An appeal is a crucial mechanism in civil litigation, ensuring the proper
administration of justice. It allows parties dissatisfied with a lower court's
decree or order to seek redress and review by a higher judicial authority. This
right to appeal which is not a fundamental right but creation of statutes was
elaborated in the case of Anant Mills vs. State of Gujarat
. The Civil Procedure
Code 1908, which varies across jurisdictions, contains specific provisions
outlining the procedural aspects of appealing a decree or order.
provisions outline the conditions, timelines, and requirements for an appeal to
be admissible, as well as the form and content of the appeal, the parties
involved, the jurisdiction of the appellate court, and the scope of review.
Decrees determine substantive rights and liabilities, while orders address
procedural matters or interim relief.
Both types serve distinct purposes in ensuring justice is served and allowing
parties to present their grievances before a higher judicial forum. A
comprehensive understanding of the provisions governing appeals from decrees and
orders within the applicable Civil Procedure Code is essential for litigants,
legal practitioners, and judicial authorities to effectively exercise their
right to seek appellate review, present compelling arguments, and navigate the
complexities of the appellate process.
What is Appeal, Decree and Order
An appeal refers to a legal proceeding by which a case is brought before a
higher court for review of the decision of a lower court . In simple words
'appeal' is a procedure where either of the party in a civil litigation when not
satisfied with the decision passed by the competent court can take it's
grievance to higher court in line.
In this article we are going to focus on appeal from decree and order, but
before this we must understand what the terms 'decree' and 'order' mean.
A decree is the formal expression of an adjudication of dispute by the civil
court that conclusively determines the rights of parties with regard to all or
any matters in controversy in the civil suit . In simple words it refers to a
legal document passed by the competent court which clarifies the rights and
liabilities of both the parties to the case, and this legal document is passed
after the judgment is being passed from the respective court.
An Order is a formal expression of any decision of a Civil Court which is not a
decree. In simple words it refers to the procedural liabilities of the parties
to the case during the proceeding. Orders are of two kinds, appealable orders
and non-appealable orders and in this article we are concerned about appealable
The main difference between decree and order is that decree is always passed at
the end of the case whereas an order can be passed anytime during the
Appeal from decree:
Appeal from decree is a procedure where, if either of the party to the civil
suit is not satisfied with the decree passed by the court they can take their
grievance to a higher court. Appeal from decree is of two types i.e. Appeal from
original decree which is covered under order 41 and under section 96-99A of the
Code of Civil Procedure, 1908 and appeal from appellate decree which is covered
under section 100-103 and order 42 of the Code of Civil Procedure, 1908.
Appeal from original decree :- These appeals are made from the decrees which are
passed by the court who is having an original jurisdiction over the matter. It
is covered under section 96 to 99A and order 41 of the Code of Civil Procedure,
- Decree passed by original jurisdiction court can be appealed
- Decree of ex-parte passed by the original jurisdiction court.
- No appeal when the decree is passed by the consent of both the parties.
- No appeal when the decree is passed by the small causes court and the value of the civil suit is not more than Rs. 10,000.
- But if in the above situation any question of law is involved, then it can be appealed.
When either of the party aggrieved by the preliminary decree
passed by the competent court does not go for appeal against the preliminary
decree then they cannot appeal against the same decree through final decree
passed by the same court.
- When there is two or more judges bench, then the decision must be of majority.
- When there is even no. of Judges, then the appeal shall be heard on a point of law which differs from among the judges and should be decided by the majority.
- Letter patents related to the provisions of the High Court will not be affected by section 98.
- A decree will not be reversed, substantially varied, or remanded:
- When there is misjoinder or non-joinder of parties or of cause of affection.
- Or when any error/defect/irregularity or any error/defect/irregularity within the jurisdiction of the Court does not affect the merits (decision) of the case.
- When there is non-joinder of necessary parties, then the decree can be reversed, substantially varied, or remanded.
The section "Section 99" is outside of the main unordered list and is also displayed as a list using another element to separate it from the previous points.
If the decision of the court is affected by the order passed
under section 47 CPC on account of any error,/defect/irregularity, then the
decision of the court can be reversed, varied and vice versa.
Order 41: Procedure regarding 1st Appeal
- Every appeal shall be presented in the memorandum of appeal form.
- It should be in writing.
- Copies of the judgement in Decree must be attached.
- It should be signed by the party and its council.
- There is no right to a party to be heard on any matter which is not presented in the Memorandum of appeal.
- Memorandum of Appeal can be returned for corrections or even be rejected.
- Appeal is time-barred; therefore, a condonation of delay application is attached with the memorandum of appeal when the limitation period for the appeal is over.
- The corrected appeal received will be filed in the register of appeal.
- When there is a summary dismissal, no notice will be sent to the opposite party. If it is not summarily dismissed, then a notice will be sent to the opposite party, and a date will be fixed for hearing.
- On the date fixed for hearing, the court may reject the appeal if not satisfied. If not rejected, then the opposite party shall be heard, and the applicant can reply for the same.
- If the applicant is not present on the hearing date, then the appeal shall be dismissed for default. If the opposite party is not present, then the appeal shall be heard ex-parte.
- When the appeal is dismissed, a restoration application must be filed for its revival, and in ex-parte situations, a recall application must be filed for rehearing when the court is satisfied.
- There can be a remand where the original decree passed on a preliminary point is reversed in an appeal or re-trial is necessary when the original decree is reversed.
- Appellate court can finally decide an appeal if it has sufficient evidence on record.
- As per rule 27, the appellate court can take additional evidence:
- Lower court rejected admissible evidence, saying it is inadmissible.
- Evidence which was not in knowledge or cannot be procured during the trial.
- Evidence which is necessary according to the appellate court.
