Code of Civil Procedure,1908 v. Inderjit

9Dayawati

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“There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one’s peril, bring a suit of one’s choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law.

First appeal under civil procedure Appeal from Original decree10 Section 96 of the code of Civil Procedure,1908 deals with 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 cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten] thousand rupees. Who may Appeal? Section 96 of the Code recognizes the right of appeal from every decree passed by any court exercising original jurisdiction. It does not refer to oe\r enumerate the persons who may file an appeal. But before an appeal can be filed under this section, two conditions must be satisfied: 1.

The subject-matter of the appeal must be a ‘decree’, that is, a conclusive determination of

‘the rights of the parties with regard to all or any of the matters in controversy in the suit”, and

10Section

96

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2.

The party appealing must have been adversely affected by such determination.

The ordinary rule is that only a party to a suit adversely affected by the decree or any of his representatives-in-interest may file an appeal. But a person who is not a party to a decree or order may, with the leave of the court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it.11 It was observed in the case of Krishna Chandra Golder v. Mahesh Chandra Sahu , “the question who may appeal is determinable by the common sense of consideration that there can be no appeal where there is nothing to appeal about.”12 From the above general principles, the following persons are entitled to appeal under this section: 1.

Any party to the suit, who is adversely affected by the decree or the transferee of interest

of such party, has been adversely affected by the decree provided his name was entered into record of suit. 2.

A person claiming under a party to the suit or a transferee of the interests of such party,

who, so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit. 3.

A guardian ad litem appointed by the court in a suit by or against a minor.

4.

Any other person, with the leave of the court, if he is adversely affected by the decree.

Who Cannot Appeal?13 If a party agrees not to appeal or waives his right to appeal, he cannot file an appeal and will be bound by an agreement if otherwise such agreement is valid. 14 Such an agreement must be clear and unambiguous. Whether a party has or has not waived his right of appeal depends upon the

11Biscttitsvs 12Krishna

Prince Hotel, l2 BLC 169 Chandra Golder v. Mahesh Chandra Sahu

13ibid 14Amir

Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC)

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facts and circumstances of each case.15 Similarly, where a party has accepted the benefits under a decree of the court, he can be stopped from questioning the legality of the decree.16 As Scrutton, L.J. observed, “It startles me that a person can say that judgment is wrong and at the same time accept the payment under the judgment as being right….In my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being bad.” Finally, the vested right of appeal is destroyed if the court to which an appeal lies is abolished altogether with Appeal Against Ex Parte Decree17 Section 96(2) of the Code of Civil Procedure,1908 deals with Appeal Against Ex Parte Decree. The defendant, against whom an ex parte decree has been passed, has the following remedies available to him:18 (1) Apply to the court by which such decree is passed to set it aside: Order IX Rule 13; or (2) Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115 where no appeal lies); (3) Apply for review: Order XLVII Rule 1; or (4) File a suit on the ground of fraud. The above remedies are concurrent and they can be prosecuted simultaneously or concurrently. As has been rightly said: “Where two proceedings or two remedies are provided by a statute, one of them must not be taken as operating in derogation of the other.”19 In an appeal against an ex parte decree, the appellate court is competent to go into the question of the propriety or otherwise of the ex parte decree passed by the trial court. 15ProtapChunder

v. Arathoon, ILR (1882) 8 Cal 455 Ltd. v. Hill Crest Oil Co., (1926) 1 KB 348 17AnwaravsShahttnetrctz. 43 DLR (AD) 156 18Section 96(2) 19Ajudhia Prasad v. Balmukund, ILR (1866) 8 All 354 (FB) 16Dexters

