University of Petroleum and Energy Studies

SCHOOL OF LAW
B.Com.,LL.B.(HONS.)

SEMESTER 4

ACADEMIC YEAR:2017-2018 SESSION: JAN-MAY, 2018

ASSIGNMENT

Subject – Civil Procedure Code

NAME: SEHAJ SOFAT

SAP NO: 500053933

ROLL NO- 082

 INTRODUCTION
Normally suit concludes by pronouncement of final judgment under Order 20 Rule 1. (Such judgment
in view of its definition given under Section 2(10) means the statement given by the Judge on the
grounds of the decree.) Thereafter, by virtue of Order 20 Rules 6 and 7 the decree shall be drawn
which shall agree and be in accordance with the judgment and shall be signed by the judge on being
satisfied about its correctness as such. The decree shall bear date, the day on which the judgment was
pronounced. The main ingredient of the decree is operative portion of the judgment. According to
Order 20 Rule 6 decree shall contain particulars of the claim and shall specify clearly the relief
granted or other determination of the suit. Amount of costs are also to be stated therein. (Rules 6, 6-A
and 7 of order 20 quoted at the end).1

So, if any party is aggrieved by such judgment and decree, he can appeal against such judgement and
decree. He can even appeal against a preliminary decree.

The first appeal may be claimed as of a statutory right whereas other appeals squarely rest on the
discretion of the court.

The statutory right of appeal accrues to a party on the date of institution of suit whereas it actually
comes into existence when any adverse judgment is passed against any party to the suit and then only
he can exercise it.

MEANING
The expression “appeal” has not been defined in the Code. According to the dictionary
meaning, “appeal” is “the judicial examination of the decision by a higher court of the
decision of an inferior court”2.

Any application by a party to an appellate court, asking to set aside or reverse a decision of a
subordinate court, is an appeal within ordinary acceptation of the term.3

In Nagendra Nath Dey v. Suresh Chandra Dey4, the Privy Council held:
“There is no definition of appeal in the Code of Civil Procedure, but their lordships have
no doubt that any application by a party to an appellate court, asking to set aside or
reverse a decision of a subordinate court, is an appeal within the ordinary acceptation of
the term …. In other words, it is a complaint made to the higher court that the decree
passed by the lower court is unsound and wrong.

1
http://ijtr.nic.in/APPELLATE%20JURISDICTION.pdf assessed on 06-03-2017 at 23:32 p.m.
2
Chamber’s 21st Century Dictionary (1997) at p.59.
3
Jatindra Kumar Das, “Code of Civil Procedure”, PHI Learning Pvt. Ltd. Delhi, ed. 2014, pg. 610.
4
AIR 1932 PC 165.
OBJECT
It is based on the principle that all men are fallible and judges are human beings who may
commit a mistake. A judge who has not committed an error is yet to be born. The dictum
applies to all Judges from lowest to highest courts. 5 Basic object of appeal is to test
soundness of decision of lower court.6

The Law Commission also observed, “An unqualified right of first appeal may be necessary
for the satisfaction of the decretal litigant but a wide right of second appeal is more in the
nature of luxury”.7

BASIC ELEMENTS

Every appeal has three basic elements:8

1. A decision (usually a judgment of a court or the ruling of an administrative authority);

2. A person aggrieved (who is often, though not necessarily, a party to the original proceeding);
and
3. A reviewing body ready and willing to entertain an appeal.

RIGHT OF APPEAL

A right of appeal is not an inherent or natural right.9 An appeal is a creature of the statute and there is
no right of appeal unless it is given clearly and in express terms by a statute. Whereas sometimes an
appeal is a matter of right, sometimes it depends upon the discretion of the court. It is a vested right
and accrues to the litigant and exists as on and from the date the lis commences and although it may
be exercised when the adverse judgement is pronounced, such right is to be governed by the law
prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the
date of the decision or at the date of the filing of the appeal.

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 won’t 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 isn’t 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 can’t
be taken retrospectively because general rule of specific interpretation. Substantive law operates
prospectively unless an express statute provides so. The law of limitation may deprive a person of his
right that he may enjoy to prefer an appeal by virtue of statutory provisions.10 This acts as an

Mona Panwar v. High Court of Judicature of Allahabad, (2011) 3 SCC 496.

6
http://thelawstudy.blogspot.in/2015/05/appeal-and-its-kinds-under-cpc.html assessed on 06-03-
2017 at 23:39 p.m.
7
Law Commission’s 44th Report, p. 84.
8
C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013,
p. 476.
9
Anant Mills Co. Ltd. v. State of Gujarat, (1975) 2 SCC 175.
10
Garikapati Veerya v. N. Subbiah Chaudhary, AIR 1957 SC 540.
condition for filing an appeal that if you want to file an appeal, than you will have to file within the
period of limitation.