- Appellate court must specify in its judgment:
- Points of determination.
- Decision of the court.
- Reason for such decision.
- Relief claimed by the appellant and relief he is entitled to.
- This judgment must be signed after the pronouncement.
- Decree will be passed after the passing of the judgment.
- Certified copies of such decree and judgment must be given to both the parties to the suit. Also, it is given to the lower court.
Appeal from Appellate Decree:
These appeals are made from the decrees which
have been already appealed from the court of original jurisdiction to a higher
court and now is re-appealed from that higher court. It is covered under section
100 to 103 and order 42 of the Code of Civil Procedure, 1908.
Substantial question of law refers to those questions which directly affects the rights of the parties. The case of Chunnilal V Mehta vs. Country spinning & Manufacturing Co.
- The High courts have the exclusive jurisdiction over these matters.
- Second appeal shall lie to the High Court from every degree passed in appeal by any subordinate court or any appellate decree passed ex-parte.
- There must be substantial question of law for 2nd appeal and it must be precisely stated in the memorandum of appeal.
- If High court is satisfied that there is a substantial question of law, then formulation of such question must be there and 2nd appeal must be heard on such questions, also the respondent to the case have the right to deny such questions.
- The formulation of such questions is on the discretion of the court, whether they want to formulate it or wants to proceed without such formulation.
No 2nd appeal shall lie except on the grounds mentioned in Section 100 of Code of Civil Procedure, 1908.
- Valuation of original suit must be Rs.25,000 or more, otherwise suit cannot be appealed.
- Limitation period of such appeal is 90 days from the date of decree passed by Lower court.
- Exception to section 100 of Code of Civil Procedure, 1908.
- High Court may determine issue of fact in an 2nd appeal when there is sufficient evidence for the same and the lower court has failed to determine such issue of fact or wrongfully determine the same.
- Rules of order 41 shall apply to 2nd Appeal.
- Before dismissing a second appeal, summarily the high court shall formulate a substantial question of law, an appeal will be heard on such substantial question of law, and no other grounds will be entertained.
- Rule 14(4) of order 41 will also be applicable here along with suitable adjustments.
Appeal from Order:
Appeal from order is a procedure where, if either of the party to the civil suit
is not satisfied with the order passed by the court they can take their
grievance to a higher court. Appeal from order is covered under order 43 and
under section 104-106 of the Code of Civil Procedure, 1908.
- Orders which can be appealed
- Order passed under CPC or any other law having provisions for such appeals can be appealed.
- Compensatory costs in respect of false or vexatious claims or defense under section 35A of CPC can be appealed.
- Refusal for instituting a suit referred under section 91 CPC (Public Nuisance) and under section 92 CPC (Public Charity) can be appealed.
- When a party suffers from arrest, attachment or injunction on insufficient grounds and court orders the other party to pay compensation for the same under section 95 CPC. The other party can appeal such order.
- An order under this code imposing a fine, or directing the arrest or detention in civil prison of any person can be appealed but if such arrest or detention is in execution of decree, no appeal is allowed.
- Appeal of order can be made, but appeal for the reduction of the amount payable by the party as compensation cannot be made.
- Further, no appeal shall lie from the order already passed but not appealed.
- Any order made by the court under its original or appellate jurisdiction cannot be appealed.
- But if the order is appealed from any error, defect, or irregularity in any order affecting a person's decision, then there can be an appeal for such orders.
- When a remand order is given and it is not appealed at that particular time, then it cannot be appealed later when any other order is made from such remand.
Section 106: This section talks about which court can hear such appeal. The
court system/ hierarchy followed in appeal from decree will be followed here.
- An order under rule 10 of Order VII, returning a plaint to be presented before the correct court (except when the procedure specified in rule 10A of Order VII is followed).
- An order under rule 9 of Order IX, rejecting an application (in a case open to appeal) to set aside the dismissal of a suit.
- An order under rule 13 of Order IX, rejecting an application (in a case open to appeal) to set aside a decree passed ex-parte.
- An order under rule 21 of Order XI.
- An order under rule 34 of Order XXI, addressing objections to the draft of a document or endorsement.
- An order under rule 72 or rule 92 of Order XXI, either setting aside or refusing to set aside a sale.
- An order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided the order on the original application (referred to in sub-rule 1 of rule 105 of that Order) is appealable.
- An order under rule 9 of Order XXII, refusing to set aside the abatement or dismissal of a suit.
- An order under rule 10 of Order XXII, granting or denying leave.
- An order under rule 2 of Order XXV, rejecting an application (in a case open to appeal) to set aside the dismissal of a suit.
- An order under rule 5 or rule 7 of Order XXXIII, rejecting an application for permission to sue as an indigent person.
- Orders in interpleader-suits under rule 4 or rule 6 of Order XXXV.
- An order under rule 2, rule 3, or rule 6 of Order XXXVIII.
- An order under rule 1, rule 2 [rule 2A], rule 4, or rule 10 of Order XXXIX.
- An order under rule 1 or rule 4 of Order XL.
- An order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal.
- An order under rule 23 [or rule 23A] of Order XLI, remanding a case where an appeal would lie from the decree of the Appellate Court.
- An order under rule 4 of Order XLVII, granting an application for review.
As from the above discussion it is clear that appeal from decree is a procedure
where the decree passed by a competent court is challenged in the higher court
in hierarchy under section 96-103 CPC and the procedure for such challenge is
prescribed under order 41 and 42 for appeal from original and appellate decree
respectively, whereas appeal from order is a procedure where the order passed by
the competent court is challenged in a higher court in the same manner as decree
is challenged which is covered under section 104-106 and order 43 of the CPC.
- Section 2(2), Code of Civil Procedure 1908
- Section 2(14), Code of Civil Procedure 1908