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No Appeal against Consent Decree20 Section 96(3) declares that no appeal shall lie against a consent decree. This provision is based on the broad principle of estoppels. It presupposes that the parties to an action can, expressly or impliedly, waive or forgo their right of appeal by any lawful agreement or compromise or even by conduct. The consideration for the agreement involved in a consent decree is that both the sides give up their right of appeal.21 Once the decree is shown to have been passed with the consent of the parties, Section 96(3) becomes operative and binds them. It creates an estoppel between the parties as a judgment on contest.22 Where there is a partial compromise and adjustment of a suit and a decree is passed in accordance with it, the decree to that extent is a consent decree and is not appealable. This provision, however, does not apply where the factum of compromise is in dispute or the compromise decree is challenged on the ground that such compromise had not been arrived at lawfully. No appeal in petty cases:- section 96 (4) Section 96 (4) has been inserted by the amendment act of 1976. It bars appeals except on points of law in certain cases. Prior to 1976, section 96 allowed the first appeal against every decree. Now, sub section (4) bars appeals on facts from decrees passed in petty suits where the amount or value of the subject matter of the original suit does not exceed ten thousand rupees, if the suits in which such decrees are passed are of a nature cognizable by courts of small causes. The underlying project in enancting the said provision is to reduce appeals in petty cases. Such restrictions are necessary in the interst of the litigants themselves. They should not be encouraged to appeal on facts in trivial cases. Appeal against dead person23 No appeal can be instituted against a dead person. Such an appeal, therefore, can be regarded as a “stillborn” appeal. In such cases, an application can be made praying for the substitution of the

20Section

96(3)

21KatikaraChintamani

Dora v. GuntreddiAnnamanaidu, (1974) 1 SCC 567 at pp. 584-85 Thakur Prasad v. Bhagwan Das, AIR 1985 MP 171 23ibid 22

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legal representatives of the deceased respondent who died prior to the filing of the appeal. In that case, the appeal can be taken to have been filed on the date of the application for substitution of the legal representatives. If, by that time, the appeal is time-barred, the appellant can seek condition of delay. Form of appeal :- rule 1-4 Section 96-99-A enact the substantive law as regards first appeals, while order 41 Lays down the procedure relating thereto. The expressions appeal and memorandum of appeal denote two different things. An appeal is the judicial examination by the higher court of the decision of a lower court. The memorandum of appeal contains the grounds on which judicial examination is invited. For purposes of limitation and for the purposes of the rules of the courts, a memorandum of appeal is required to be filed. In order that an appeal may be said to be validly presented, the following requirements must be complied with:1. It must be in the form of a memorandum setting forth the grounds of objections to the decree appealed from; 2. It must be signed by the appellant or his pleader; 3. It must be presented to the court or to such officer as it appointed; 4. The memorandum must be accompanied by a copy of judgement; 5. Where the appeal is against a money decree, the appellant must deposit the decretal amount or furnish the security in respect thereof as per the direction of the court. A memorandum of appeal should be prepared after carefully considering (i) the pleadings; (ii) the issues; (iii) the findings thereon; (iv) the judgment; and (v) the decree. Rule 4 provides that where a decree proceeds upon a ground common to all the plaintiffs or defendants, any one of the plaintiff or defendants may appeal from the whole decree, and thereupon the appellate court can reverse or vary the decree in favour of all the plaintiff or the defendants, as the case may be. Condonation of delay :- rule 3-A Rule 3-A has been inserted by the Amendment Act of 1976. It provides that where an appeal has been presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application that the applicant had sufficient cause for cannot preferring the appeal within time. As observed by the supreme court in State of M.P v. Pradeep Kumar, the object of this provision is twofold; firstly, to inform the appellant that the delayed appeal will not be entertained unless it is accompanied by an application explaining the delay; and secondly, to communicate to the 10

respondent that it may not be necessary for him to get ready on merits as the court has to first deal with an application of condonation of the delay ass a condition precedent. The provision, is , however, directory and not mandatory. If the memorandum of appeal is filed without an accompanying application for condonation of delay, the consequences is not necessarily fatal. The defeat is curable. Stay by Appellate Court24 (1) 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. An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.25 (2) Stay by Court which passed the decree- Where an application is made for stay of execution of an appeal able decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied(a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant far the due performance of such decree or order as may ultimately be binding upon him. 24Abu 25

