APPEALS

INTRODUCTION
An appeal in common legal usage denotes challenging an order passed by an inferior authority or
court. It is a creature of a statute. This means that unless the Act passed by the Legislature under
which an order is passed permits an appeal against the order passed by an authority, no appeal
can be filed. In such a case a writ petition is always available but that is a whole different story.
The Civil Procedure Code governs the procedure that is to be followed in a typical civil
litigation. It is this 'Act' which bestows an appeal to a litigant against an order or a judgment
passed by a civil court. It is this Act which provides the first appeal under Sec.96 and second
appeal under Sec.100
Right of appeal:
Every person has given right of appeal against decree. However, right of appeal is not an
inherent right. Rather it can only be availed where it is expressly granted by law. Appeal lies
against a decree and not against a judgment.
Nature of Right of Appeal:
Rights of appeal are substantive right and they are not mere matters of procedure. Right of
appeal is governed by the law prevailing at the date of the suit and not by law that prevails at the
date for the decision or at the date of filling of the appeal.
Appeals from a decree:
An appeal lies under section 96 CPC only from a decree because the decree marks the stage at
which the jurisdiction of the court which the appeal is made begins. As such unless a decree is
drawn up, no appeal lies from a mere finding, but if the finding amount to a decree, an appeal
would lie.
Kinds of Appeal:

Appeal may be classified not following two kinds: first appeal and second appeal.
PROCEDURE RELATED TO APPEALS
The appeal being the continuation of the suit is held not without any reason; it may be examined
in the light of the following propositions:
1.

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

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

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

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

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

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

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

appeals are over. This implies that it is deemed that the same suit is progress even while the
appeals are on. It is only when the courts have finally come to a conclusion, after all possible
appeals have been used and tried by the appellant, that the suit is said to have been conclusively
decided.

WHO CAN APPEAL?

(i)

Any party to the suit, who is adversely affected by the decree or the transferee of
interest of such party has been adversely affected by the decree provided his name

(ii)

was entered into record of suit.

An auction purchaser from an order in execution of a decree to set aside the same on

(iii)

the grounds of fraud.

Any person who is bound by the decree and decree would operate res judicata against
him.

Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316
In this case, the Trial Court judge prohibited the exhibition of film both in India and abroad.
Session Judge permitted the exhibition of film in abroad. Subsequently, a party who moved in
appeal did not have locus standi. It was reversed by division bench saying that its not proper on
the part of judge as he entertained the suit on which party has no locus standi.
FIRST APPEAL
As already stated in the introduction, the provisions relating to the first appeals are sections 9699A, 107 and order 41. Section 96 of the code recognizes the right to appeal from every decree
passed by any court of original jurisdiction. It does not enumerate the persons capable of
appealing. Two conditions have to be fulfilled before an appeal may be filed under this section :
1.

The subject matter of an appeal is always a decree; an appeal is allowed only after a

decree has been passed, which implies the conclusive determination of the suit.
2.

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

The ordinary rule is that only a party to a suit adversely affected to by the decree or any of his
representatives in interest may file an appeal. But a person who is not a party to the suit may file
an appeal, only if the court has granted special leave, provided that he is either bound by the
decree or order or is aggrieved by it or is prejudicially affected by it. The case of AdiPherozshah
v. H.M. Seervai, the court observed that the test to see whether a person is aggrieved or not is to
see whether he has a genuine grievance because an order has been made which prejudicially
affects his interests either pecuniary or otherwise. Similarly, a person who has waived his right to
appeal or agrees not to appeal loses his right to appeal. The right to appeal is also lost if the court
to which the appeal lies is abolished and no court is substituted in its place.
Generally, first appeal shall lie from every decree passed by any court exercising original
jurisdiction to the court authorizes to hear appeal from the decisions of such court. It is
settled law that the court of first appeal is entitled to reconsider the entire case i.e. both on facts
and on law. The first appellate court can hold that the conclusion arrived by the trial court on a
particular fact is incorrect and on the basis of evidence available before the trial court hold that
such a finding could not be returned. Thus, the first appellate court can reverse a finding of fact

by the trial court. The same holds good on a question of law also. The first appellate court is thus
the last court where facts are also questioned. Going back to the example suppose the first
appellate court finds that Ramesh is not entitled to succeed on account of the fact that he was not
always ready and willing to purchase the plot it would reverse the trial court judgment and set
aside the decree. Therefore Ramesh would lose on a question of fact (finding on a question of
readiness

and

willingness

is

always

question

of

fact).

