Appeal, Review, Revision and References under the Code of

Civil Procedure, 1908​  

Presented by Advocate Girish S Godbole
Assisted by Advocate Ketki Gadkari 
Dated 22nd April 2020​  

APPEALS

General Principles 

Meaning of the term ‘Appeal’

The term ‘Appeal’ has not been defined in the Code. Used in legal parlance, it means an

application for protest and request for annulment of a Judgment / Decree / Order to a

superior judicial / quasi-judicial forum to challenge the Judgment, Decree or Order of any

subordinate Court / Authority. Appeal is, therefore, a challenge to any Judgment, Decree

or Order of a subordinate Court.

Types of Appeals under CPC​. –

(1) First Appeal (Appeal from Original Decree) which lies before the District Court and

High Court – Section 96;

(2) Second Appeal (Appeal from Appellate Decree) which lies only before High Court –

Section 100;

(3) Appeal from Order (often titled as Civil Miscellaneous Appeal or Miscellaneous Civil

Appeal in the District Courts / Court of Small Causes) – Section 104 and Order 43 of the

Code;
(4) Letters Patent Appeal – Appeal from Judgment of Single Judge of High Court to a

Bench of larger strength of the same Court; (Clause 15 of the Letters Patent of Bombay

High Court)

(5) Appeal from Orders deemed to be decrees.

(6) Appeals to the Supreme Court.

(7) Appeals to Civil Courts from orders or decrees passed by judicial or quasi- judicial

authorities under other Central and State enactments.

Principles about source of Appellate Jurisdiction and whether Appeal is a vested

right and whether it can be taken away

A] Appeal is a creation of Statute and there is no person has an inherent right of

Appeal. A Right to file a Suit to remedy a civil wrong is an inherent right of every citizen

/ person. Jurisdiction of a Civil Court is plenary in nature empowering it to decide all

claims unless such suit is expressly barred by legislation or there is an implied bar which

can be inferred from any legislative provision. (​See Nahar Industrial Enterprises v/s.

Hongkong and Shanghai Banking Corporation (2009) 8 SCC 646

and Dhulabhai v/.s State of M.P. AIR 1969 SC 78 for an elaborate discussion on this

point.​ ) Section 9 of CPC merely recognizes such a right. However, for maintainability of

an Appeal, there must be authority of law and the concerned enactment must provide for

filing of an Appeal. See ​Anant Mills Co Ltd., Vs State of Gujarat (1975) 2 SCC 175.​

B] Appeal is thus a right conferred by statute to file proceedings in a superior Court,

seek its intervention to redress the error of the Court below. This statutory right can,

therefore, be taken away by the legislature. This right is a vested right and gets

crystallized when the original civil suit is filed and the rights to prosecute First Appeal
and Second Appeal are preserved and cannot be taken away or curtailed except by a

statutory provision either express or by necessary implication. (​Refer

to Garikapati Veeraya v/s. Subbiah Choudhury AIR 1957 SC 540 which is a Constitution

Bench Judgment​ ​wherein it is held that it is a vested statutory right and can be taken

away only by an express legislative amendment. Also see Deelip Dahanukar v/s. Kotak

Mahindra (2007) 6 SCC 528.​)

Thus, when a Suit is filed, right to file First and Second Appeal becomes vested

in favour of the parties to the Suit. For instance, a Suit is filed in the year 2000 and

decreed in 2010 and a First Appeal is filed in the District Court which is pending. An

amending Act provides that no Second Appeal will lie if the value of claim for pecuniary

jurisdiction is less than a particular threshold. The right of the parties in the Appeal

pending in the District Court to file a Second Appeal will not get affected by such

amendment unless the legislature makes an express provision to that effect. Based on this

principle itself, despite abolition of Letters Patent Appeals, some Letters Patent Appeals

were saved.

Locus Standi​ to file Appeal.

Only a person adversely affected and aggrieved and dissatisfied by the Judgment and

Decree is maintainable (​Baldev Singh v/s. Surinder Mohan Sharma, (2003) 1 SCC

34)​ . The exception is an Appeal against a Judgment in ​rem.​ But a person who is not a

party to the original Suit or proceeding has a right to file Appeal, if it can show that it is

adversely affected by the decree. There is no statutory provision in this regard but is a

part of Judge-made law. Such a person must file an Application for Leave to File Appeal

before the Appellate Court along with Memo of Appeal and demonstrate the adverse
effect of the decree and it will then be in the discretion of the Appellate Court, to be

judiciously exercised, whether to grant such leave or not. Once a leave is granted, the

Appeal gets registered, becomes maintainable and can be entertained for its consideration

on merits. (​Jatankumar Gulcha v/s. Gulcha properties, 1970 (3) SCC 573​ is a judgment

on this point which is consistently followed.)

Maintainability of Appeal against a mere finding.

An Appeal cannot lie against a mere finding if there is no decree passed against a person

suffering such adverse finding. (​Smt Gangabai v/s. Vijaykumar (1974) 2 SCC 393.​ )

Instances. (1) in a Suit for recovery of money, the Trial Court holds that Defendant is

liable to pay the money but dismisses the Suit as barred by limitation. The ultimate

decree being of dismissal of Suit, the Defendant cannot file an Appeal though the finding

about Defendant’s liability to pay the amount is recorded against the Defendant.