vsSujayat. 3l DLR (AD) 326 . Dev,anvsBangaldesh. 43 DLR 221

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(4) [Subject to the provisions of sub-rule (3)], the Court may make an ex parte order for stay of execution pending the hearing of the application. (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree. Security in case of order for execution of decree appealed from26 (1) Where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security. (2) Where an order has been made for the sale of immovable property in execution of a decree and an appeal is pending from such decree, the sale shall, on the application of the judgementdebtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of. Rule 8. Exercise of powers in appeal from order made in execution of decree The powers conferred by rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree. Presentation of appeal :- rules 9-10 Rule 9 states that the court from whose decree an appeal lies shall entertain the memorandum of appeal, shall make an endorsement thereon and shall register the appeal in the register of appeals. Rule 10 the appellate court may at its discretion require the appellate to furnish security for the costs of the appeal or of the suit or of both. Where the appellate is residing out of India and does not possess sufficient immovable property within India other than the subject matter of the appeal, it is obligatory on the court to demand security in such cases.

26appealable

. Shah vsGhulam, 19 DLR (SC) 143'

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The object of rule 10 is to secure the respondent from the risk of having to incur further costs in an appeal which he might otherwise never recover from the appellant. An order for furnishing security may be made either before the respondent is called upon to appear and answer or afterwards on his application. Where the appellant fails to furnish security within the time granted by the court or the time subsequently extended by it, the court shall reject the appeal. The appellate court may, however at its discretion restore an appeal which has been rejected for failure to give security for costs. An application for restoration can be filed within thirty days from the date of the rejection of an appeal. Summary dismissal : rules 11-11A Rule 11 deals with the power of the appellate court to dismiss an appeal summarily. This rule refers to a stage after the memorandum of appeal has been filed and the appeal has been registered under rule 9. Rule 11 has to be read with rule 11-A which enjoins an appellate court to hear every appeal expeditiously and to make all endeavours to conclude admission hearing within 60 days of institution thereof. Rule 11 embodies a general principle whenever an appeal is preferred, the appellate court is entitled, after hearing the appellate or his advocate, to reject the appeal summarily if prima facia there is no substance in it. The discretion, however, must be exercised judiciously and not arbitrarily. Such power should be used very sparingly and only in exceptional cases. When an appeal raises traible issues, it should not be summarily dismissed. In U.P AVAS EVAM VIKAS PARISHAD V. SHEO NARAIN KUSHWAHA, the Supreme court observed that the order 41 , rule 11 of CPC enables an appellate court to dismiss an appeal at a preliminary hearing without calling for record of the trail court and without issuing notice to the respondent, if it is satisfied that the appeal has no merit. It, however does not state that such dismissal can be without recording reasons. A high court cannot dismiss first appeal by one-line order (Appeal is dismissed). Procedure at hearing : rules 16-21 a. Right to begin : rule 16 The appellate has a right to begin. After hearing the appellate in support of appeal, if the court finds no substance in the appeal, it may dismiss the appeal at once without calling upon the respondent to reply. But if the appellate court does not dismiss the appeal at once, it will hear the respondent against appeal and appellate shall then be entitled to reply. b. Dismissal for default and restoaration; rule 17-19 If the appellate does not appear when the appeal is called on for hearing, the court may dismiss the appeal in default. The court, however, cannot dismiss it on merits. Where the appeal has been dismissed for default or for non-payment of procees fees, the appellate may apply to the appellate court for the restoration of appeal. On sufficient cause being shown, the appellate court 13

