First appeals under the cpc 1908

Submitted by
Name: -Aditya Kumar
Enrolment number: -20FLCDDNO2123
Section: - B
Batch: -BA.LLB 4 YEAR
Topic:- First appeals under the cpc 1908

Submitted to
Dr. Vivek Kumar
Asst. professor
ICFAI Law University
Dehradun
 Table of Contents

1. Introduction
2. Meaning of appeal
3. Essentials of appealing cases
4. Right to appeal
5. One right to appeal
6. No right to appeal
7. Case law
8. First appeal
9. Second appeal
10. conversion of an appeal into revision
11.Who may appeal?
12. The appeal against ex parte decree
13. No appeal against a finding
14. The appeal against a dead person
15. Forms of appeal
16. Forum of appeal
17. Presentation of appeal
18. Summary dismissal
19. Doctrine of merger
20. Cross objections
21. powers to appellate court
22. Duties of an appellate court
23. Judgment
24. Decree
25. letters patent appeal
26. Appeal of Sc
27. Conclusion
Introduction
An appeal is a remedial concept determined as an individual’s right to seek
justice against an unjust decree/order via referring it to a Superior Court.
Sections 96 to 99A; 107 to 108 & Order 41 of the Code of Civil Procedure,
1908 deal with appeals from original decrees known as First appeals.
Meaning of appeal
The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law
Dictionary, while construing the concept of ‘appeal’ in its most original and
natural sense, explains it as “the complaint to a superior court for an injustice
done or error committed by an inferior one, whose judgment or decision the
Court above is called upon to correct or reverse. It is the removal of a cause
from a Court of inferior jurisdiction to one of superior jurisdiction, for the
purpose of obtaining a review and retrial”.
Essentials of appealing cases
An appeal is a proceeding where a higher forum reconsiders the decision of a
lower forum, on questions of law & fact with jurisdiction to confirm, reverse,
modify the decision or remand the matter to the lower forum for fresh decision
in compliance of its directions. The essentials of appealing cases can be
narrowed down to 3 elements:
 A decree passed by a judicial/administrative authority;
 An aggrieved person, not necessarily a party to the original proceeding;
and
 A reviewing body instituted for the purposes of entertaining such appeals.
Right to appeal
The right to appeal is a statutory & substantive one. The statutory nature of an
appeal implies that it has to be specifically conferred by a statute along with the
operative appellate machinery as opposed to the right to institute a suit, which is
an inherent right. It is substantive in the sense that it has to be taken
prospectively unless provided otherwise by any statute. This right could be
waived off via an agreement, and if a party accepts the benefits under a decree,
it can be estopped from challenging its legality. However, an appeal accrues to
the law as found on the date of the institution of the original suit.
One right to appeal
Section 96 of the CPC provides that an aggrieved party to any decree, which
was passed by a Court while exercising its original jurisdiction, is conferred
with at least one right to appeal to a higher authority designated for this
purpose, unless the provisions of any statute make an exception for it. Section
97, 98 and 102 of the CPC enumerate certain conditions under which no further
appeal is permitted, hence attributing to a single right of appeal.
No right to appeal
No person has a right to appeal against a decision unless he is a party to the suit,
except on special leave of the Court. An essential element to be taken into
account while considering one’s right to appeal is whether such person is
adversely affected by the decision/suit, which is a question of fact to be
determined in each case.
CASE Law
Garikapati Veeraya v. Subbiah Chaudhary
In the instant case, it was held that the pre-existing right to appeal to the Federal
Court continued to exist and the old law which created such a right also
continued to exist. It construed to the preservation of this right while
recognizing the change in its judicial machinery from the Federal Court to the
Supreme Court. However, the continuance of the old law is subject to the
provisions of the Constitution.
First appeal
Section 96 of the CPC provides that an appeal shall lie from a decree passed by
any Court exercising original jurisdiction to the authorized appellate Courts,
except where expressly prohibited. A combined reading of Sections 2(2), 2(9),
& 96 of the CPC indicates that a regular First appeal may/may not be
maintainable against certain adjudications.