However, if the Plaintiff files an Appeal, by invoking the provisions of Order 41 Rule 22,

a Defendant can assail such adverse finding and even file cross-objections. (see Banarasi

and Others Vs. Ram Phal (2003) 9 SCC 606 {paragraphs 8 to 12} which discusses the

law pre and post 1976 Amendment in a very simple and lucid language of CJI Justice

Lahoti. This Judgment also follows Ratankumar Gulcha Vs. Gulcha Properties and

Gangabai Vs. Vijaykumar referred above. I would a​ lso like to place the recent Judgment

of ​Manish Pitale J in the case of ​Kamalabai Vs. Muktabai {2018} 6 MhLJ 533: 2018

SCC Online Bombay 528.)

Note​:- I still have a personal doubt. According to O. 41 R. 22 a Defendant is entitled to

file Cross Objection even against an adverse finding in the Judgment even if all the issues

are also decided in Defendant’s favour and the suit is dismissed. This is the case No. (iii)

as noted by Lahoti J in Banarasi Das supra. In this case, if the Appellant withdraws the

Appeal; can the Cross Objection still survive for the limited purpose of consideration by
the Appellate Court. Banarasi Das so holds. But once the Appeal is withdrawn; the

Cross Objection remains only one against a finding, and not against a Decree. An

appeal against a mere finding in a Judgment is consistently not held to be tenable.

However, a queer situation will arise if Appeal is filed; Cross Objection against a mere

finding is taken, Appeal is withdrawn and despite this the Cross Objection will continue;

which couldn’t have been the intention of the Legislature.

It also raises another problem. A finding recorded against a Defendant, where the suit is

ultimately dismissed; does not operate as Res Judicata against the Defendant, since he

had no right to file an Appeal. However, if the Plaintiff files an Appeal and Defendant

raises a Cross Objection to challenge such adverse finding; despite the withdrawal of the

Appeal; the Cross Objection will survive, will have to be decided on merits and then will

operate as Res Judicata. Thus, only on account of a “Fortuitous Circumstance” of the

Plaintiff filing or not filing an Appeal, a finding against the Defendant will operate as a

Res Judicata. I feel that to that extent Banarasi Das needs to be explained. Any thoughts

on this from the Legal Fraternity as also Law Interns are welcome. ​

Similar is a case in a Rent Act Suit for bona fide requirement the Court holds that

Plaintiff has proved the bona fide requirement but dismisses the Suit on the ground of

hardship, Defendant cannot file an Appeal against the finding of bona fide requirement

but if Plaintiff files Appeal challenging the decree of dismissal of the suit; the Defendant

can file Cross Objection and assail the finding of Hardship.

However, such a finding which cannot be challenged does not operate as res-judicata

against the party since there is no remedy to challenge it and the principle of finality

which is pre-requisite for res-judicata will be absent.

Impermissibility of Imposing Pre-conditions for Entertaining Appeal

A] Appeal being a creation of Statue, unless the Legislature imposes any pre

condition for entertaining an Appeal, the District or High Court, being Appellate Courts

cannot impose any precondition for entertaining an Appeal, like pre-deposit of Decretal

Amount or Surrendering Possession in an Appeal challenging a Decree for possession

etc. Imposition of such pre-condition will amount to Legislation, which is clearly

impermissible. Even in an Appeal against a money decree, pre-condition of deposit

cannot be imposed by the High Court as a condition precedent for entertaining the

Appeal, despite the provisions of Order 41 Rule 5 (3). Such condition can be put only

while hearing an application for stay of execution of a money decree by the Appellant. In

fact such an amendment which was proposed in the CPC 1976 Amendment Bill was

rejected by the Parliament. ​See Prabhakar Vs Vinayak AIR 1983 Bombay 301 : 1983

SCC Online Bom 10 and Bhogawati Sahakari Sakhar Karkhana Vs M/s jChaugule And

Sons 2003 (2) MHLJ 562: 2002 SCC Online Bombay​.) A

​ lso see ​Nahar Industrial

Enterprises v/s. Hongkong and Shanghai Banking Corporation (2009) 8 SCC 646

B] Whenever the Legislature has thought it fit to impose such a condition it has done

it. An appeal by Employer u/s 30 of the Workmen’s Compensation Act, 1947 awarding

compensation cannot be entertained by High Court unless the Appellant deposits the full

amount of Award with the Commissioner For Workmen’s Compensation. Similar

provision in respect of an Appeal u/s 173 of the Motor Vehicles Act, 1988 is also made.

Same provision is to be found in S. 26 of the Maharashtra Value Added Tax Act, when

an appeal is to be filed before the Tribunal. Similar provisions for pre-deposit are made

in Recovery of Debts Due to Banka Hence, something which can be done by the

Legislature alone cans and Financial Institutions Act, 1993 and SARFAESI Act, 2002.

Normally such provisions are made in Taxing or Banking Statures. See ​Tecnimont Vs.

State of Punjab 2019 SCC Online 1228 Supreme Court, which follows Anant Mills case.
Hence, the Appellate Court exercising powers u/s 96 or 100 of the Code cannot impose

such a condition unless the Statute so provides, and if it does so, it will amount to taking

away a vested statutory right conferred by the Legislature.

Principle of impermissibility of adopting Dual remedies:​-

The Appellate Court will not allow a party to adopt dual remedies simultaneously. S. 114

(Review) provides that any person aggrieved by a Judgment or Decree from which an

appeal is allowed, ​but no appeal has been preferred​, can file a Review. Hence, if an

Appeal is filed, Review is not maintainable.