shall restore the appeal on such terms as to costs or otherwise as it thinks fit. The court may require the counsel to go on for hearing after restoration and may refuse to restore the matter for further adjournment. Appearance of a party or his advocate and prayer for recalling of an order of dismissal for default may be a good ground for restoring a matter but it cannot be said to be a good ground for restoration of the matter for hearing in future. In other words,” a matter may be restored for hearning and not for adjournment.” c. Ex parte hearing and rehearing: rule 17,21 Where the appellate appears and the respondent does not appear when the appeal is called on for hearing, the appal shall be heard ex parte. If the judgement is pronounced against the respondent, he may apply to the appellate court for rehearing of the appeal. If he satisfies the court that the notice of appeal was not duly served upon him or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall rehear the appeal on such terms as to costs or otherwise as if thinks fit.27 d. Addition of respondent: rule 20 Where it appears to the appellate court at the hearing of the appeal that any person who was a party to the suit in the trail court but who has not been made a party to the appeal is interested in the result of the appeal, the court may adjourn the hearing of the appeal and direct that such person be joined as a respondent. Such addition of a respondent cannot be ordered after the expiry of the period of limitation for appeal, unless the reasons are recorded for doing so. The court can also make an order as to costs. Cross- objections: rule 22 Order 41 rule 22 is a special provision permitting the respondent who has not filed on appeal against the decree to object to the said decree by filing cross objection in the appeal filed by the appellate party. Filing of cross-objection by the respondent, however, is optional and voluntary. The appeal is by ht eaooellant against a respondent , the cross-objection must be an objection by a respondent against the appellant. Cross –objection can be filed within one month from the date of service on the respondent or his pleader of the notice of the date fixed for hearing of the appeal.28 Cross – objection against finding: rule 22(1) This is added by the amendement act, 1976 permits respondent to file cross-objection not only against decree but also against finding not amounting to decree. The position, however, as regards filing of appeal has remained as it was before the amendment. 27 28

Sourindra kumar v. state of W.B, 1982 R. 22 (1)

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Powers of appellate court: section 107, rules 23-29, 33 Section 96-108 and rules 23 to 33 of order 41 enumerate the powers of appellate court while hearing first appeals. They may be summarized thus : (a) (b) (c) (d) (e) (f)

Power to decide a case finally: section 107 (1) (a), rule 24 Power to remand29: section 107 (1) (b), rules 23-23-A Power to frame issues and refer them for trail: section 107 (1) (c), rules 25-26 Power to take additional evidence : section 107 (1) (d), rules 27-29 Power to modify decree: rule 33 Other powers : section 107 (2)

Duties of appellate court (a) (b) (c) (d)

Duty to decide appeal finally30 Duty not to interfere with decree for technical errors Duty to reappreciate evidence Duty to record reasons

Judgement : section 98, rules 30-34 After hearing the parties or their pleaders, the appellate court shall pronounce the judgement in open court, either at once or on some future date after giving notice to the parties or their pleaders. It is not necessary for the court to read out the whole judgement and it can read out only the final order but a copy of the whole judgement should be made available for the perusal of the parties or their pleaders after the judgement is pronounced. The judgement of the appellate court shall be in writing and shall state (i) the points for determination (ii) the decision thereon (iii) the reasons for the decision (iv) where the appeal is allowed and the decree of the lower court is reversed or varied, the relief to which the appellant is entitled. It shall be signed and dated by the judge or judges concurring therein. Decree: rule: 35-37 The decree of an appellate court shall contain (i) the date and the day on which the judgement was pronounced (ii) number of the appeal, names and description of the parties and a clear specification of the relief granted or other adjudication made (iii) the costs of the appeal and of the suit and by whom they are to be paid (iv) the date and signature of the judge or judges who passed it. A dissenting judge need not sign the decree.

29 30

R.23 State of T.N v. Ss. kumaraswami

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Second Appeal Sections 100 to 103, 107-108 and order 42 deal with second appeals. As already stated, a right of appeal is not a natural or inherent right attaching to litigation and it does not exist unless expressly conferred by a statute. Section 100 of the code allows filing of second appeals in the high court, if the high court is satisfied that “ the case involves a substantial question of law” but not on any other ground. Nature and scope :Section 100 of the code as amended by the amendment act of 1976 declares that an appeal shall lie to the high court from every decree passed in appeal by any court subordinate to the high court if the high court is satisfied that the case involves a substantial question of law. Such appeal lies also against an appellate decree passed ex-parte. The appellant has to precisely state in the memorandum of appeal the substantial question of law involved in appeal. Where the high court is satisfied that a substantial question of law is involved in the case, it shall formulate such question. The high court can hear the appeal on the question so formulated. It, however, permits the respondent to argue at the hearing of appeal that the question formulated by the court as a substantial question of law does not involve such question of law. But the high court has such power to hear the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. The high court, however, is required to record reason for such satisfaction. After the amendement in section 100, the following consequences ensued: (i) (ii) (iii) (iv) (v) (vi)

