Appeal is not anywhere defined in the Code of Civil Procedure. But, Its related
provisions under various sections & orders of the CPC. Appeal is application by
a party to an appellate court. Appeal means the judicial examination by a higher
court of the decision of an inferior court.
Appeal in other word means the removal of a cause from an inferior court to
superior court for purpose of testing the soundness of the decision of inferior
According to Black law's Dictionary, the appeal is defined 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".
The rights of appeal under the Civil Procedure Code are not natural or
inherently attached to the litigation but is rendered by the statue or by rules
enforced by the statue. An appeal is a continuation of a suit. The appellate
court possesses the same powers and duties as the original court.
Essentials Of Appeal
There are several essentials which is required by the court before filing an
appeal application before the superior court, from lower court.
The essentials which are required by the court for an appeal are as follows:
- An already made decision by a judicial or administrative authority.
- An aggrieved individual who may not have been a party to the original
proceeding or proceeding in which the decision haas already been by the lower
- A reviewing body was established specifically to handle such appeals in
Who May Appeal Before Superior Court
The right to appeal is only available only to some specific category of
individuals which fall under the category prescribed/ made by the court.
The individuals who can appeal are as follows:
- Any party of the original proceeding or his/her legal representatives which are representing on behalf of original party, in case of dead or deceased person.
- 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.
- No other person, unless he is a party to the suit, is entitled to appeal- Section 96 of CPC.
- An auction-purchaser may appeal from an order in execution setting aside the sale on the ground of fraud.
- Any other person, with the leave of the court, if he is adversely affected.
Who May Not Appeal Before The Court
Right To Appeal
- Any part of the proceeding who is not agreed to appeal or waived off his/her right to appeal.
- If a party accepts the benefits under a decree, he can be estopped from questioning its legality.
- Right of appeal is destroyed when the court to which the appeal lies is abolished without any forum being substituted at its place.
- Parties whose evidence or compromises were not presented or expressed during the dispute.
- Parties involved in trivial instances where the matter is not significant enough to warrant an appeal in CPC.
- An appeal cannot be filed against a dead person. An application can be made for the substitution of legal representative of the deceased.
- Appeal lies against a decree and not judgment but it may prefer that appeal from a judgment if decree has not been drawn up.
The Civil Procedure Code 1908 provides for appeals under Sections 96 to 112
which should be read with the Orders 41 to 45 of the Code. It is a statutory
right because it must be specifically granted by a statute and establish the
appellate machinery. The right to appeal is both statutory and substantive.
there is no right to appeal until a statute offers it explicitly and expressly.
Although an appeal is often a matter of right, it also relies on the decision of
the court to which such an appeal rest. If a specific Act does not give a right
to appeal, it can't be declared ultra vires exclusively on that ground as it is
a substantive right and not just a matter of procedure.
It was held in the case of State Of Punjab And Others v. Bakshish Singh:- " The
appellate court cannot, in the garb of exercising power under Order XLI Rule 33,
enlarge the scope of the appeal. Whether this power would be exercised or not
would depend upon the nature and facts of each case."6
Memorandum Of Appeal
The memorandum of appeal is a document which contains the grounds of appeal. A
memorandum of appeal would support any appeal under these conditions which are
- The grounds for filing an appeal.
- Signature of the appellant or his/her pleader.
- The attachment of the certified copy of the original judgment.
- The remittance of the decretal amount or security (in case of a money decree).
Appeals Under Different Circumstances
- First Appeals [Section 96-99A and Order 41]
- Second Appeals [Section 100-103, 107-108 and Order 43]
- Orders from which appeal lies [Section 104]
- Powers of Appellate Courts [Section 107]
- Appeal to the Supreme Court [Section 109, 112 and Order 45]
Section 96(1) provides that an aggrieved party can file an appeal
to a superior court against a decision of a subordinate court either on a
question of fact or a question of law or a question involving a mix of both fact
and law. Section 96(2) outlines remedies available to a defendant against whom
an ex parte order is passed. They can either file an appeal under CPC against
the decree or file a motion to set aside the ex parte decree. These remedies can
be pursued concurrently and do not hinder each other.
Section 96(3) specifies that a consent decree cannot be appealed against. This
provision is based on the principle of estoppel, assuming that parties to a suit
may, through a lawful agreement, settlement, or behavior, relinquish their right
to appeal. In a consent decree, both parties have willingly given up their right
to appeal in CPC as part of the agreement. Also, no appeal shall lies in petty
Section 97 provides that an appeal must lie usually against a Preliminary Decree
i.e. one cannot challenge a final decree if they do not challenge a preliminary
decree (on which the final decree in a suit is based).
Second appeals is an appeal which arises out of appellate
decrees. Section 100 of the Civil Procedure Code provides that an appeal can be
moved to the High Court from every decree passed in appeal by any subordinate
Court if the High Court finds that the case includes a substantial question of
law. Taking this into context, the memorandum of appeal must clearly state the
substantial question of law in this appeal. If the High Court deems it to be
satisfactory, it may go on to formulate the pertinent questions, based on which
the appeal would be heard.
