APPEALS - Legal Bites - Law and Beyond PDF

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APPEALS
APRIL 17, 2017
APPEALS
First Appeals
The term appeal has not been defined anywhere in the CPC.
Appeal essentially means removal of a cause from an inferior court to a superior court to
test the soundness of the decision.
There are 3 essential ingredients of an appeal:
(a) There must be a decision by a judicial or administrative authority.
(b) There must be an aggrieved person and it is not necessary that he must be a party to the
original proceeding.
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(c) There must be a reviewing body, ready and willing to entertain such appeal.
The right to appeal is not an inherent right and must be created in express terms by
statute. Thus it is(HTTPS://WWW.LEGALBITES.IN/) APPEALS is an inherent right.
different from a right to file a suit which
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The statute creating such right to appeal
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may also impose conditions on the same.
APPEALS – Legal Bites – Law And Beyond
It is a substantive and not a procedural right.
However, this right accrues from the day the suit is first instituted inspite of the fact that
there is no real appeal at a later stage. It is thus governed by the law as it existed on the date
of filing the suit.
This right cannot be taken away, except for subsequently by statute, either expressly or by
implication.
An appeal is a continuation of a suit which means that the decision given by the appellate
court will be deemed to be the decision of the court of first instance.
Such appellate court has the same powers and duties as the court of first instance.
It may, subject to statutory limitations even examine all the evidence in the case.
The difference here between the suit and the appeal is that in the appeal, the court reviews
and corrects the proceedings in a cause but does not create a cause.
The order passed by the appellate authority shall be deemed to be final and operative.
The appellate authority may either reverse the decision of the lower court or it may modify
it or it may dismiss the appeal, thereby upholding the decision of the lower court.
The High Courts also possess revisional jurisdiction alongwith their appellate jurisdiction.
The distinction between the two is that in case of an appeal, the court may rehear the case
on the basis of both law and fact, unless either of them is barred by statute. However, in case
of a revision, the court can only go into the matters of law and decide as to whether the lower
court has followed the procedure established by law.
In case of revision, the higher court cannot re-examine the evidence put before the lower
court, unless the same is provided by statute.
A first appeal is one passed against a decree of the original court while a second appeal is
one passed against the decree of the first appellate court.
In a first appeal, questions of law, fact or both may be brought up while in case of a second
appeal only a substantial question of law may be brought up.
A first appeal may be filed in a court which may or may not be a High court while a second
appeal must necessarily be filed in the High court.
In case of a letters patent appeal may be filed against the decision of a single judge of a
High court to a division bench. But, there is no letters patent appeal from the decision of a
single judge in case of a second appeal.
The court may exercise its inherent powers to pass appropriate orders under S.151 and
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allow for conversion of an appeal to a revision and vice versa provided such revision 2/39
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appeal
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has been filed within the time prescribed for filing such proceedings. There is however
no limitation on the application for conversion.
S.96 of the CPC provides for the right to appeal from the decree passed by a court
exercising original jurisdiction.
It does not however state as to who may file an appeal.
However, before filing an appeal, the following 2 things must be kept in mind-
(a) The subject matter of such appeal must be a decree and thus there must be a conclusive
determination of the rights of parties as regards all or any matters of controversy in the suit.
(b) The party appealing must have been adversely affected by such decree.
The party appealing must thus necessarily be an aggrieved person or his legal
representatives.
Such person need not be a party to the suit where he gets the leave of the court in this
regard by showing that he has infact been aggrieved by the decree passed.
Thus, it must be shown that he is either bound by the decree or that it prejudicially affects
his interests.
This may be decided by examining as to whether or not such decree would operate as a
res judicata against him.
Thus, the following persons may file an appeal-
(a) Any party to the original proceeding or his legal representatives
(b) Any person claiming under such party or a transferee of interests of such party
(c) Any person who has been appointed by the court as the legal guardian of a minor
(d) Any other aggrieved person after taking the leave of the court
A party who agrees not to appeal or waives such right will not be allowed to appeal later
where such agreement is given in clear and unambiguous terms.
Also a party who takes the benefits under a decree may be estopped from filing an appeal
thereafter.
As per S. 96(2), there may be an appeal even against an ex parte decree.
Further, according to S. 96(3), thereAPPEALS
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can be no appeal in case of a consent decree or a
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decree which is passed with the consent of the parties.
Such consent may be in the form of a lawful agreement or a compromise or it may even
be presumed from the conduct of the parties.
However, where it is shown that the factum of the compromise is in dispute or that the
compromise or agreement has not been lawfully arrived at, this provision shall not apply.
S. 96(4) which was inserted by the 1976 amendment introduces a bar against appeal in
petty cases.
It states that where a suit is cognizable by the Court of Small Causes and the subject
matter of such suit does not exceed Rs.10,000, an appeal shall only lie on a substantial
question of law and not otherwise.
An appeal lies against a preliminary decree. This is simply because the preliminary decree
is merely a stage before complete execution which takes place in case of a final decree.
Hence, if a party fails to appeal from a preliminary decree, he shall be precluded from
appealing against the final decree. (S.97) Conversely , where an appeal against a preliminary
decree is allowed and such decree is set aside, the final decree automatically falls apart.
There is always an appeal against a decree and not against a judgment. However, where a
decree has not been drawn up, an appeal may be filed against a judgment. (Order 20 Rule 6-
A)
There can however be an appeal only against a decree or an appealable order (S.143 r/w
Order XLIII Rule1). There can be no appeal against the finding of a court which is not in the
nature of a decree or an appealable order.
However, under Order XLI Rule 22, any respondent may file cross objections against a
finding of the court with respect to an issue which ought to have been ruled in his favour, even
where he has not filed an appeal, provided he does so within a month from the date on which
notice fixing the date of hearing of the appeal has been served against him.
Further, even where the decree is wholly or in part in his favour, the respondent may file
cross objections against any finding of the court against him.
There can be no appeal against a dead person and an application substituting such
person by his legal representatives must be filed. The appeal will then be taken to have been
filed on such date as the application is made.
While filing an appeal, a memorandum of appeal must necessarily be submitted.
A memorandum of appeal is a document containing the grounds on which such appeal is