The high court must be satisfied that the case involves a subsential question of law, The memorandum of appeal must precisely state such question, The high court at the time of admitting the appeal should formulate such question, The appeal shall be heard only on that question, At the hearing of appeal, the respondent can argue that the case does not involve such question, The high court is, however, empowered to hear the second appeal on any other substantial question of law, not formulated by it, if it is satisfied that the appeal involves such question. The high court, however, has to record reasons for doing so.

Object:-Before the amendment act, 1976, the scope of second appeals was very wide. It has been rightly observed,” in dealing with second appeals, the courts had devised and successfully adopted several concepts, such as, a mixed question of fact and law, a legal inference to be drawn from the facts proved, and even the point that the case has not been property approached by the court below. This had created confusion in the minds of the public as to the legitimate scope of the second appeal under section 100 and had burdened the high courts with an unnecessary large number of second appeals. 16

Meaning :The legislature has not defined the term “ substantial question of law” . though the expression has been used in the constitution as well as in other statutes. The phrase, however, cannot be confined to a strait jacket and no rule of universal application can be formulated as to when it can be said that a substantial question of law has arisen. Existence of “substantial question of law” is a sine qua non for exercise of jurisdiction under section 100 CPC.31 No second appeal in certain cases:No second appeal is maintainable except on the grounds specified in the code. Likewise, no second appeal lies in any suit where the subject matter of the original suit for recovery of money does not exceed Rs.25000. if the subject matter involves other issues, second appeal is maintainable. Limitation :A second appeal lies to a high court with in a period of 90 days from the date of the decree appealed against.32 Form of appeal :Since the second appeal is maintainable only when it involves a subsential question of law, a memorandum of second appeal must precisely state such question. However, unlike the memorandum of first appeal, it need not set out the grounds of objections to the decree appealed from. If the high court is satisfied that the appeal involves such question, it will formulate the question and the hearing of appeal will be confined to that question only and the appellant cannot urge any other ground in appeal except with the leave of the court. But even if the high court fails to formulate a substantial question of law at the time of admitting the appeal, the appeal cannot be dismissed on that ground and the court can formulate such a question at a later stage also. In Sonubai Yeshwant v. Bala Govinda, Masodkar,j. rightly observed, (i) (ii) (iii)

31 32

Cast a duty on the court not to admit the appeals which do not involve substantial questions of law for such an appeal is not provided for; It requires the admission order to speak about and spell out such substantial question; On that question the notice has to be issued to the respondent, who are enabled to show that such question is neither a substantial question of law, nor arises in a given appeal.

SBI v. S.N GOYAL , 2008 Art. 116, limitation act

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Power of high court to decide issue of fact:Though no second appeal lies on a question of fact, when such appeal is already before the high court, and the evidence on record is sufficient, it may decide any issue of fact necessary for the disposal of the appeal, if such issue (a) has not been determined either by the trail court or by the appellate court or by both, (b) has been wrongly determined by such court or courts by reason of its decisions on a substantial question of law. This provision enables a high court to decide even an issue of fact in certain circumstances. Pending appeals :The right of appeal is a substantial right and is not merely a matter of procedure. Moreover, institute of a suit carries with it a right of appeal which is a vested right and such right is governed by the law prevailing at the date of filing of the suit or proceeding and it cannot be abrogated or curtailed by a subsequent legislation.33 On the above analogy, the right of second appeal which accured in favour of the appellant on the date of filing of the suit cannot be restricted or narrowed down by the amendement act of 1976 by which section 100 was amended. However, with a view to remove doubts, section 97 of the amendement act, 1976 relating to “ Repeal and saving “ clarifies that the provisions of the new section 100 will not affect any second appeal admitted before the date the amendment act came into force.