Second appeal
Section 100 provides for a second appeal under this code. It states that an appeal
shall lie to the High Court from a decree passed in the first appeal by a
subordinate Court, excepting the provisions speaking to the contrary. The scope
of exercise of jurisdiction under this section is limited to a substantial question
of law framed at the time of admission of appeal or otherwise.
Conversion of an appeal into revision
In the case of Bahori v. Vidya Ram, it was held that since there’s no specific
provision under the CPC for the conversion of an appeal into a revision or vice
versa, the exercise of power by the Court has to be only under Section 151.
Further, the inherent powers of the Court, though discretionary, permit it to pass
such orders as may be required to meet the ends of justice. The only
precondition to such conversion is that due procedure is adhered to during the
filing of the original appeal/revision.
Who may appeal?
A regular first appeal may be preferred by one of the following:
 Any party to the suit adversely affected by a decree, or if such party is
dead, by his legal representatives under Section 146;
 A transferee of the interest 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;
 An auction purchaser may appeal against an order in execution setting
aside the sale on the ground of fraud;
 No other person, unless he is a party to the suit, is entitled to appeal under
Section 96.
 A person, who is not a party to the suit, may prefer an appeal from a
decree/order if he’s bound/aggrieved/prejudicially affected by it via
special leave of the appellate Court.
Appeal by one plaintiff against another plaintiff
In Iftikhar Ahmed v. Syed Meherban Ali, it was concurred that if there exists a
conflict of interest between plaintiffs and it is necessary to resolve it via a Court
to relieve the defendant, and if it is in fact decided, it will operate on the lines of
res judicata between co-plaintiffs in the subsequent suit.
Appeal by one defendant against another defendant
The rule in a case where an appeal is preferred not against the originally
opposite parties but against a co-defendant on a question of law, it could be
allowed. Such an appeal would lie even against a finding if it’s necessary while
operating as res judicata (a matter that has been adjudicated by a competent
Court and hence may not be pursued further by the same parties).
The appeal against ex parte decree
In the first appeal under Section 96(2), the defendant on the merits of the suit
can contend that the materials brought on record by the plaintiff were
insufficient for passing a decree in his favour or that the suit was not otherwise
maintainable. Alternatively, an application may be presented to set aside such
ex parte decree (it is a decree passed against a defendant in absentia). Both of
these remedies are concurrent in nature. Moreover, 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.
No appeal against consent decree
Section 96(3), based on the broad principle of estoppel, declares that no decree
passed by the consent of the parties shall be appealable. However, an appeal lies
against a consent decree where the ground of attack is that the consent decree is
unlawful being in contravention of a statute or that the council had no authority.
No appeal in petty cases
Section 96(4) bars appeals except on points of law in cases where the value of
the subject-matter of the original suit does not exceed Rs. 10,000, as cognizable
by the Court of Small Causes. The underlying objective of this provision is to
reduce the number of appeals in petty cases.
The appeal against Preliminary Decree
Section 97 provides that the failure to appeal against a preliminary decree is a
bar to raising any objection to it in the appeal against a final decree. The Court
in the case of Subbanna v. Subbanna provides that, the object of the section is
that questions which have been urged by the parties & decided by the Court at
the stage of the preliminary decree will not be open for re-agitation at the stage
of preparation of the final decree. It’d be considered as finally decided if no
appeal is preferred against it.
No appeal against a finding
The language of Section 98(2) is imperative & mandatory in terms. The object
appears to be that on a question of fact, in the event of a difference of opinion,
views expressed by the lower court needs to be given primacy & confirmed.
The appellate court cannot examine the correctness of the finding of facts and
decide upon the correctness of either view.
The appeal against a dead person
A person who has unknowingly filed an appeal against a person who was dead
at the time of its presentation shall have a remedy of filing an appeal afresh
against the legal heirs of such deceased in compliance of the Limitation Act.
