Friday Guest Lecture On Appeal

-By Hon’ble Justice D.P. Chaudhary (Retd.)

At: KIIT Law School
19-04-24

Appeal Reference & review

Meaning Provisions Judgements

Revision
 What is an Appeal?
• Expression appeal is not defined in Code anywhere.
• Appeal removes a cause from inferior to a superior court for purpose of a testing
soundness of decision of an inferior court.
• Judicial examination of decision by a higher court of decision of inferior court.
• Right of appeal every person has been given right of appeal against decree.
However, right of appeal isn’t an inherent right. Rather it can only be availed
where it is expressly granted by law. Rights of appeal are substantive or statutory
right & they aren’t mere matters of procedure. Right of appeal is governed by law
prevailing at date of suit & not by law that prevails at date of decision or at date of
filing appeal.
• Sir Dinshaw Mulla stated- “There is no definition of appeal in code, but their lordships
have no doubt that any application by a party to appellate court asking to set aside or
reverse a decision is a subordinate court, is an appeal within ordinary acceptation of
term.”
 Relevant provisions regarding appeal & second
• S. 96, 97, 98, 99, of CPC for 1st appealappeal
• S. 100, 100A, 101, 102, 103 of CPC for 2 appeal
nd

• S. 104, 105, 106 for appeals from orders.

• S. 109 to 112 for appeals to SC read with A.132-134A & 136 of Constitution.
• Order 41, 42, 43 & 45 of CPC.
High Courts-
o S.96- doesn’t apply to appeal from decree passed by original side of HC.
o It is governed by Letters Patent clauses.
o CPC- S.104 also governs same.
S. 96- Nature & Scope-
• An appeal is maintainable against any decree from a court exercising original jurisdiction.
• Appeal also applicable for an ex-parte decree.
• Bars an appeal against consent decree.
• No appeal from a decree of petty cases unless a question of law arises.
Legislative Changes-
o S. 96 corresponds to S.540 of code, 1882.
o Subsec.4 inserted in CPC in 1976 to reduce appeal on a question of facts in petty cases.
 Law Commission (54th Report)
“No first appeal should lie in any suit of nature cognizable by court of small causes where
the amount doesn’t exceed three thousand”
Extent & Applicability- S.96 expressly confers a right of appeal from every decree
passed by any court authorized from every jurisdiction to court exercising original
jurisdiction to court authorization to hear appeals from decision of such court.
Essential elements-
• A decision from which an appeal is made.
• A person or person aggrieved.
• Reviewing body ready to review.
Right to Appeal-
 Two things required to constitute appellate jurisdiction were existence of relation of
superior & inferior court and inferior court and power on part of dormer to review.
 Creation of new right is plainly an act which requires legislative authority.
 Right to appeal isn’t natural or Inherent right.
 It is only conferred by statute.
 It is not an fundamental or a constitutional right.
 Appeal against ex-parte
• Didn’t exist in odd code of 1882
• Inserted in new code.
• Defendant against whom ex-parte is passed, has a remedy to appeal against it.
• Even after dismissal under order 9 rule 13, a regular appeal is maintainable.
Letters Patent Appeal-
o Code doesn’t make provision for an appeal within HCs.
o Such appeals are addressed by Letters Patent Clauses.
o Under judgement of a single of a single bench may be appealed before a division
bench of same court provided that such isn’t prohibited by court.
o To be filed within 30 days.
o Order 41 rules applies to letters patent also.
Limitation-
• Code doesn’t provide for a limitation period.
• Limitation act of 1963 provides for limitation.
• Rule 3-A of Order 41 prescribes when can an appeal be presented after limitation is
over.
 First Appeal
Generally, it shall lie from every decree passed by any court exercising original jurisdiction to
court authorize to hear appeal from decisions of such court. S.96 provides that an appeal shall
lie from all decrees passed in original jurisdiction of court. An appeal shall lie from a decree
passed ex-parte. No appeal shall lie from a compromise decree or decree of small cause
courts where value of subject matter doesn’t exceed 10,000 rupees, except where a
question of law arises.
Who may appeal-
• Only such persons, who are party to suit, or who are adversely affected by decree may
appeal; Stranger to suit or proceedings isn’t prohibited by CPC 1908 from filing an order
whereby he was aggrieved.
• Person otherwise competent to file appeal.
• Persons who are party to suit & are aggrieved by decision of court.
• Legal representatives of party after if party is dead.
• Transferee of interest of party.
• Any other person, with leave of court, if party appearing must have been adversely affected
by such determination.
 Appeal against Preliminary decree u/s 97
S.97 provides that if any person aggrieved from preliminary decree doesn’t appeal from same, he
shall be precluded (not allowed) from disputing its correctness in an appeal from final decree.
Thus, a person must appeal from preliminary decree if he isn’t satisfied with same & shouldn’t
wait for final decree as whatever have been decided in preliminary decree is final & will not
change even in final decree.
Decisions in appeal u/s 98- All decisions in an appeal shall be made by majority & if no majority
is established which necessary to alter or reverse decree appealed from, then decree shall stand
confirmed. It is right of first appellate court to come to a conclusion different from that of trial court
on re-appraisal of evidence.
• Reference to other judges where no majority.
• When a court consisting of more than two judges & an appeal is heard by its bench of two
judges & they differ on a point of law, they may refer that point to other judges of same court
& then matter shall be decided a/c to majority, including judges who refer that matter.
Effect of irregularity u/s 99- Decision which is correct on merits, & within jurisdiction of court
making it, shouldn’t be set aside or reversed by an appeal, merely on grounds of technical or
immaterial defects i.e. misjoinder of parties etc.
 Recent Cases on Section 96, CPC
V.N. Krishna Murthy vs Sri Ravikumar- SC in this case held that an
appeal under Section 96 of the Civil Procedure Code, would be
maintainable only at the instance of a person aggrieved by and
dissatisfied with the judgment and decree. It was held that the expression
‘person aggrieved’ does not include a person who suffers from a
psychological or an imaginary injury; a person aggrieved must, therefore,
necessarily be one, whose right or interest has been adversely
affected or jeopardized.
Manjula v. Shyamsundar; ( LL 2021 SC 52) -A bench comprising
Justices S. Abdul Nazeer and Surya Kant observed that an appellate court's
jurisdiction under Section 96 of CPC involves a rehearing of appeal on
questions of law as well as fact. It noted that the provision provides for the
filing of an appeal from the decree passed by a court of original
jurisdiction and Order 41 Rule 31 of CPC provides the guidelines to the
appellate court for deciding the appeal. The bench said that the judgment
of the appellate court shall state (a) points for determination; (b) the
decision thereon; (c) the reasons for the decision; and (d) where the
decree appealed from is reversed or varied, the relief to which the
appellant is entitled.