invited. It is generally filed for the purposes of the court and for the purposes of limitation.
Rules 1 and 2 of Order XLI lay down APPEALS
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the requirements which must be complied with for a
valid memorandum of appeal which are as follows-
(a) It must be in the form of a memorandum stating the grounds for filing the appeal.
(b) It must be signed by the appellant or his pleader.
(c) It must be presented to the court or any other officer appointed on its behalf.
(d) It must be accompanied by a certified copy of the decree.
(e) It must be accompanied by a certified copy of the judgment unless the same is dispensed with.
(f) Incase of a money decree, the appellant must deposit the decretal amount or the security, as
per the court’s discretion.
As per Rule 2, the appellant shall not except with the leave of the court take any grounds of
objection other than those mentioned in the memorandum. This is so that the opposite party
is given notice of the objections raised.
However, the court may suo moto decide to take such objections as it deems fit even
though they haven’t been specified in the memorandum, provided the opposite party is given
sufficient opportunity to contest such grounds.
As per Rule 3, where the memorandum is not in correct form, the court may even reject or
amend the same. Where the memorandum is rejected, reasons shall be recorded by the court
and where the memorandum is amended; the judge must initial or sign the same.
Rule 4 provides that where there are more than one plaintiffs/defendants, and the decree
proceeds on grounds which are common to all, the court may reverse or vary such decree in
favour of all such persons.
This rule thus gives the court the full power to do justice to all parties even where only one
of them files an appeal and not all of them are parties to such appeal.
As the right to appeal is not a procedural right, the defence that one’s rights were adversely
affected as the appeal was not filed in an appropriate forum shall not be allowed.
The appeal must be valued as well.
Rule 9 of Order XLI states that the Court against whose decree the appeal is being made
shall entertain the Memorandum of appeal, make an endorsement thereon as to the date of
presentation and record the same in the register of appeals.
However, there is no provision for transmission of such record from the trial court to the
appellate court.
Rule 5 deals with stay of proceedings
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or execution of a decree or order in case of an
appeal. Generally speaking, there shall be no stay of such decree or order on the mere ground
that there has been an appeal unless the appellate court passes an order to that effect and
gives sufficient cause for the same.
Such decree or order shall be stayed from the date of communication of the order of the
appellate court to the trial court. Further, in certain special circumstances even where the
order of the appellate court to stay the decree or order has not been received by the trial
court, if the appellant makes a sworn statement on affidavit that according to his personal
knowledge the appellate court has infact made such order, the proceedings or execution
shall be stayed.
Rule 5 also states that where an application for stay of execution of a decree has been
made before the expiration of the time for preferring an appeal, the Court which passes such
decree may after showing sufficient cause stay such execution.
However, for stay of execution of decree in both these abovementioned cases, the
following must be shown-
(a) That the party asking for stay would suffer substantial loss if such order is not passed.
(b) The application for stay has been made without any unreasonable delay.
(c) Security has been given by the given by the applicant for the due performance of such
order/decree as may be binding on him later.
The court may also stay the execution ex parte pending the hearing of the application for
stay.
However, there shall be no stay if the requisite security amount is not deposited with the
court.
Rule 10 states that the court on application made by the respondents may require the
appellant to deposit security for costs to be incurred for the appeal or the original suit or for
both, either before or after the respondent is called upon to appear and answer.
Incase of appellants who are not residents of India and have no substantial immovable
property in the country except probably for the one involved in such suit, security shall be