Forum of Appeal:
First appeal lies to the District court, if the value of the subject matter of the suit is below Rs.
Two lakhs, and to the high court in all other cases.
Appeal against interlocutory order:
An appellate court does not have the benefit of the evidence which has to be recorded in the suit
under appeal and as it does not have such benefit, it cannot give a conclusive finding on any
issue which turns on evidence and it should also not given such a finding because if it did so, it
would prejudice the trial courts appreciation of evidence.
Jurisdiction of Appellate court:
The appellate court has got the jurisdiction to adjudicate upon a matter only if there is either an
appeal pending or cross-objections field by the respondents. The court could not suo-motu
interfere with the judgment of the trial judge which was subject to its appellate jurisdiction. Any
order so passed is without jurisdiction and hence a nullity. The objection on this ground can be
taken at any time and in any proceedings.
1. The First Appeal can be admitted on the grounds (1) question of fact; and also (2) question
of law.
2. The First Appeal can be entertained by subordinate Courts to District Judges Court and to
High Courts. Example: An appeal from the District Munsiff Magistrate s Court or Subordinate
Judges Court to the District Judge.
3. Sections 96 to 99-A, 107 and Order 41 deal with First Appeals

4. The Memorandum of first appeal must set out the grounds of objections to the decree appealed
from
SECTION 96:
(1) Save where otherwise expressly provided in the body of this Code or by any other law for the
time being in force, an appeal shall lie from every decree passed by any Court exercising original
jurisdiction the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex pane.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
1

[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature

cognizable by Courts of Small Cause, when the amount or value of the subject-matter of the
original suit does not exceed 2[ten thousand rupees].]
COMMENTS
(i) When an ex parte decree is passed the defendant has two clear options. One to file an appeal
and another to file an application under O. 9, R. 13 to set aside the order. Once application under
O. 9, R. 13 is dismissed, he cannot by filing first appeal dispute the correctness of order posting
suit for ex parte hearing or show cause for his non-appearance; Bhanu Kumar Jain v. Archana
Kumar, AIR 2005 SC 626.
(ii) The subsequent events in first and second appeals cannot be taken indiscriminately into
account. It may be permitted to be taken into account by appellate court by means of amendment
of pleadings, in order to avoid multiplicity of proceedings but not where such amendment could
cause prejudice to vested right of plaintiff and render him remedied; Shyam Sunder v. Ram
Kumar, (2001) 8 SCC 24.
(iii) New plea relating to question of fact cannot be allowed to be raised for the first time before
the Ist appellate court

SECTION 97:
Where any party aggrieved by a preliminary decree passed after the commencement of this Code
does not appeal from such decree, he shall be precluded from disputing its correctness in any
appeal which may be preferred from the final decree.

SECTION 98:
(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in
accordance with the opinion of such Judges or of the majority (if any) of such Judges.
(2) Where there is no such majority which concurs in a judgment varying or reversing the decree
appealed from, such decree shall be confirmed:
Provided that where the Bench hearing the appeal is [composed of two or other even number of
Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the
Judges composing the Bench differ in opinion on a point of law, they may state the point of law
upon which they differ and the appeal shall then be heard upon that point only by one or more of
the other Judges, and such point shall be decided according to the opinion of the majority (if any)
of the Judges who have heard the appeal including those who first heard it.
[(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the
letters patent of any High Court.]
COMMENTS
Reference for opinion is permissible only if the judges who have heard the case have not
pronounced their final judgments

SECTION 99A:
No order under section 47 to be refused or modified unless decision of the case is prejudicially
affected. Without prejudice to the generality of the provisions of section 99, no order under
section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity

in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially
affected the decision of the case.
SECTION 107:
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall
have power(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as
nearly as may be the same duties as are conferred and imposed by this Code on Courts of
original jurisdiction in respect of suits instituted therein.
COMMENTS
Neither the issue framed nor evidence led in trial court in respect of mixed question of fact and
law. New plea raised before the Supreme Court not permissible on the ground that the
establishment of fact by evidence for decision is necessary; VasanthaViswanathan v. V.K.
Elayalwar, (2001) 8 SCC 133.
Right to Appeal: A Statutory and Substantive Right
Right to appeal is statutory and substantive right. It is not merely appeal procedural right.
Statutory right means must be conferred by statute unless it provides there wont be any right to
appeal. While right to institute a suit is not conferred by law. The right is inherent. But right to
appeal has to be conferred by appeal statute. Where statute provides for right to appeal, it may
constitute appeal machinery where shall the appeal lie. While the same isnt true for right to sue.
A civil suit has to be filed subject to condition of jurisdiction. An appeal is appeal substantive
right. Right to appeal cant be taken retrospectively because general rule of specific
interpretation. Substantive law operates prospectively unless an express statute provides so.