33

Colonial sagar v. Irving , 1905

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Appeals from orders Sections 104 to 108 and order 43 deal with appeals from orders. They state that certain order are appealable. No appeal lies against other orders. But those orders can be attacked in an appeal from the final decree. They also provide for the forum of an appeal. Order :“order” has been defined as “the formal expression of any decision of a civil court which is not a deree. Thus, an adjudication of a court which does not fall within “decree” is an “order”.34 Appealable orders:- section 104, order 43 (i)

An order awarding compensatory costs in respect of false or vexatious claims or defence. Section 35-a Such appeal , however is limited to two grounds, namely; (a) No such order could have been made; (b) An order for less amount ought to have been made. (ii) An order refusing leave to institute a suit against public nuisance; (iii) An order refusing leave to institute a suit in case of breach of trust; (iv) An order compensation for obtaining arrest, attachment or injuction on insufficient grounds; (v) An order imposing a fine, directing the arrest or detention in civil prison of any person of any person except where such arrest and detention is executed of a decree. (vi) An order returning a plaint tobe presented to the proper court. (vii) An order rejecting an application to set aside the dismissal of a suit for default. (viii) An order rejecting an application to set aside an ex parte decree. (ix) An order dismissing a suit or striking out defence for non- compliance with an order for discovery. (x) An order objecting to the draft of a document or an endorsement on a negotiable instrument. (xi) An order setting aside or refusing to set aside a sale. (xii) An order rejecting an application to set aside orders passed ex parte in execution proceedings. (xiii) An order refusing to set aside the abetment or dismissal of a suit. (xiv) An order giving or refusing to give leave to continue a suit by or against an assignee. (xv) An order rejecting an application to set aside the dismissal of a suit for not furnishing security for costs within time. (xvi) An order rejecting an application for permission to sue as an indigent person. (xvii) An order granting or refusing to grant interim injunction. 34

Vidya charan shukla v. khubchand bagal, 1964

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(xviii) An order discharging , varying or setting aside injuction. (xix) An order refusing the appeal heard ex parte. (xx) An order of remand. Other orders :- section 105, rule 1-a Section 105 enacts that every order whether appealable or not, except an order of remand, can be attacked in an appeal from the final decree on the ground (i) that there is an error, defect or irregularity in the order ii) that such error, defect or irregularity affects the decision of the court. The principle underlying section 105 is that when an interlocutory order is appealable, the party against whom such order is made is not bound to prefer an appeal against it. There is no such law which compels a party to appeal from every interlocutory order by which he may feel aggrieved. Section 105 makes it clear that an order appealable under section 104 may be questioned under this section in an appeal from the decree in the suit, even though no appeal has been preferred against the interlocutory order. Limitation :An appeal from an order can be filed in the high court within 90 days and in another court within thirty days from the date of order.35 Forum of appeal :- section 106 Appeals from orders in cases in which they are appealable, shall lie to the court to which an appeal would lie from the decree in the suit in which the order is made. Where such order is made by a court other then a high court in the exercise of appellate jurisdiction, an appeal shall lie to the high court. In certain circumstances , even a latters patent appeal is maintainable.