demanded in all cases.
Where such security is not furnished within the requisite time period, the court shall reject
the appeal. However, an application to restore such appeal even after rejection may be made
within a period of 30 days from such rejection.
The limitation act provides that the period of limitation for filing an appeal before the High
Court is 90 days(HTTPS://WWW.LEGALBITES.IN/)
from the date of the decree andAPPEALS
in case of any other court, within 30 days
from
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the date of the decree. APPEALS – Legal Bites – Law And Beyond
Rule 3-A of the CPC however states that delay in filing an appeal may be condoned if an
application stating reasons for the same and an affidavit are given to the court. If the court
then wishes to allow the appeal, it shall send out notices to the defendant.
Where an application to condone such delay has been made, the appellate court shall not
stay an execution of a decree unless it decides to hear the appeal as under Rule 11.
Further, under Rule 6, on an application made by the appellant, the appellate court may
either on its own or by directing the lower court order that security be taken for restitution of
any property taken in the execution of the decree or order payment of value of such property.
Also, under this rule where under the original decree, sale of an immovable property has
been ordered, the appellate court may order stay of such sale as security till the time the
appeal is disposed off.
The powers conferred under Rules 5 and 6 are exercisable not as regards an appeal from a
decree but an appeal from an order for execution of the decree. (Rule 8)
Rule 11 deals with summary dismissal of appeal by the appellate court after hearing the
appellant or his pleader on the fixed day.
The appeal may also be dismissed where the appellant does not appear before the court
on the day so fixed.
The dismissal shall be notified to the court which originally passed the decree.
Where the appellate court is not the High Court, it shall record its reasons for dismissing the
appeal, give a judgment on the same and draw up a decree.
Every appeal under this provision shall be heard within 60 days from the date of filing the
memorandum of appeal. (Rule 11-A)
Where the appeal is not dismissed as under Rule 11, a day shall be fixed for hearing of the
appeal under Rule 12.For the same, a notice shall be issued which shall be affixed to the
Appellate court house and shall also be sent to the court from whose decree or order an
appeal has been sought. (Rule 14)
The lower court shall then serve the notice on the respondent in the same way as a
summons is served. However, the notice may even be served by the appellate court itself.
The notice shall be accompanied by the memorandum of appeal.
It shall not be necessary to serve a notice of any incidental proceedings in the Appellate
court on the respondent unless he was impleaded the first time in the court or where he has
appeared before the court of first instance and filed his address for service or where he
appears in appeal. However, nothing shall bar such respondent from defending the appeal.
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Procedure of Hearing-
Where the appeal has not been dismissed summarily, a date for hearing the appellant
shall be fixed. Where the Appellate court does not dismiss the appeal at once, it shall hear the
respondent as well.
Where the appellant fails to appear on the day fixed, the appeal shall be dismissed. Where
the respondent does not appear, the Appellate court shall decide against him ex parte. (Rule
17)
However, where an appeal has been dismissed under rules 11 or 17, the appellant may apply
to the court to re-admit the appeal and where it is shown that there was sufficient cause for
non-appearance, the court shall allow the appeal to be admitted again.
Where the appeal has been decided ex parte, the respondent may apply to the court to re-
hear the appeal and the court will allow the same where the respondent proves that the
notice was not duly served on him or that he was prevented due to some other sufficient
cause from appearing.
Further, where the court is of the opinion that a party to the suit in the lower court, who is
not a party to the appeal, is interested in the appeal, it shall adjourn the hearing and make
such person a respondent in the appeal. (Rule 20)
Rule 22 deals with cross objections. (Very important)