However, if the decree or order is passed ex parte, Defendant has two remedies, one of

filing an Appeal and the other of filing an Application for setting aside the same before

the same Court. (​Bhanukumar Jain v/s. Archanakumar (2005) 1 SCC 787.​ ) This is not a

dual remedy. In an application for setting aside an Ex-parte Decree, the only

considerations are whether the Defendant / Respondent was duly served with the

summons / notice or whether, despite such service he had a sufficient cause for his

absence. In an Appeal however, merits of the Decree passed Ex Parte are also open for

consideration. However, if the Appeal is filed and dismissed; except a dismissal in

default, the Defendant cannot thereafter file an Application for setting aside the decree or

order nor can the Court decide any such pending application, since the Decree / Order of

the Trial / First Appellate Court would merge in that of First / Second Appellate Court.

Effect of Judgments in Appeal – Principle Of Merger

A] Once an Appeal is decided on merits, all the Judgments of subordinate Courts

merge in the Appellate Judgment which is the only Judgment which remains in the

field. The Judgment of Trial Court is eclipsed by that of the Appellate Court and it is the

Appellate Court Judgment which remains in the field. The principles regarding merger

are enumerated in the case of ​Kunahyammed v/s. State of Kerala,

(2000) 6 SCC 359 ​which contains an elaborate discussion on the principles of merger.

Though this Judgment is about the effect of summary dismissal of a SLP by Supreme

Court, the discussion in Paragraphs 36 onwards and the conclusions in paragraph 44 give

one a good insight about principles of Merger. (​Also see Maru Ram v/s. Union of India,

(1981) 1 SCC 107​.)

B] However, there are some exceptions to this Rule.​ I​ f the Appeal is dismissed in

default or withdrawn or abates as a whole, merger does not take place since there is no

Judgment​ delivered by the Appellate Court.

C] In case there is a merger, the Appellate Court Judgment being the last Judgment

which remains in the field; a fresh period of limitation for execution of the Decree begins.

First Appeal – Appeal from Original Decree

A. Section 96 begins with the words ​‘save where otherwise expressly provided in the

body of this Code or by any other law for the time being in force’​. Thus, a First Appeal

can be filed against every decree passed by any Civil Court exercising original

jurisdiction to the Appellate Court authorized to hear Appeals from the decisions of the

original Court. Thus, when a special statute provide that an Appeal will be barred, the

Appellate Court doesn’t have jurisdiction to entertain an Appeal. The best example of this
is Section 6 of the Specific Relief Act, 1963. The Suit under Section 6 is a Civil Suit /

proceeding, decided by a Civil Court and results in a decree. However, a First Appeal

against such Decree is expressly barred and the only remedy available to an aggrieved

party is to file a Civil Revision Application.

The term decree defined in Section 2(2) of the Code includes an ex parte decree. Hence, a

First Appeal is maintainable against

(1) a preliminary decree in suits for partition, partnership, mortgage, accounts etc.;
(2) rejection of plaint under Order 7 Rule 11;
(3) orders passed in proceedings under Section 144 for restitution; and
(4) a final decree.
In following cases an Appeal cannot lie –

(1) Dismissal of a suit in default.

(2) Against any order against any adjudication from which an Appeal lies as an Appeal

from Order (under Section 104 or Order 43 or other provisions under the Code).

(3) Against a Decree passed by consent of the parties. ​See Note 1 below,

(4) Against a Judgment delivered in a suit of a nature cognisable by a Court of Small

Causes when the amount or value of the subject matter of the suit does not exceed Rs.

10,000/- ​except on a question of law​. ​See Note 2 below.

​ owever, when in a Suit it is contended by one party and disputed by other party
Note 1 H

that the Suit is wholly or partly settled by a compromise, under Order 23 Rule 3 Proviso

the Judge hearing such proceeding (either Suit or Appeal) is required to forthwith decide

that question and if he holds that the Suit or Appeal is in fact compromised, he can

dispose of the same in terms of such claimed compromise. Such a decree is however

appealable. ​See O 43 (1A) (2).

​Note 2:​ Some times, we as Advocates face questions about maintainability of an Appeal

on the ground that the valuation for claim and court fees in the Suit is less than the
threshold prescribed in Section 96(4). Very often in Suits for partition of immovable

properties and partition and possession of immovable properties consisting of lands, the

valuation for jurisdiction and court fees is determined as a multiple of the Land Revenue

which is very low and resultantly the valuation is only a fraction of the actual market

value of the property. Hence, a doubt arises whether Appeal will lie. However, such

Suits are not ​Suits of a nature cognisable by the Court of Small Causes and hence the

exception carved out by S. 96 (4) doesn’t apply. You may refer to Sections 17 and 19 of

the Presidency Small Causes Courts Act, 1882 and corresponding Sections15, 16 and 2​nd

Schedule of the Provincial Small Causes Courts Act, 1887.)

5. Challenge to the correctness of a preliminary decree in an Appeal challenging a final

decree is also barred under Section 97 if no appeal had been filed challenging the

preliminary decree.

​B. Difference of opinion. – Section 98 provides for contingency of difference of opinion

between the Appellate Judges where the majority view has to prevail and in the absence

of such majority, the decree appealed from gets confirmed. The proviso to the Section

empowers the two or more differing Judges (even in number) to state the point on which

they differ which will have to be decided by other Judges.

C. Irregularity not affecting merits.- Section 99 provides that Appellate Court will not

reverse or vary a decree or cause a remand on account of any misjoinder or non-joinder

of parties or causes of action or any error, defect or irregularity not affecting the merits of

the jurisdiction of the Court. The exception being a non-joinder of a necessary party.

Thus, a defense of territorial jurisdiction of the Trial Court, if not raised before the Trial

Court, cannot be raised before the Appellate Court (See Section 21). On same principles

a decree cannot be reversed on account of lack of pecuniary jurisdiction if such an

objection is not raised during the Trial. Section 11 of the Suits Valuation Act also

embodies the same principle. The basis of this is the principle of Waiver.