35

Art. 116, limitation act

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Appeals by Indigent Persons Order 33 deals with suits by indigent persons. Order 44 deals with appeals by indigent persons. The provisions of order 44 are subject in all matters to the provisions of order 33 insofar as they are applicable.36 Who may appeal:- rule 1 Any person entitled to prefer an appeal, who is unable to pay court fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person. Before the amendement of 1976, certain restrictions were imposed on the right of an indigent person to prefer an appeal under sub-rule 2 of rule 1. It provided that the court shall reject the application to appeal in forma pauperis, unless it is shown that the decree is contrary to law, or to some usage having the force of law, or is otherwise erroneous or unjust. Those restrictions were considered to be unjust, unfair, discriminatory and without any rational basis. The law commission, therefore, recommended that the said provisions be deleted. The said recommendation of the law commission was accepted and accordingly, sub rule 2 of rule 1 was deleted. The present position is that an indigent person may also file an appeal on all the grounds available to an ordinary person. An indigent person can also file cross- objections. Inquiry :- rule 3 Rule 3 provides that where the appellant was allowed to sue as an indigent person in the trial court , no fresh inquiry is necessary if the applicant files an affidavit to the effect that he has not ceased to be an indigent person since the date of the decree appealed from. However, if the government pleader or the respondent disputes the truth of the statement made in such affidavit, an inquiry into the question as to whether or not the applicant is an indigent person shall be held by the appellate court, or under its order by an officer of an court. Where it is alleged that the applicant became an indigent person after the date of the decree appealed from, the inquiry into the means of the applicant shall be made by the applicant court or under its order by an officer of that court or by the trail court if the appellate court considers it necessary in the circumstances of the case. Power and duty of court :At the stage of hearing of an application, the question to be considered by the court is whether the applicant is an indigent person. If he is, the application will be allowed and the memorandum of appeal will be registered. If he is not, the application will be rejected.

36

Dipo v. wassan singh, 1983

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Payment of court fees :- rule 2 The rejection of an application for leave to appeal as an indigent person does not ipso facto result in the rejection of the memorandum of appeal filed along with the application. It only means that the court is not satisfied about the claim of the applicant that he is an indigent person and nothing more. Rule 2 empowers the court to grant time for payment of court fees when the application for leave to appeal as an indigent person is rejected. Limitation :The period of limitation for presenting an application for leave to appeal as an indigent person to the high court is 60 days and to other courts is 30 days. 37

37

Art. 130, limitation act

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Appeals to Supreme Court Appeals to the Supreme court are governed by the provisions of articles 132, 133 and 134-A of the constitution of India with regard to civil matters. Subject to the provisions of the constitution, 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 that – (a) The case involes a substantial question of law of general importance; (b) In the opinion of the high court the said question needs to be decided by the supreme court.38 Section 109 and 112 read with order 45 deal with appeals to the supreme court. Conditions : section 109, order 45 rule 3 An appeal would lie to the supreme court under section 109 of the code only if the following conditions are fulfilled :(i) (ii) (iii)

(i)

A judgement, decree or final order must have been passed by the high court; A substantial question of law of general importance must have been involved in the case; In the opinion of the high court, the said question needs to be decided by the supreme court.

Judgement , decree or final order

An appeal lies to Supreme court only against a judgment, decree or final order of the high court. A judgment, decree or final order against which an appeal can be preferred to the Supreme court must be one which purports to put on end to the litigation between the parties. No certificate can be granted in respect of an interlocutory order.39 (ii)

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 expression substantial question of law of general importance has not been defined in the code, but it is clear that the high court can grant certificate under section 109 only when it is satisfied that the question of law involved in the case is not only substantial but also of general importance. In other words, the substantial question of 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, it 38 39

SS. 109, 112 Syedna taher saifuddin v. state of Bombay , 1958

23

would affect a large number of persons or a number of proceedings involving the same question. Therefore, if the question is settled by the Supreme court, the application of the principle to the facts of a particular case does not make the question a substantial question of law of general importance. (iii)