Where the suit is partly decided in favour of the appellant and partly in favour of the
respondent, and where any of the parties files an appeal, the opposite party may take the
following recourse-
(a) He may file a cross appeal against the part of the decision which is against him.
(b) He may file a cross objection against the part of the decision which is against him.
(c) He may support the decree on the grounds decided in his favour as well as those against him.
The main difference between a cross appeal and a cross objection is that a cross appeal
involves two distinct and independent proceedings while cross objections are taken in the
same proceeding.
Cross objections can be filed by a respondent where he could have appealed against any
part of the decree or where he is aggrieved by a finding in the judgment even though the
decree is in his favour due to some other finding.
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Cross objections are generally filed APPEALS
against an appellant. However, they may also be filed
against co-respondents where the appeal cannot be proceeded with without deciding issues
between respondents inter-se.
However, there can be cross objections against a person who is not a party to the suit.
The cross objections may be heard and decided on merits even where the appeal has
been withdrawn or dismissed for default.
However, they will not be heard where the appeal has become time barred or has abated
or is not maintainable as they depend on the hearing of the appeal.
Cross objections must be in the form of a memorandum of appeal and must be served on
other party or his pleader.
A respondent may file cross objections even as an indigent person.
The appeal and the cross objections must be heard together as they are part of the same
proceeding. Thereafter, the judgment shall be delivered on both the appeal and the cross
objections.
Where no cross appeal or cross objection is filed, the appellate court shall not disturb the
decree of the lower court so far as it is in the favour of the appellant.
Court fee is payable on the cross objection in the same manner as it is payable on the
memorandum of appeal.
Cross objections must be filed within one month from the date on which notice is served on
the respondent as regards the date fixed for the hearing.
Powers of an Appellate Court –
To determine a case finally-
1 This is provided under S.107 and Rule 24.
2 The appellate court may determine the case finally where the evidence on record is
sufficient to enable it to do so.
3 It may or may not resettle issues in such case.
4 It is immaterial that the lower court has proceeded on an entirely different ground.
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To remand a case- APPEALS – Legal Bites – Law And Beyond
1 This has been dealt with under S.107 and Rules 23 and 23-A.
2 Remand means to send back.
3 It is where the trial court has disposed the suit on a preliminary point without recording
any findings and the decree has been reversed in appeal.
4 In such cases, the appellate court shall send back or remand the case to the trial court to
decide other issues and determine the suit.
5 A preliminary point is one on which a decision may be given to dispose off the entire suit
without looking into any other issue.
6 The appellate court may even direct the trial court to admit the suit in its original number
in the register of civil suits.
7 The evidence if any was recorded the original suit shall be used as evidence where the
case is remanded to the trial court.
8 Further, under Rule 23-A, the appellate court may remand a case to the trial court where
it feels retrial is necessary even where the trial court has not disposed the suit on a preliminary
point. This suit must have been reversed on appeal.
9 Thus, reversal is an important factor. An appellate court cannot remand a case where
the judgment of the court is not satisfactory or where the lower court has misconceived the
evidence or that the conclusion has been reached by the lower court on insufficient material.
10 An order of remand nullifies the decision of the lower court.
11 However, where a appellate court remands a case to the lower court by setting aside
only certain findings, the other findings of the lower court shall not be set aside.
12 The appellate court shall fix a date for appearance of the parties before the lower court.
13 An order of remand is appealable.
Framing issues and referring them for trial-
1 This has been dealt with under S.107 and RulesAPPEALS