The exception to this Rule being lack of subject jurisdiction / inherent lack of jurisdiction,

which defect can be raised at any stage and even in collateral proceedings. (See Kiran

Singh v/s. Chaman Paswan, AIR 1954 SC 340; and Chiranjilal Shrilla Goenka v/s. Jasbit

Singh & Ors, (1993) 2 SCC 507).

D. Appeal – a valuable right. – First Appeal is a valuable right and the Appellate Court is

bound to discuss all issues of fact and law and is required to frame separate points for

consideration (order 41 Rule 31) and decide the same. Failure to so may render

vulnerable in a Second Appeal and can raise a substantial question of law, if it is shown

that there is a total non-consideration of a material issue or material piece of evidence.

First Appellate Court has a duty to re-appreciate the entire evidence, oral and

documentary, and record its independent findings on questions of fact, law and mixed

questions of law and fact involved in the case. It is entitled to reverse, uphold, modify or

partly modify any finding of fact or law given by the Trial Court.

U/s 107 Appellate Court can Consider additional evidence (Order 41 Rule 27) either on

application of party or itself considers it necessary for just adjudication of a dispute,

Appoint Court Commissioner, Receiver and pass all interlocutory orders like attachment

before Judgment, injunction etc. It can remand a case for rehearing or retrial, record

evidence in Appeal or frame an additional issue and either decide it itself or direct a

subordinate Court to take evidence and send the same with or without a finding. (See O

47 Rules 25 to 29).

It is a last fact-finding Court.

An Aggrieved party may assail all findings and incidental orders passed during pendency

of a Suit while assailing the final decree. Thus, orders allowing or refusing amendments,
appointing or refusing to appoint Court Commissioner etc, foreclosing evidence etc can

all be assailed and the Appellate Court is empowered to consider correctness or otherwise

of such orders. (See S. 105 and O 43 Rule 1A {1}).

In case of an affirming Appellate Judgment, it can record its general agreement but in

case of a reversing Judgment, it must give detailed reasoning in support of such decree of

reversal. (see para 15 of ​Santosh Hazari v/s. Purshottam Tiwari, (2001) 3 SCC 179)​ .

Without multiplying authorities about the scope of First Appeal and powers and duties of

Appellate Court etc., one can refer to ​Union of India v/s. KV Laxman AIR 2016 SC 3139.​

​E. Forum of First Appeal. –S. 106 of the Code deals with the forum of Appeal. The

forum (District Court or High Court) is principally decided based on pecuniary

jurisdiction. The Code does not provide for pecuniary jurisdiction of Appellate Court nor

is this provision made under the Maharashtra Court Fees Act, 1959 or the Suits Valuation

Act but is provided by the Maharashtra Civil Courts Act, 1869. Section 26 of that Act as

it stands today provides that High Court will be the forum of Appeal where the amount or

value of the subject matter exceeds Rs. 1 crore, otherwise the District Court has right to

hear an Appeal under Section 8 of that Act. S. 15 of the Bombay City Civil Court Act,

1948 provides that appeal shall lie to High Court. ​Please note that this section provides a

special period of limitation of only 30 days to file an appeal to High Court as against the

period of 90 days to file appeal from the original decrees passed by subordinate courts

under the Indian Limitation Act, 1963. ​

Second Appeal- Appeal from Appellate Decree

A] Section 100 provides for filing of Second Appeal before High Court only on a

substantial question of law against the decree of First Appellate Court irrespective of the
pecuniary jurisdiction unless such Second Appeal is barred. Section 34 of the

Maharashtra Rent Control Act, 1999 specifically bars a Second Appeal. Similar

provisions in other enactments can also be seen. Against a decree passed by City Civil

Court, Second Appeal is not provided since u/s 15 First Appeal lies to the High Court,

which is an implied bar. It can lie against an Appellate Decree passed ex parte. Section

100-A overrides Letters Patent and bars a Second Appeal before a Division Bench of the

High Court against the Judgment of a Single Judge itself rendered in Appeal. Section

102 bars a Second Appeal in a decree passed in a Suit for recovery of money not

exceeding Rs. 25,000/-.

B] The scope of Second Appeal is however restricted and the High Court has

jurisdiction to entertain it only on satisfaction that it involves a substantial question of

law, and the Appellant is expected to formulate substantial question in the Memo of

Appeal and the High Court is required to formulate either one of such questions or its

own question if it decides to entertain / Admit the Appeal. See S. 100. U/s 103,

Respondent is allowed to dispute the existence of such substantial question only at the

time of final hearing of the Appeal.

Note:- ​In my personal opinion, therefore, at the time of admission of a First Appeal or

Second Appeal, the Respondent has no right to oppose admission unless there is a

question of lack of jurisdiction of the Appellate Court or maintainability of the Appeal.

However, we routinely come across Respondents being heard opposing admission of the

Appeals on merits.

Proviso to S. 100 (5) empowers the High Court to frame additional substantial questions

at the final hearing of the Appeal and decide the same.

Under Section 103, the High Court is empowered to decide a question / issue of fact in

case it has not been determined by the lower Appellate Court or by the Trial and Lower

Appellate Court. Section 103(b) is the key as to what is a substantial question of law.

C] ‘Substantial question of law’ is a term which is subject matter of several

judgments. Broadly put it must not be a pure question of fact and it must have substance,

essential for the just decision of the case, real having sound worth, important and

considerable. To be substantial it must be debatable, not previously settled by the law of

the land or a binding precedent and must have a material bearing on the decision of the

case, if answered either way, and must be necessary to decide the same. It, therefore,

depends on the facts of each case. Broadly stated, the legal effect of the terms of the

document is a question of law, construction of a document involving application of any

principle of law is also a question of law and, hence, misconstruction of a document or

wrong application of a principle of law while construing a document gives rise to a

substantial question of law.