SECOND APPEAL
Section 100 of the Code of Civil Procedure, 1908 provides for a second appeal to the High Court
from an appellate decree. There is no vested right of appeal unless the statute so provides. If a
statute provides for a condition precedent to be satisfied before a court can exercise its appellate
jurisdiction, the court is under obligation to satisfy itself whether the condition prescribed is
fulfilled. Exercise of the appellate jurisdiction without the fulfilment of the statutory mandate
would be without jurisdiction and therefore a nullity
Though Section 100 CPC deals with the High Court's jurisdiction in second appeal, it has the
effect of declaring that the first appellate court is the final court on facts and the High Court in a
second appeal cannot reappreciate evidence or facts unless the case involves a substantial
question of law.
Section 100 CPC was amended in 1976 imposing drastic restriction on the High Court's
jurisdiction in entertaining a second appeal. Even prior to the 1976 amendment, the first
appellate court was treated as the final court of facts by the Privy Council. The High Court had
no right to sit in appeal on facts.
In Durga Choudhrain v. Jawahir Singh Choudhri the Privy Council held thus: (IA p. 127)
"There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of
fact, however gross or inexcusable the error may seem to be."1
Grounds for Second Appeal
It is settled proposition of law that second will lie where judgment is uncertain in its meaning
and finding is vague and inconclusive or where reasons are not given at all. Following are the
grounds where second appeal is competent and not otherwise.
(i) Decision being contrary to law
A decision contrary to law is open to interference in second appeal, and the decree may be
amended to bring it in conformity with legal requirements.
1

AIR 1959 SC 57

(ii) Decision being contrary to the usage having force of law

The expression usage having the force of law means a local or family usage, which is
distinguished from general law. A usage having the force of law should be ancient, invariable,
certain and reasonable.
(iii) Decision having failed to determine some material issue of law or usage having the
force of law
The failure to determine, some material issue of law or usage having the force of law, by the
lower court, is a good ground for second appeal.
(iv) Substantial error or defect in procedure
Where there is a substantial error or defect in procedure, provided by CPC or by any other law
for the time being in force, which may possibly have produced error or defect in the decision of
the case upon merits, it can be a ground for second appeal.
What is a substantial question of law?
The test to determine whether a question is a substantial question of law or not was laid down by
a Constitution Bench of the Supreme Court in Chunilal V. Mehta and Sons Ltd. v.Century Spg.
and Mfg. Co. Ltd.11 while determining the said expression occurring in Article 133(1) of the
Constitution of India. The Supreme Court laid down the test as follows:
"The proper test for determining whether a question of law raised in the case is substantial
would, in our opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question in the
sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or
is not free from difficulty or calls for discussion of alternative views. If the question is settled by
the highest court or the general principles to be applied in determining the question are well
settled and there is a mere question of applying those principles or that the plea raised is palpably
absurd the question would not be a substantial question of law."
The above test laid down by the Supreme Court is to be applied by the High Courts to acquire
jurisdiction under Section 100 CPC.

Allowing Revision to be treated as second appeal

The High Court has allowed the revision to be treated as second appeal. The only point in issue is
from what date this revision should be treated to be converted into a second appeal:
(a) from the date a misconceived civil revision petition was instituted
(b) from the date is request was made for its conversion or
(c) from the date it was allowed to be converted and registered as a second appeal
Cases where second appeal is barred
Section 102 provides that no second appeal shall lie in the following suits
(a) Suit of a nature cognizable by court of small causes
A suit the value of which does not exceed Rs.25000 is a suit of a nature cognizable by courts of
small causes. It may be tried either by small cause court or by a civil court, and in that case
second appeal is barred by section 102 of CPC.
(b) Suits where value does not exceed Rs. 25,0000
NO second appeal, shall lie in any other suit, where the value of the subject nature of the original
suit does not exceed Rs. 2,50000.
CONCLUSION
The preceding sections showed that the courts have wide ranging powers in matters of
appeal cases. This is specially the case of the first appeals, where the courts have almost
identical powers as that of the court of original trial jurisdiction. As mentioned above, section
107 of the code recognizes the principle that an appeal is, in effect, a continuation of the
suit. It would be pertinent to have a recapitulation of the main propositions upon which such
a principle finds basis. They are:
1.

The appellate court has all the powers and has to do all those things necessary that a
trial court has and has to do. In this sense, even when the case goes on appeal, it is
just the name that has undergone a change; the form and substance still remain the
same.
2. In the same vein as above, the appellate court has to do all that has been done by
the trail court in that particular case, and then either agree or disagree from the trial
court.

3.

Hence, even the appellate court has to write a judgement and pass a decree. In the
event of the court upholding the lower courts decision, the appellate court may write
down the same decree, without changing it, and the decree will now be deemed to
have been that of the appellate court.

The above three propositions have been dealt with in details in the forgoing sections and
hence do need any further elucidation.
The important point to bear in mind when it comes to making a statement to the effect that
an appeal is a continuation of the suit, is that it is more in the interest of justice and
adherence to the principles of fair trial that these provisions ought to be seen. No doubt that
the right to appeal is not an inherent right and has to be mandated by the law, yet it is not
that a very technical and mechanical view has to be taken into account.