(HTTPS://WWW.LEGALBITES.IN/) 25 and 26.
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2 Where the appellate court is of theAPPEALS
opinion that the lower court has omitted to frame or
try any issue or to determine any question of fact as it deems important for giving the right
decision, it may frame such issues and send the case back to the lower court to try such
issues.
3 It may even direct the lower court to take the additional evidence which is required.
4 Thereafter, the lower court shall try the issues and return the evidence to the appellate
court with its findings within such time as may be prescribed by the appellate court.
5 The evidence and findings of the lower court shall form part of the record of the case.
6 Any party may file objections against such findings within the stipulated time period.
7 Where objections are not filed, the appellate court shall proceed to determine the
appeal.
8 An order under Rule 25 is different from a remand because in case of a remand, the
entire case goes back to the lower court for a decision. However, in case of an order under
Rule 25, the case is retained in the file of the appellate court. Only the issues are sent back to
the lower court for trial and findings.
9 An order for remand is a final order and the appellate court cannot reconsider it except
on review. However, an order under Rule 25 is an interlocutory order which may be
reconsidered by the appellate court which passed it.
10 An order for remand is appealable while an order under Rule 25 is not appealable.
Taking of additional evidence-
This has been dealt with under S.107 and Rules 27 to 29.
Additional evidence, oral or documentary may be taken by the appellate court only in the
following circumstances-
(a) Where the lower court has refused to admit necessary evidence
(b) Where the party adducing the evidence establishes that such evidence was not within his
knowledge even after exercising due diligence at an earlier point of time
(c) Where such party establishes that even after exercising due diligence he could not produce
such evidence when the original decree was passed APPEALS
(d) Where the appellate court requires any document or witness to be examined in order to pass
a judgment
The appellate court will have to record reasons for the admission.
Additional evidence may be taken either by the appellate court or it may direct the lower
court which had passed the decree or any other subordinate court to take such evidence and
send it to the appellate court.
The appellate court shall specify the points to which the evidence is restricted and have
the same recorded.
Duties of the Appellate Court-
To decide the appeal finally
Not to interfere with the decree for technical errors (S.99) As per S.99-A, an order passed by
a court executing a decree should not be varied or reversed on account of any error, defect or
irregularity unless the same has prejudicially affected the decision in the case.
Appreciation of evidence
Recording of reasons
Judgment and Decree in Appeal-
Section 98 and Rules 30 to 34 deal with judgment in appeal.
S.98 provides that where an appeal is heard by a bench of more than one judge, the
appeal shall be decided in accordance with the opinion of the majority of the judges.
Where there is no majority concurring with the varying or reversing the decree, the original
decree shall be confirmed.
There may be a situation where the appeal is being decided by a bench comprising an
even number of judges (say 2 or 4 or 6) and there are more judges in the entire court than on
the bench.
In such a case where the bench differs on an point of law, such point of law may be
decided by any number of the remaining judges of the court and the decision shall be taken
by a majority of the judges who have heard the appeal, including the judges who heard it
originally.
This shall not affect APPEALS
the letters patent of any High Court.
Rule 30 provides that the appellate court
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shall pronounce its judgment either at once or on
later date notice of which has been given to the parties.
The judgment shall be pronounced after hearing both parties and their pleaders and
making reference to any proceedings of the appellate court as well as the lower court.
The judgment shall be read out in open court.
Where it is a written judgment, it is sufficient that only the points of determination, the
decision on such points and the final order are read out.
Rule 31 provides that apart from the particulars mentioned above (point 10), the judgment
must also state the relief granted to the appellant where the decree is varied or reversed.
The judgment shall be signed by the judge(s).
As per Rule 32, the judgment may confirm, vary or reverse the original decree.
It may even be in such form as may have been required by the parties.
The court of appeal also has the power to make or pass any other order as is necessary
even where only a part of the decree is appealed.
Such order may be exercised against all or any of the parties even where they had not filed
an appeal or cross objection.
Where there are decrees in cross suits or more than one decree passed in a suit, such
power shall be exercised as regards all such decrees.
Rule 34 states that where a judge dissents from the decision given, he shall record the
order or decision which must have been passed in his opinion and he shall also record