A question of law having a material bearing on the decision of the case, answer to which

affects the rights to the parties of a Suit is a substantial question of law if it involves a

debatable issue.

A substantial question of law arises where the Courts below have ignored material

evidence or acted on no evidence; have drawn wrong inferences from proved fact on

erroneous application of law, wrongly caste a burden of proof or where the evidence

taken as a whole is not reasonably capable of supporting a finding which has been

rendered by the First Appellate Court. The principles can be found in the case

of ​Herovinoth v/s.Sheshammal (2006) 5 SCC 545​ Paragraphs 21 to 23. ​Also see Santosh

Hazari v/s. Purshottam Tiwar (2001) 3 SCC 179 Paragraphs 12 to 14; Kondiba Dagdu
Kadam v/s. Savitribai (1999) 3 SCC 722 paragraphs 3 o 7​). Hence, a concurrent finding,

however erroneous can not be interfered unless it is perverse, or recorded without

supporting evidence, is against a binding precedent, by ignoring material pieces of

evidence or misconstruing a document affecting the final decision of the case.

The High Court hearing a Second Appeal has all the powers of the First Appellate Court

including power to admit additional evidence, etc.

If a First Appeal is dismissed on the ground of limitation, a Second Appeal is

maintainable. (​See Sham Sunder Sharma v/s. Pannalal (2005) 1 SCC 436.​ )

Appeal against Orders

A] Section 104 provides for Appeals against Orders, namely, order under Section

35-A (compensatory costs), refusal to grant leave to institute Suit under 91 and 92 (now

deleted), Order under Section 95 awarding compensation for wrongful attachment

etc. and any order imposing fine for arrest or detention in civil prison except in execution

of a decree and any other order provided in Rules. Order 43 provides the various clauses

where Appeal is maintainable.

B] Perusal of Section 104 makes two things clear. First, that an Appeal will lie only

from those orders which have been enlisted in section 104 read with order XLIII and not

against any other orders. Secondly, by reason of the words “save as otherwise expressly

provided in the body of the Code or by any law for the time being in force”, those orders

shall also be appealable which are made appealable either in the body of the Code or

under any other law for the time being in force. Therefore, a right to Appeal conferred by

the Code or any other law for the time being in force is expressly preserved. Under

Section 104 Sub-Section (2) no further Appeal will lie from any Order passed in Appeal
under this section. Thus, a Letters Patent Appeal is not maintainable against an order

passed in an Appeal From Order. Similarly, an Appeal From Order doesn’t lie to the

High Court from any order passed in any Miscellaneous Civil Appeal or Civil

Miscellaneous Appeal by the District Court. E. g. An order of injunction or appointment

of Court Receiver passed in a suit or a substantive First Appeal is appellable as an Appeal

from Order. Against an Order of Injunction or Court Receiver passed in a substantive

First Appeal by the District Court an Appeal From Order is maintainable. However,

against an Order of Injunction or Court Receiver passed in Appeal from Order by the

District Court an Appeal From Order is not maintainable.

C] Order 43 Rule 1 provides that Appeals will lie from orders passed specifically

against:

a) An Order under Rule 10 of Order VII for returning a Plaint to be presented to the

Appropriate Court.

b) An Order under Rule 9 of Order IX rejecting an application (for a situation open to

appeal) for an order to set aside the dismissal of a Suit.

c) An Order under Rule 13 of Order IX rejecting an application (for a situation open

to appeal) for an order to set aside a decree passed ​ex parte​.

d) An Order under Rule 21 of Order XI, where upon non-compliance of an order for

discovery in case of a Plaintiff, an Application is made by the Defendant for

dismissal of a Suit and in case of a Defendant an Application is made for striking

out the defence as if no defence was ever put up.

e) An Order under Rule 34 of Order XXI for rejecting a draft for execution of a

decree of negotiable instruments, upon the objection by the Judgement -debtor.

f) An Order under Rule 72 of Order XXI setting aside the purchase of a property by

the Decree holder in execution of the decree and under rule 92 of Order XXI

where is Sale is made absolute or set aside.

g) An Order under sub-rule (1) of Rule 106 of Order XXI, for setting aside ex parte

orders made under the said section.

h) An Order under Rule 9 of Order XXII declining to set aside abetment or dismissal

of a Suit.

i) An Order under Rule 10 of Order XXII giving or declining to give leave.

j) An Order under Rule 2 of Order XXV dismissing an application (for a situation

open to offer) for a request to put aside the rejection of suit.

k) An Order under Rule 5 or Rule 7 of Order XXXIII dismissing an application to

sue as an indigent person.

l) Orders in interpleaded suits under Rule 3, Rule 4 or Rule 6 of Order XXXV.

m) An Order under Rule 2 (for order of depositing security), rule 3 (for discharge of

surety) or rule 9 (removal of attachment when security furnished or suit dismissed)

of Order XXXVIII.

n) An Order under Rule 1 (order granting temporary injunction), Rule 2 (Injunction

to restrain continuance of breach), rule 2A (consequence of disobedience), Rule 4

(discharging, varying or setting aside order of injunction), or Rule 10 (order of

deposit of money) and Rule 11 (striking off defence or dismissal of the suit or any

other adverse order for non-compliance of any order passed in the sui) of Order

XXXIX;

o) An Order under Rule 1 or 4 of Order XL appointing a Court receiver or

enforcement of receiver’s duties.

 p) An order for refusal under Rule 19 of Order XL1 to re- admit, or under rule 21 of

Order XLI to re-hear, appeal;

q) An Order under rule 23 or Rule 23-A of Order XLI remanding a case, where an

appeal would lie from the decree of an Appellate Court;

r) An order under Rule 4 of Order XLVII granting an Application for Review.