Need to be decided 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 words needs suggest that there has to be a necessity for a decision by the supreme court on the question and such a necessity can be said to exist when, for instance, two views are possible regarding the question and the high court takes one view of the said views. Such a necessity can also be said to exits when a different view has been expressed by another high court.40 Procedure at hearing (a) Application for leave and certificate of fitness Whoever desires to appeal to the supreme court shall apply by a petition to the court whose decree is sought to be appealed from. Ordinarily, such a petition should be decided with in sixty days from the date of filing of the petition. Every petition should state the grounds of appeal and pray for the issue a certificate (i) that the case involves a substantial question of law of general importance and (ii) that in the opinion of the court the said question needs to be decided by the Supreme Court. After notice to the other side, the court may grant or refuse to grant the certificate. (b) Effect of amendment in constitution These provisions, however, must be read in the light of and subject to article 134-A of the constitution. By the constitution , article 134-A has been inserted with effect from 1 august 1979. Is states that every high court, passing or making a judgement, decree, final order or sentence referred to in article 132 (1) , may , if it deems so to do, either sou motu or shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine whether a certificate may be given or not. (c ) security and deposit : rule 7,9 & 12 When the certificate is granted, the applicant should furnish security for the costs of the respondent and also deposit the expenses for translating, printing etc. within the stipulated

40

UOI v. hafiz mohd. , 1975

24

period. The court may revoke acceptance of security. The court has also the power to refund the balance of the deposit after necessary deductions for expenses. (d ) admission of appeal : rule 8 Where the directions regarding furnishing of security and making of deposit are carried out, the court shall declare the appeal admitted, give notice thereof to the respondent and transit the record to the Supreme Court. If the security furnished or the costs deposited appears to be inadequate , the court may order further security to be furnished or costs to be deposited. If the appellant fails to comply with such order, the proceedings shall be stayed and the appeal shall not proceed without an order of the Supreme Court. The execution of the decree shall not be stayed meanwhile. (e) Execution of orders of Supreme Court :- rules 15-16 The appeal will then be heard by the Supreme Court and an order will be made. Whoever desires to execute a decree or an order of the Supreme Court shall apply by a petition accompanied by a copy of the decree or order sought to be executed to the court from which the appeal was preferred to the Supreme Court. Such court shall transit the record of the Supreme Court to the trail court or to such court as to Supreme Court may direct , with the necessary directions of execution of the same. The court to which it is transmitted shall execute it in the same manner as it executes its own decree and orders. The orders relating to such execution shall be appealable in the same manner as the orders relating to the execution of its own decree. Appeals under constitution:Over and above article 132, 133 and 134-A , article 136 of the constitution confers very wide and plenary powers on the Supreme Court to grant special leave to appeal from any judgment, decree, determination passed by any court or tribunal. Section 112 of the code saves the powers conferred on the Supreme Court by the constitution and declares that nothing in the code of civil procedure would affect these powers.41

41

Lectures on administrative law, 2012

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Conclusion The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an application or petition to appeal higher Court for are consideration of the decision of appeal lower court. It is appeal proceeding for review to be carried out by appeal higher authority of appeal decision given by appeal lower one. In appeal is appeal creature of statute and right to appeal is neither an inherent nor natural right. Appellant aggrieved by appeal decree is not entitled as or right to appeal from decree. The right to appeal must be given by statute. Section 9 confers on appeal litigant, independently of any statute, appeal right to institute appeal suit of civil nature in appeal court of law. So he has appeal right to apply for execution of appeal decree passed in his favour, but he has no right to appeal from appeal decree or order made against him, unless the right is clearly conferred by statute. Section 96 of the Code gives appeal right to litigant to appeal from an original decree. Section 100 gives him appeal right to appeal from an appellate decree in certain cases. Section 109 gives him right to appeal to the Supreme Court in certain cases. Section 104 gives him right to appeal from orders as distinguished from decrees. As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesn’t arise when adverse decision is given, but on the day suit is instituted i.e. proceedings commenced, right to appeal get conferred. Thus, it can be said the Right to appeal is appeal substantive right vested in parties from the date suit instituted.

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Bibliography Books:1) C.K Takwani, civil procedure, eastern book company, 8th edition, 2018 2) MULLA, The code of civil procedure, lexisnexis, 2015

Bare acts :1) The code of civil procedure, 1908 2) Limitation act, 1963 Sites :1) www.indiankanoon.com 2) www.lexinexis.com 3) www.articlesonlaw.com

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