reasons for the same.
The decree of the appellate court shall contain the following particulars-
(a) The date of the judgment
(b) The number of the appeal
(c) The names and description of the parties
(d) The relief granted and any other adjudication made
(e) The amount of costs incurred
(f) From what property has such costs incurred
(g) From what property and in what proportions will the costs be payable
(h) Should be signed and dated by the judges
It shall not be necessary for the dissenting judge to sign the decree.
A certified copy of the judgment and decree shall be furnished to the parties on payment
of the requisite amount.
A certified copy of the judgment and decree shall also be sent to the lower court. This shall
form part of the original proceedings and shall be entered into the register of civil suits.
Second Appeals-
S.100 to 103, 107 and 108 and Order 42 deal with second appeals.
A second appeal can be filed only in case of a decree.
It may be filed only with the High Court against a decision in appeal of a court subordinate
to the High Court.
A decree passed ex parte in appeal may be appealed against as well.
A second appeal shall be allowed only where the case involves a substantial question of
law. The memorandum of appeal shall specifically mention such substantial question of law.
A substantial question of law is one that directly and substantially affects the rights of
parties. It is not a question of general importance but one rising between the two parties.
Where the High Court is satisfied that there is a substantial question of law involved, it shall
formulate such question and hear the appeal on such question.
The respondent shall be allowed that argue that such a question is not a substantial
question.
However, even where a particular question has not been formulated by the court, the court
may hear it for reasons to be recorded where it is of the opinion that such a question is a
substantial question.
The second appeal must be filed within 90 days from the date of the decree which is being
appealed against.
S.100-A provides an exception to the rule in S.100.
It states that no second appeal shall lie from a decree passed in appeal by a single judge
of a High Court. This shall be irrespective of the letters patent for any High Court.
Another exception is that no second appeal shall lie in case of a decree where the subject
matter of the original suit is for recovery of money less than Rs.25, 000.
Under S.103, where there is sufficient APPEALS
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evidence on record, the High Court may determine an
issue for the disposal of the appeal which has not been determined by any of the lower courts
or which has been determined wrongly by such lower courts.
Order 42 provides that the provisions relating to first appeals shall be applicable as far as
possible to second appeals.
Rule 2 provides that while making an order under Rule 11 of Order 41 (dismissal of an appeal
summarily), the court shall formulate only the substantial question of law and the appellant
shall not urge that any other question be decided except with the leave of the court.
The difference between second appeal and revision may be seen as follows-
(a) Second appeal involves a substantial question of law. Revision involves a jurisdictional error.
(b) A second appeal can be filed against a decree passed by an appellate court. Revision is
allowed only when there is no appeal.
(c) In case of a second appeal, the High Court can correct a legal error of the lower court. In case
of revision, the High Court cannot interfere with the decision of the lower court even when it is
legally wrong.
(d) In case of second appeal, the High Court can decide an issue of fact. In case of revision, an
issue of fact cannot be decided.
(e) In case of revision, the High Court may refuse to interfere if it is satisfied that substantial
justice has been done. In case of second appeal, the High Court has no discretionary power and it
cannot decline to grant relief on equitable grounds.
S.108 provides that the powers of the appellate court under S.107 shall be applicable in case
of second appeals and appeals from orders as well.
Appeals from orders-
S. 104 to 108 and Order 43 deal with appealable orders.
Appeals lie only from such orders as are mentioned under S.104 and Order 43.
There shall be second appeal in case of an order.
No appeal shall lie in case of any other order. However, where a decree is appealed from
and any order is passed which has any irregularity, defect or error and the same is important
for the decision of the case, it may be set out as an objection in the memorandum of appeal.
Where a person does not appeal from
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an order of remand, he cannot appeal from the
same afterwards.
The appeal in such cases would lie to a court to which an appeal from a decree would lie.
Where the order is passed in a court in exercise of its appellate jurisdiction and such court
is not the High Court, an appeal shall lie to the High Court. (Refer to point 4)
Where an order is made against a party, a judgment has been passed and a decree has
been drawn up, in an appeal against the decree, the appellant may contend that the order
was wrongly passed. (Rule 1-A of Order 43)
Where a decree is passed against a party recording or refusing to record a compromise,