Forms of appeal
Appeals may be broadly classified into two kinds:
 First appeal; and
 Second appeal.
The sub-categories under appeals are:
 Appeal from original decree;
 Appeal from order;
 Appeal from appellate decree/second appeal/to High Court;
 Appeal to the Supreme Court.
Forum of appeal
It is the amount/value of the subject-matter of the suit which determines the
forum in which the suit is to be filed, and the forum of appeal. The first appeal
lies to the District Court if the value of the subject matter of the suit is below
Rs. 2,00,000; and to the High Court in all other cases.
Presentation of appeal
Order 41 provides the requirements for a valid presentation of an appeal that has
to be made by way of a memorandum of appeal which lays down the grounds
for inviting such judicial examination of a decree of a lower court.
Summary dismissal
In Hanmant Rukhmanji v. Annaji Hanmant, it was held that when an appellate
Court dismisses an appeal under Section 151, a judgment has to be written
summarising the cogent reasons for such dismissal, along with a formal decree.
Doctrine of merger
Any decree passed by the appellate Court is a decree in the suit. As a general
rule, the appellate judgment stands in the place of the original judgment for all
purposes, i.e. the decree of the lower Court merges in the decree of the Superior
Court. In-State of Madras v. Madurai Mills Co Ltd., it was held that this
doctrine is not a rigid one with universal application, but it depends on the
nature of the appellate order in each case and the scope of the statutory
provisions conferring such jurisdiction.
Cross objections
According to Order 41, R.22(1) & 33, cross-objections can be made by the
defendants. They’re necessary only when some directions are issued against
them that are to be challenged on the basis of which part relief has been granted
to the plaintiff even without such cross-objections.
Powers of Appellate Court
Section 107 prescribes the powers of an appellate Court
 To remand a case;
 To frame issues & refer them for trial;
 Reappraisal of evidence when a finding of fact is challenged before it;
 To summon witnesses;
 Can reverse inference of lower Court, if not justified;
 Appreciation of evidence.
Duties of an appellate court
 The appellate Court has a duty to analyze the factual position in the
background of principles of law involved and then decide the appeal.
 To provide cogent reasons for setting aside a judgment of an inferior
Court.
 To delve into the question of limitation under Section 3(1) of the
Limitation Act.
 To decide the appeal in compliance with the scope & powers conferred
on it under Section 96 r/w O.XLI, R.31 of the CPC.
Judgment
Section 2(9) states that a “judgment” refers to the statement given by the Judge
on the grounds of a decree/order.
Decree
Section 2(2) provides that a “decree” is a formal expression of an adjudication
which conclusively recognises the rights of the parties with any of the disputed
matters in a suit, and maybe preliminary/final. It includes the rejection of a
plaint under Section 144 but does not include adjudication that’d result in an
appeal from order; or any order of dismissal for default.
Letters patent appeal
Section 100A expressly bars a Letters Patent Appeal from an order of a learned
Single Judge of the High Court, on/after 01/07/2002, in an appeal arising from
an original/appellate decree. The bar is absolute & applies to all such appellate
orders.
Appeal to SC
Article 133 of the Constitution of India & Section 109 of the CPC provides the
conditions under which an appeal could be filed in the Supreme Court:
 From a judgment, decree, or final order of the High Court;
 A case pertaining to a substantial question of law of general significance;
 The High Court opines it to be fit for the Supreme Court to deal with such
a question.
Conclusion
Appeals are recognized as statutory rights of persons aggrieved by any decision
of an inferior court in the interest of justice. First appeals are a form of appeal
prescribed under the Code of Civil Procedure. The period of limitation in case
of an appeal to the first appellate authority is 90 days where it lies to the High
Court. Finally, it can be concluded that the provisions of the CPC extensively
deal with the substantive as well as procedural aspects relating to all kinds of
appeals, while making express modifications in order to be accommodative of
the more specific legislation.