In Anant Mills Co. Ltd. v. State of Gujarat,11 speaking for the Supreme Court, Khanna, J. said: “It is
well-settled by several decisions of this court that the right of appeal is a creature of a statute and there
is no reason why the legislature while granting the right cannot impose conditions for the exercise of
such right so long as the conditions are not so onerous as to amount to unreasonable restrictions
rendering the right almost illusory.”

RIGHT TO SUIT AND RIGHT TO APPEAL

There is a fundamental difference between suit and appeal and the same is being explained properly
by J. Chandrachud in Ganga Bai v. Vijay Kumar12 in the following words:

“There is a basic distinction between the right of suit and the right of appeal. There is an inherent right
in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at
one’s peril, bring a suit of one’s choice. It is no answer to a suit howsoever frivolous the claim, that
the law confers no right to sue. A suit for its maintainability requires no authority of law and it is
enough that no statute bars the suit. But the position regarding appeals is quite the opposite. The right
of appeal inheres in no one and therefore an appeal for its maintainability must have the clear
authority of law.”

APPEAL IS A CONTINUATION OF SUIT

An appeal is a continuation of suit and hence, decree passed by an appellate court would be construed
as decree passed by the Court of first instance. An appeal is virtually a rehearing of the matter. The
appellate court possesses the same powers and duties as the original court. Once again, the entire
proceedings are before the appellate court which can review the evidence as a whole, subject to
statutory limitations, if any, and can come to its own conclusion of such evidence.13 In Dayawati v.
Inderjit14, speaking for the Supreme Court, Hidayatullah, J, stated:

“An appeal has been said to be ‘the right of entering a superior Court and invoking its aid and
interposition to redress the error of the Court below’. The only difference between a suit and an
appeal is that an appeal ‘only reviews and corrects the proceeding in a cause already constituted but
does not create the cause’.”

It is obvious that when an appeal is made, the appellate authority can do one of the following three
things, namely:

1 It may reverse the order under appeal;

2 It may modify that order; and
3 It may merely dismiss the appeal and thus confirm the order of the lower court without any
modification.

11
(1975) 2 SCC 175.
12
AIR 1974 SC 1126.
13
Ramankutty v. Avara, (1994) 2 SCC 642.
14
AIR (1966) SC 1423.
In all three cases after disposal of the appeal by the appellate authority, the order so passed by the
authority will be operative irrespective of the fact that this order has reversed, modified or confirmed
the decision of the lower court. In fact it is the appellate decision alone which subsists and operative
as well as capable of enforcement.15

DOCTRINE OF MERGER

The doctrine of merger is based on the principle that there cannot be at one and the same time, more
than one operating decree governing the same subject matter. Hence, as soon as an appeal is decided
by an appellate court, the decree of the trial court ceases to have existence in the eyes of the law and is
superseded by a decree by an appellate court. In other words, the decree passed by the trial court
merges with the decree of the appellate court.

RIGHT OF APPEAL: MATERIAL DATE

The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant
and exists as on and from the date the lis commences and although it may be actually exercised when
the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of
the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at
the date of the filing of the appeal.16

FIRST APPEALS
STATUTORY PROVISION

Section 96-99A, 107 and Order 41 of the Code confers the right of appeal from the court of first
instance. It reads as under:

96. Appeal from Original decree:

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 parte.
3 No appeal shall lie from a decree passed by the Court with the consent of parties.
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 Causes, when the amount or value of the subject-matter of the
original suit does not exceed ten thousand rupees.

WHO MAY APPEAL?

15
Collector of Customs v. East India Commercial Co. Ltd., AIR (1963) SC 1124.
16
Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369 (PC).
Section 96 of the Code recognizes the right of appeal from every decree passed by any court
exercising original jurisdiction. It does not refer to or enumerate the persons who may file an appeal.
But before an appeal can be filed under this section, two conditions must be satisfied:

1 The subject-matter of the appeal must be a ‘decree’, that is, a conclusive

determination of ‘the rights of the parties with regard to all or any of the matters in
controversy in the suit”, and
2 The party appealing must have been adversely affected by such determination.17

The ordinary rule is that only a party to a suit adversely affected by the decree or any of his
representatives-in-interest may file an appeal. But a person who is not a party to a decree or order
may, with the leave of the court, prefer an appeal from such decree or order if he is either bound by
the order or is aggrieved by it or is prejudicially affected by it.18

The test whether a person is an aggrieved person is to see whether he has a genuine grievance because
an order has been made which prejudicially affects his interests either pecuniary or otherwise.19

It was observed in the case of Krishna Chandra Golder v. Mahesh Chandra Sahu, “the question who
may appeal is determinable by the common sense of consideration that there can be no appeal where
there is nothing to appeal about.”