the party may appeal against the same. (not important)
Appeals by indigent persons-
This is dealt with by Order 44.
Rule 1 provides that any person who cannot pay the sufficient fee to file the memorandum
of appeal may appeal as an indigent person.
An application to appeal as an indigent person must be accompanied by the

memorandum of appeal.
Rule 2 provides that where the application to appeal as an indigent person is rejected, the
court shall require the applicant to pay the requisite court fee within such time as may be
prescribed.
In such case the memorandum of appeal shall have the same force as it would have had
the fee would have been paid in the first instance.
Rule 3 provides that where a person suing as an indigent person or appealing as an

indigent person files an affidavit stating that he has continued to remain an indigent person
even after passing of the decree which is appealed against (first appeal in case of a suit and
second appeal in case of a first appeal), such affidavit shall be sufficient proof of his indigent
status.
However, where the affidavit is disputed by the government pleader or the respondent, the
court shall enquire into the same.
Where the applicant becomes an indigent person after the date of the decree appealed against
(first appeal in case of a suit and second appeal in case of a first appeal), the Appellate court or
any officer of such court shall enquire into the matter if necessary.
Appeals to the Supreme Court-
Such appeals have been dealt with under S.109 and 112 and Order 45.
An appeal shall lie from a judgment, decree or final order of the High Court to the Supreme
Court where-
(a) Such a case involves a substantial question of law of general importance.
(b) In the opinion of the High Court, such question needs to be decided by the Supreme Court.
This shall not affect the jurisdiction of the Supreme Court under Art.136 of the Constitution or
any rules framed by the Supreme Court. (not important)
Where any person wishes to appeal to the Supreme Court, he shall file a petition with the
court whose decree has been complained against. (Rule 2 of Order 45)
Such petition shall be heard and disposed of within a period of 60 days.
Under Rule 3, the petition shall state the grounds for appeal and pray for a certificate to be
issued stating that the case involves a substantial question of law or is one that needs to be
decided by the Supreme Court.
When the petition is filed, the court whose decision is being appealed against shall notify
the opposite party so that he may file his objections against the grant of the certificate.
The petition shall be dismissed where the certificate is refused.
Where the certificate is granted, the appellant shall deposit the required security and costs
within the specified period of time. Further security may be asked to be deposited before
transmission of records to the Supreme Court.
Once such security and costs are paid, the court from whose decision an appeal is
preferred shall declare the appeal as having been admitted, shall notify the respondent, shall
transmit to the Supreme Court a correct copy of the record under seal and furnish copies of
such papers in the suit as may be required by the parties on payment of a certain amount.
No notice is required to be sent to the legal representatives of a deceased respondent or a