D] Rule 2 of Order XLIII provides that the procedure ​under Order XLI shall apply in

the matter of disposal of Appeals from Order also. But the words ​“so far as may be” used

in Rule 2 of order XLIII clearly shows that the jurisdiction of the Appellate Court hearing

appeals against appealable order is restricted only to the Orders appealed against. Hence,

there should be clear distinction in the approach of the Appellate Court dealing with

appeals against the decree vis-a-vis dealing with the appeals against the appealable

Orders under Order XLIII Rule 1 of the Code. Under O 43 (1A) (2), an appeal will lie

against an order recording a compromise, after conducting an enquiry about the factum of

existence of such a compromise.

Appeals to the Supreme Court

The highest and final Court of Appeal under the Indian Judicial system is the Supreme

Court. A person aggrieved by the decision of High Court may Appeal to the Supreme

Court in its appellate jurisdiction under the Code. No direct Appeal lies to the Supreme

Court from any other courts except the High Court under the Code. Appeals to the

Supreme Court are provided under Article 132 to 133- A of the Constitution of India

along with Section 109 and Section 112 and Order XXXXV of the Code of Civil

Procedure, 1908.
Under Article 132 Appeals from High Courts shall lie to the Supreme Court from any

judgment, decree or final order of a High Court in the territory of India, whether in a

civil, criminal or other proceeding, if the High Court certifies under Article 134A that the

case involves a substantial question of law. It further provides that where such a

certificate is given, any party in the case may appeal to the Supreme Court on the ground

that any such question as aforesaid has been wrongly decided. For the purposes of this

article, the expression final order includes an order declaring an issue which, if decided in

favour of the appellant, would be sufficient for the final disposal of the case. The essence

of Article 133, Section 109 and 112 are similar and provide for conditions where an

Appeal would lie to the Supreme Court of India along with Order 45 Rule 3 which

provides for the procedural part. As per Article 133, which provides for Civil Appeals,

Appeals will lie to the Supreme Court in if the High Court concerned certifies (a) that the

case involves a substantial question of law of general importance; and (b) that, in the

opinion of the High Court, the said question needs to be decided by the Supreme Court.

The period of limitation is 60 days from the date of grant of the certificate by the High

Court.

The Supreme Court also has the discretionary power to decide a case and the Court

enjoys the residual power which is decided outside the purview of ordinary law given

under Article 136 of the Constitution from any judgment, decree, sentence or order

passed or made by any Court or Tribunal of India. The Special Leave Petitions are

governed under the rules mentioned in Order XVI of the Supreme Court Rules 1996

under either which the SLP is filed upon refusing the Certificate of fitness by the High

Court or when there is a need to interfere by the Supreme Court to give Justice i.e.

against orders itself.

 Appeal from Orders deemed to be decrees.

As contemplated under the Code, an adjudication that does not fulfil the requisites of S.2

(2), cannot be said to be a decree. However certain orders and

determinations are deemed to be decrees under the code, due to the fact that they assume

to conclude or end the lis between the parties finally. Examples of orders which are

deemed to be decrees are i) An order passed under O 21 R 58 of the Code passed after

determination of validity or otherwise of an attachment levied in execution. ii) An order

passed under O 21 R 101 of the Code passed after determination of any question under

Rules 98 or 100.

Letters Patent Appeal

Appeal from Judgment of Single Judge of High Court to a Bench of larger strength

of the same Court; (Clause 15 of the Letters Patent of Bombay High Court)

A] Another provision of Appeal applicable to High Court of Bombay is an Appeal

against an order “​which is a Judgment” i​ n any proceedings of civil nature from the

Original Jurisdiction of the High Court to the Appellate Bench under Clause 15 of the

Letters Patent Act of Bombay High Court. It is an inter court Appeal from Judgment of

Single Judge of High Court to a Bench of larger strength of the same Court.

On analysis of Clause 15, it can be seen that an Appeal shall lie to the High Court of

Judicature at Bombay –

a. from a judgment

b. of one Judge of the High Court

c. pursuant to Section 108 of the Government of India Act, 1915

 d. not being –

i. a judgment passed in the exercise of appellate jurisdiction in respect of a decree or

order made in the exercise of appellate jurisdiction by a Court subject to the

superintendence of the High Court,

ii. an order made in the exercise of revisional jurisdiction,

iii. a sentence or order passed or made in the exercise of the power of superintendence

under the provisions of Section 107 of the Government of India Act, 1915, or

iv. a sentence or order passed or made in the exercise of criminal jurisdiction.

B] There is a lot of controversy as to what would exactly amount to a “​Judgment​”

delivered by a Single Judge in a suit or Writ Petition or other proceedings against which

LPA is maintainable. The consistent view is that mere matters of moment or purely

procedural orders which do not affect the rights of the parties to the ​lis are not

appeallable. Shah Babulal Khimji Vs. Dayaben Kania (1981) 4 SCC 8 is a land mark

Judgment which is oft followed.

C] Even prior to abolition of Letters Patent Appeals, a Judgment delivered by a Ld.