From the above general principles, the following persons are entitled to appeal under this section:

1 Any party to the suit, who is adversely affected by the decree or if such party is dead, his legal
representatives.
2 A person claiming under a party to the suit or a transferee of the interests 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.
3 A guardian ad litem appointed by the court in a suit by or against a minor.20
4 Any other person, with the leave of the court, if he is adversely affected by the decree.21

APPEAL BY ONE PLAINTIFF AGAINST ANOTHER PLAINTIFF

As a general rule, one plaintiff cannot file an appeal against a co-plaintiff. But where the matter in
controversy in the suit forms subject-matter of dispute between plaintiffs inter se, an appeal can be
filed by one plaintiff against another plaintiff.22

APPEAL BY ONE DEFENDANT AGAINST ANOTHER DEFENDANT

The principle which applies to filing of appeal by one plaintiff against another plaintiff
equally applies to an appeal by one defendant against another defendant. It is only where the

17
State of Punjab v. Amar Singh, (1974) 2 SCC 70.
18
Ibid.
19
Adi Pherozshah Gandhi v. H.M. Seervai, AIR 1971 SC 385.
20
S. 147, Order 32 Rule 5.
21
State of Punjab v. Amar Singh, (1974) 2 SCC 70.
22
Nirmala Bala v. Balai Chand, AIR 1965 SC 1874.
dispute is not only between plaintiffs and the defendants but between defendants inter se and
such decision adversely affects one defendant against the other that such appeal would be
competent.23

WHO CANNOT APPEAL?

The right of appeal is lost by following means:
1) By Waiver.

If a party agrees not to appeal or waives his right to appeal, he cannot file an appeal and will
be bound by an agreement if otherwise such agreement is valid. 24 Such an agreement must be
clear and unambiguous. Whether a party has or has not waived his right of appeal depends
upon the facts and circumstances of each case.

2) By Acceptance of Benefits.

Similarly, where a party has accepted the benefits under a decree of the court, he can be
stopped from questioning the legality of the decree.

As Scrutton, L.J. observed, “It startles me that a person can say that judgment is wrong and at
the same time accept the payment under the judgment as being right…. In my opinion, you cannot
take the benefit of a judgment as being good and then appeal against it as being bad.”

3) By Abolition of forum to which Appeal lies.

Finally, the vested right of appeal is destroyed if the court to which an appeal lies is abolished
altogether without any forum being substituted in its place.25

AGREEMENT NOT TO APPEAL

A right of appeal is a statutory right. If a statute does not confer such right, no appeal can be
filed even with the consent or agreement between the parties.
But an agreement between the parties not to file an appeal is valid if it is based on lawful or
legal consideration and if otherwise it is not illegal.26

APPEAL AGAINST EX PARTE DECREE: SECTION 96(2)

23
Ameer Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC).
24
Protap Chunder v. Arathoon, ILR (1882) 8 Cal 455.

25
Daji Saheb v. Shankar Rao, AIR 1956 SC 29.
26
Ameer Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC).
The defendant, against whom an ex parte decree has been passed, has the following remedies
available to him:

1) Apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or
2) Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section
115 where no appeal lies);
3) Apply for review: Order 47 Rule 1; or
4) File a suit on the ground of fraud.

The above remedies are concurrent and they can be prosecuted simultaneously or concurrently.

In an appeal against an ex parte decree, the appellate court is competent to go into the
question of the propriety of the ex parte decree passed by the trial court.

NO APPEAL AGAINST CONSENT DECREE: SECTION 96(3)

Section 96(3) declares that no appeal shall lie against a consent decree. This provision is
based on the broad principle of estoppel. It presupposes that the parties to an action can,
expressly or impliedly, waive or forgo their right of appeal by any lawful agreement or
compromise or even by conduct. The consideration for the agreement involved in a consent
decree is that both the sides give up their right of appeal.27

Once the decree is shown to have been passed with the consent of the parties, Section 96(3)
becomes operative and binds them. It creates an estoppel between the parties as a judgment on
contest.28 Where there is a partial compromise and adjustment of a suit and a decree is passed
in accordance with it, the decree to that extent is a consent decree and is not appealable. This
provision, however, does not apply where the factum of compromise is in dispute or the
compromise decree is challenged on the ground that such compromise had not been arrived
at lawfully.29

NO APPEAL IN PETTY CASES: SECTION 96(4)

It has been inserted by the Amendment Act of 1976. It bars appeals except on points of law in
certain cases. Prior to 1976, Section 96 allowed a first appeal against every decree. Now, this
sub-section bars appeals on facts from decrees passed in petty suits where the amount or value of
the subject-matter of the original suit does not exceed ten thousand rupees, if the suits in which
such decrees are passed are of the nature cognizable by the Courts of Small Causes.