deceased respondent where such respondent did not appear for any hearing as regards the
decree in the court whose decree is being appealed against.
Where the appellant fails to comply with an order requiring him to furnish security, the
appeal shall not proceed to the Supreme Court.
Rule 13 provides that even where a certificate for appeal to the Supreme Court has been
granted, the decree appealed from shall be executed unconditionally.
The court where it deems fit on cause
2/4/2019
shown by any of the parties may impound any
immovable property in dispute, may stay the execution of the decree taking security from the
appellant for due performance of the decree or may execute the decree taking security from
the respondent for due performance of the decree.
Where an appeal is heard by the Supreme Court and any decree or order is made, any
party who wishes to execute the order may apply to the court which originally passed the
decision appealed from with a petition accompanied by the decree or order of the Supreme
Court.
Such court shall transmit the record of the Supreme Court as the Supreme Court may
decide for execution.
The orders relating to such execution shall be appealable in the same manner as the
orders relating to execution of a decree.
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2/4/2019 APPEALS – Legal Bites – Law And Beyond

CIVIL PROCEDURE (HTTPS://WWW.LEGALBITES.IN/CIVIL-PROCEDURE/)

APRIL 17, 2017

There are 3 essential ingredients of an appeal:

(a) There must be a decision by a judicial or administrative authority.

Israel Beyond Belief

It is a substantive and not a procedural right.

no limitation on the application for conversion.

It does not however state as to who may file an appeal.

Thus, the following persons may file an appeal-

(a) Any party to the original proceeding or his legal representatives

As per S. 96(2), there may be an appeal even against an ex parte decree.

decree which is passed with the consent of the parties.

While filing an appeal, a memorandum of appeal must necessarily be submitted.

A memorandum of appeal is a document containing the grounds on which such appeal is

valid memorandum of appeal which are as follows-

(b) It must be signed by the appellant or his pleader.

(d) It must be accompanied by a certified copy of the decree.

The appeal must be valued as well.

The notice shall be accompanied by the memorandum of appeal.

Rule 22 deals with cross objections. (Very important)

A respondent may file cross objections even as an indigent person.

Powers of an Appellate Court –

To determine a case finally-

1 This is provided under S.107 and Rule 24.

3 It may or may not resettle issues in such case.

2 Remand means to send back.

10 An order of remand nullifies the decision of the lower court.

13 An order of remand is appealable.

Framing issues and referring them for trial-

1 This has been dealt with under S.107 and RulesAPPEALS

Taking of additional evidence-

Duties of the Appellate Court-

To decide the appeal finally

Judgment and Decree in Appeal-

Section 98 and Rules 30 to 34 deal with judgment in appeal.

later date notice of which has been given to the parties.

The judgment shall be read out in open court.

The judgment shall be signed by the judge(s).

(a) The date of the judgment

(b) The number of the appeal

(c) The names and description of the parties

(d) The relief granted and any other adjudication made

(e) The amount of costs incurred

(f) From what property has such costs incurred

A second appeal can be filed only in case of a decree.

A decree passed ex parte in appeal may be appealed against as well.

S.100-A provides an exception to the rule in S.100.

Appeals from orders-

S. 104 to 108 and Order 43 deal with appealable orders.

There shall be second appeal in case of an order.

Where a decree is passed against a party recording or refusing to record a compromise,

Appeals by indigent persons-

This is dealt with by Order 44.

An application to appeal as an indigent person must be accompanied by the

Rule 3 provides that where a person suing as an indigent person or appealing as an

(a) Such a case involves a substantial question of law of general importance.

Such petition shall be heard and disposed of within a period of 60 days.

The petition shall be dismissed where the certificate is refused.

No notice is required to be sent to the legal representatives of a deceased respondent or a

(Editor @ Legal Bites)

Author: Mayank Shekhar

 Post Views: 5,037