Single Judge in a Writ Petition / Writ Application under Article 227 of the Constitution

of India was not maintainable. This controversy has been a subject matter of lot of

precedents and many Full Bench Judgments. Umaji Meshram Vs. Radhikabai (1986)

Supplement SCC 401 is the leading Judgment which is followed and discussed in

subsequent Judgments. After the Maharashtra High Court (Hearing of Writ Petitions By

Division Bench and Abolition of Letters Patent Appeals) Act, 1986 being Maharashtra

Act No. XVII of 1986; LPA against a Judgment delivered in exercise of jurisdiction

under Article 226 is barred, giving the Act an overriding effect over the Letters Patent.
Hence, now a Judgment delivered by a Single Judge in a Writ Petition, even if Article

226 power is invoked or exercised, can not be assailed before the Division Bench.

Appeals to Civil Courts from orders or decrees passed by judicial or quasi- judicial

authorities under other Central and State enactments.

A] Different Judicial and Quasi Judicial Authorities are set up under various State and

Central Legislations. While the original jurisdiction of dispute resolution or adjudication

is conferred on the designated statutory authorities certain statues provide for Appeals to

the Civil Courts or District Court or directly to the High Court under the concerned

legislation.

B] The first principle of law in such cases is that if the Special or Local Law provides

for filing of Appeals against only some orders; then appeals against other orders are

barred. So under the Arbitration and Conciliation Act, 1996 right of appeal is restricted

to the orders enumerated therein. Hence, an order passed by the Civil Court in execution

of an Award u/s 36 is not held to be appealable since S. 37 doesn’t provide for such

appeal. See ​Jet Airways (India) Ltd., Vs Subrato Roy Sahara and others (2011) 113

Bombay Law Reporter, 1725.

C] The second principle of law in such cases is that if the Special or Local Law

provides for filing of Appeals, and doesn’t impose any restrictions on the scope of

Appellate Jurisdiction, then the Appellate Court, either Civil Court or District Court or

High Court can not impose such restrictions by an interpretative process of judicial

legislation. For the principles see James Joseph Vs. State Of Kerala ​(2010) 9 SCC Page

​ . 72 (4) of the Maharashtra Public Trusts Act, 1950 (prior to its 2018 amendment)
642. S

provided for filing of an Appeal against a Decision / Judgment rendered by the District
Court in an Application u/s 72 (1). In a challenge to an order passed in a Change Report

Enquiry u/s 22 by the Assistant/Deputy Charity Commissioner, an Appeal lies before the

Charity/Joint Charity Commissioner and against his decision in appeal, an application u/s

72 (1) was maintainable before the District Court. So, in a way, the hearing before the

District Court was itself a third hearing by a Judicial Authority and Appeal to High Court

u/s 72 (4) was a fourth hearing. On the premise that in such cases, the Division Bench of

High Court had taken a view that such Appeal must be treated as a Second Appeal on the

touchstone of S. 100 of CPC and can be entertained only on a substantial question of law.

This Judgment has however been reversed by the Full Bench in the case of ​Prabhakar

Chaudhary Vs. Laxman Mali 2016 (3) Maharashtra Law Journal 202.​

D] There are numerous such Statutes, but I propose to broadly indicate Certain

examples of such Appeals:-

i] Appeals u/s 37 of the Arbitration and Conciliation Act, 1996 lie to the

Court as defined in S. 3 (e) i.e. the Principal Civil Court of Original Jurisdiction;

which is District Court in districts and High Court in Mumbai; which term is

defined in the Maharashtra Civil Courts Act. Hence appeals u/s 37 against orders

passed by Arbitrator/s u/s 17 lie to the District / High Court. Appeals u/s 37

against orders passed by District Court in an Arbitration Application u/s 9 or in an

Arbitration Petition u/s 34 also lie to High Court. Appels u/s 37 against orders

passed by Single Judge of High Court in an Arbitration Petition u/s 34 or u/s 9 lie

before Division Bench.

ii) Appeals under Section 72 (4), 47 (5), 41D (5) and 41E (6) of the Bombay

Public Trusts Act, 1950.

 iii) Appeals under section 58 of the Real Estate (Regulation and Development)

Act, 2016 to the High Court on the grounds as specified in Section 100 of the

CPC.

iv) Appeals u/s 260(A) of the Income Tax Act, 1961 to High Court.

v) Appeals u/s 173 of the Motor Vehicles Act, 1988 to High Court.

vi) Appeals u/s 30 of the Workmen’s Compensation Act, 1947 to High Court.

vii) Appeals u/s 37 of the Arbitration and Conciliation Act, 1996 to District

Court and High Court.

viii) Appeals u/s 406 of the Maharashtra Provincial Municipal Corporations Act,

1949 to the Court of Civil Judge, Senior Division.

ix) Appeals u/s 81F of the Maharashtra Provincial Municipal Corporations Act,

1949 to the District Judge.

x) Appeals u/s 105F of the Brihanmumbai Municipal Corporation Act, 1888 to

the City Civil Court.

xi) Appeals u/s 15 of the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971 to the District Court in Districts other than Mumbai and

City |Civil Court in Mumbai.

Appeals under Section 13 of the Commercial Courts Act, 2016.

The Commercial Courts Act came into force in the year 2016. Chapter IV deals with

Appeals. Section 13 (1) any person aggrieved by the decision of the Commercial Court or

Commercial Division of a High Court may appeal to the Commercial Appellate Division

of that High Court. However such Appeals as mentioned in Section 13 (1) of the

Commercial Courts Act are restricted (under the Proviso) only to such orders passed by a
Commercial Division or a Commercial Court that are specifically enumerated under

Order XLIII of the Code of Civil Procedure, 1908 as amended by this Act and section 37

of the Arbitration and Conciliation Act, 1996. By amending S. 13, it is now provided that

an Appeal will lie against a Decree or Order and not against a Decision, which gave rise

to an ambiguity.