27
Katikara Chintamani Dora v. Guntreddi Annamanaidu, (1974) 1 SCC 567.
28
Thakur Prasad v. Bhagwan Das, AIR 1985 MP 171.
29
Banwari Lal v. Chando Devi, (1993) 1 SCC 581.
The underlying object in enacting the said provision is to reduce appeals in petty cases. Such
restrictions are necessary in the interest of the litigants themselves. They should not be
encouraged to appeal on facts in trivial cases.

APPEAL AGAINST PRELIMINARY DECREE

An appeal lies against a preliminary decree.30 A preliminary decree is as much a final decree.
In fact, a final decree is but machinery for the implementation of a preliminary decree. 40
Failure to appeal against a preliminary decree, hence, preludes the aggrieved party from
challenging the final decree. Where an appeal is filed against a preliminary decree and is
allowed and the decree is set aside, the final decree falls to the ground as ineffective since
there is no preliminary decree to support the final decree.31

NO APPEAL AGAINST FINAL DECREE WHERE NO APPEAL AGAINST PRELIMINARY DECREE

In suits which contemplate the making of two decrees: a preliminary decree and a final decree,
the decree which would be executable would be the final decree. But the finality of a decree
or a decision does not necessarily depend upon it being executable. The legislature in its
wisdom has thought that suits of certain types should be decided in stages and though the suit
in such cases can be regarded as fully and completely decided only after a final decree is
made, the decision of the court arrived at the earlier stage also has a finality attached to it.
Section 97 of CPC reads as follows:

97 Appeal from final decree where no appeal from preliminary decree

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 with may be preferred from the final decree.

It is now clear that where a party aggrieved by a preliminary decree does not appeal from it, it is
precluded from disputing its correctness in any appeal which may be preferred from the final
decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary
decree is regarded as embodying the final decision of the court passing that decree.32

APPEAL AGAINST JUDGMENT AND FINDINGS

30
Phoolchand v. Gopal Lal, AIR 1967 SC 1470.
31
Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992.

32
Kaushalya Devi v. Baijnath Sayal, AIR 1961 SC 790.
The Code provides an appeal from a decree and not from a judgment. An aggrieved party,
however, may file an appeal against the judgment, if a decree is not drawn up by the court.
But no appeal lies in case of a finding recorded by the court in case such appeal does not
amount to a decree or an appealable order.

APPEAL AGAINST DEAD PERSON

No appeal can be instituted against a dead person. In such cases, an application can be made
praying for the substitution of the legal representatives of the deceased respondent who died
prior to the filing of the appeal. In that case, the appeal can be taken to have been filed on the
date of the application for substitution of the legal representatives. If, by that time, the appeal
is time-barred, the appellant can seek condonation of delay.33

LIMITATION
CPC confers a right of appeal, but does not prescribe a period of limitation for filing an
appeal. The limitation Act, 1963, provides the period for filing appeals. It states that an
appeal against a decree or order can be filed in a High Court within 90 days and in any other
court within 30 days from the date of the decree or order appealed against.34

ABATEMENT OF APPEAL
The provision relating to the abatement of suits apply in the same manner to the abatement of
appeals.35

CONCLUSION
The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an
application or petition to appeal higher Court for are consideration of the decision of appeal
lower court. It is appeal proceeding for review to be carried out by appeal higher authority of
appeal decision given by appeal lower one. In appeal is appeal creature of statute and right to
appeal is neither an inherent nor natural right.

33
Bank of Commerce Ltd. v. Protap Chandra Ghose, AIR 1946 FC 13.

34
Art. 116, Limitation Act, 1963.
35
O. 22 R. 11.
In CPC, appeal has been made a substantive right and a person may appeal from original
decrees. Other rights such as that of second appeal and appeal to the Supreme Court have also
been provided for in the Code.

As soon as judgment is pronounced against party, right to appeal arises. Right to appeal
doesn’t arise when adverse decision is given, but on the day suit is instituted i.e. proceedings
commenced, right to appeal get conferred. Thus, it can be said the Right to appeal is appeal
substantive right vested in parties from the date suit instituted.

But this is always a conditional right except for appeal against original decrees. Certain
conditions have to be fulfilled before this right can be exercised.