II. CIVIL REFERENCES

Section 113 empowers any Civil Court to state a case and submit a reference to High

Court for its decision if in any case being tried by it a question regarding the

constitutional validity of any Act, Ordinance, Rule or Regulations or any of its provisions

is involved and determination of such question will affect the decision of the case; if such

question is not determined by any binding precedent. Thus, while subordinate Civil

Courts cannot declare any statutory provision unconstitutional; it can certainly state a

case regarding such invalidity or unconstitutionality and make a reference to High Court,

which will decide the same by following the procedure prescribed by Order XXXXVI.

The SLP in which S. 69A of the Indian Partnership Act, 1932, as amended in

Maharashtra was held to be unconstitutional and struck down; arose out of a reference by

Hon’ble Mrs. Justice Rekha Sondur Baldota (Retired) while acting as a Judge of the City

Civil Court.

III. REVIEW

A] The provision of Review is envisaged in Section 114 together with Order XLVII

of the Code of Civil Procedure, 1908. ​Order XLVII lays down grounds for Review and

other procedural rules governing the same. A review in simple words is a request made to
the same Court unlike an Appeal or a Revision where the request is made to the superior

Court or the same Quasi Judicial Authority to reconsider its decision on very restricted

grounds as mentioned in Section 114. Order XLVII Rule 1 of the code enumerates the

following grounds for review-

- Discovery of new and important matter or evidence

- Mistake or Error apparent on the face of the record

- Any other sufficient reason.

B] Scope:- Therefore, the scope of review is very restricted and limited. While

the question whether a case for review is made out for ​‘any other sufficient reason’

depends from case to case and the view of Judge, it has been time and again held that the

said term is to be interpreted strictly and has to be analogous to or ​ejusdem generis t​ he

other grounds i.e. discovery of new and important matter or evidence and mistake

apparent on the face of the record. It is well settled that Review proceedings have to be

strictly confined within the ambit of Order XLVII Rule 1. The power of review to the

Supreme Court has been envisaged in Article 137 of the Constitution.

The principles for maintaining a Review are carved out in the case of ​Kamlesh Verma Vs.

Mayawati (2013) 8 SCC 320 ​and it is held that h​ earing of the review cannot be equated to

re hearing the matter.

In the case of ​BCCI vs Netaji Cricket Club AIR 2005 SC 592 it was held that a Review

can be filed for Rectification of a mistake, however ‘Sufficient cause’ to defer from case

to case. Having said so the sufficient cause cannot fall far away from discovery of new

material or error apparent of the face of the record.

C] Locus:- With respect to who can file a Review, section 114 states that any

aggrieved person can file a Review, the scope of the term ‘aggrieved person’ is similar to

that of an aggrieved third party in a Appeal. In the recent case of ​Union of India vs

Nareshkumar Badrikumar Jagad 2​ 018 SCC Online SC 2573 it was held that a Review

can be filed by a third party considering himself to be aggrieved as per Section 114.

IV. CIVIL REVISION APPLICATIONS

A] The provision for Revision is envisaged in Section 115 of the Code and like an

Appeal it will lie to a superior court. It is also necessary to bear in mind Section 7 and 8

of the Code which provides for Applicability of Section 115 with respect to proceedings

arising out of Small Causes Court. In case of proceedings arising out of Presidency

Small Causes Court i.e. in Mumbai the remedy under Section 115 is available, however

in proceedings under the Provincial Small Causes Court Acts, 1887 the remedy under

section 115 is specifically excluded.

B] The power of Revision is a power of superintendence, where the Court can call for

the records and proceedings for examining the legality and validity thereof or to find out

the validity of any order, but it has no power to reappreciate the Evidence. The

fundamental difference in a Revision and an Appeal is of ‘scope’. While the scope of an

Appeal is wide the scope of a Revision is narrow. An Appellate Court can reassess the

entire evidence, record its own findings or reserve the earlier findings.

C] Under section 115 of the Code, as applicable in Maharashtra, a Revision can be

filed before the High Court, and it can be entertained if it appears that the Subordinate

Court
(a) has exercised a jurisdiction not vested in it by law, or

(b) has failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.

The distinction between the scope of Revision and Appeal has been explained in

Lachhman Das Vs. Santokh Singh (1995) 4 SCC 201

D] However, it was observed the due to the given scope of the section courts were

flooded with Revision Applications for various interlocutory orders such as refusing

adjournments, appointment or refusal to appoint a Court Commissioner and so on.

Therefore need was felt to introduce the ​Proviso by amendment in 2002 to section 115 by

which is was envisaged that that High Court Shall not vary or reverse any order made, or

any order deciding an issue, in the course of a suit or other proceeding, except where the

order, if it had been made in favour of the party applying for revision would have finally

disposed of the suit or other proceeding. Therefore, orders to be brought under the

purview of Revision are orders which will bring finality to the ​lis between the parties in

so far as the subordinate court is concerned. Therefore, the scope of the earlier Section

115 was curtailed by the 2002 amendment. This principle is explained in the case of

Prem Bakshi Vs. Dharam Deo (2002) 2 SCC 2.​

E] As mentioned in the case of ​Shiv Shakti CHS vs Swaraj Developers (2003) 6 SCC

659 the test to see if the order is interim in nature or final the Question to be asked is

whether the order gives finality to the Suit or proceedings between parties? If it is

affirmative then revision is maintainable if not then it is an interlocutory order and

revision is not maintainable. The reason for such a narrow interpretation is also due to

the presence of section 105 in the Code.