Also, the High Court may hear the appeal on any other
substantial question of law not formulated by it if it feels that the case
involves such question. It may be noted that a second appeal is only meant for
questions of law and hence cannot be made on the grounds of an erroneous finding
of fact. On the same page, in the absence of any errors or defects in the
procedure, the finding of the first appellate court will be considered as final,
if the particular Court produces evidence to support its findings.
However, The Court permits the respondent (opposite party) to argue at the
hearing of the appeal that the question formulated by the court as a substantial
question of law does not involve such question. The Law Commission in its Fifty
fourth Report reviewed the position and recommended that the right of second
appeal should be confined to cases where substantial question of law is
The appropriate test to decide if the question of law challenged in
the case is substantial would be if it is of general public interest or if it
concerns the interests of the parties explicitly and significantly and, if not,
if it is still an open question in the sense that it is not ultimately decided
by that court or by the Privy Council or by the Federal Court.
Thus, it should
be argued that where a question is legitimately arguable, or where there is
space for a contrary interpretation, or where an alternate view is similarly
probable, or where it is not finally resolved, or where there is no uncertainty,
the question can be said to be a 'substantial question of law.'
In one of the important case Santosh Hazari v. Purushottam Tiwari
"the Court reiterated the statement of law that the High Court cannot proceed to
hear a second appeal without formulating the substantial question of law."
Also in the case of K. Raj v. Muthamma
, it was contended by the court that " A
statement of law has been reiterated regarding the scope and interference of the
Court in second appeal under section 100 of the code of Civil Procedure."
Appeals From Orders:
- An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-
[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]
- (g) an order under section 95;
- (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;
- (i) any order made under rules from which an appeal is expressly allowed by rules;
- No appeal shall lie from any order passed in appeal under this section.
The Hon'ble Kerala High Court held in case of Cherian Lookose v. Narayana Pillai
Gopala :- "On a closer examination of Section 104 of the Code, it should be held
that the objection is not sustainable. Clause 1 of Section 104 of CPC provides
for a right of appeal where such a right is expressly allowed by the rules of
Civil Procedure. Order 43 Rule 1 Clause (r) provides for the right of appeal
from the orders passed under Rule 1 of Order 39."
Also in case of Shri
Radhey Shyam v. Shyam Behari Singh
,The Hon'ble Supreme Court held that "Section
104 of CPC recognises appeals provided under the special statutes. It does not
bar any further appeal if the same is provided for under any other Act and
appeal will lie in view of clause 15 of the Letters Patent in the absence of any
POWERS OF APPELLATE COURTS:
It is provided in the section 107&108 of the Code of Civil Procedure,
Powers of Appellate Court:
Section 108: Procedure in appeals from appellate decrees and orders
- Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power�
- to determine a case finally;
- to remand a case;
- to frame issues and refer them for trial;
- to take additional evidence or to require such evidence to be taken.
- 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.
The provisions of this Part relating to appeals from original decrees shall, so
far as may be, apply to appeals:
Section 107 read with Order XLI Rule 31 provides the contents of a judgment
delivered by the appellate court which are:
- from appellate decrees, and
- from orders made under this Code or under any special or local law in
which a different procedure is not provided.
Appeals To The Supreme Court:
- The judgment should contain the points of determination;
- The judgment must include the decision made by the court;
- The judgment must carry the reason behind the decision made by the court;
- The judgment must consist of the relief provided to the appellant if the decree that was appealed has been reversed in the favor of the appellant.
Appeals to India's highest jurisdictional body,
the Supreme Court, can be made under two circumstances. Firstly, when the lower
Court considers the case appropriate for an appeal to the Supreme Court, and
secondly, when the Supreme Court grants special leave for the appeal Civil
Procedure Code. A petition must be submitted to the Court that issued the decree
to file an appeal under CPC.
The petition will be heard and disposed of within
sixty days. It should state the grounds of appeal and include a request for a
certificate declaring that the case involves a substantial question of law that
requires the Supreme Court's decision.
The opposite party will have an opportunity to raise objections to the issuance
of such a certificate. The petition will be disposed of if the certificate is
denied. If the certificate is granted, the appellant must deposit the required
security and costs within a specified period. After fulfilling these
obligations, the Court from whose decision the appeal in CPC is made will
declare the appeal as admitted and notify the respondent accordingly.
jurisdictional body will then provide a sealed copy of the record and furnish
copies of the relevant papers in the suit. Further, Section 112 states that
the Civil Procedure Code's provisions shall not affect the power of the Supreme
Court under Article 136 of the Constitution or interfere with rules of Appeals
formulated by the Supreme Court.
Appeals By Indigent Person
If a person is unable to pay the required fee for filing a memorandum of appeal
Civil Procedure Code, they have the option to file an appeal as an indigent
person. However, the Court has the discretion to reject such an application and
may direct the applicant to pay the necessary court fee within a specified time.
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
Appeal By One Plaintiff/Defendant To Other Plaintiff/Defendant
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
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).
Distinction Between Appeal And Revision
- An appeal lies to a Superior Court from every original decree whereas, revision to High Court is available only in those cases and against such orders where no appeal lies.
- An application for appeal is maintainable on legal grants and question of fact as well whereas, application for revision is maintainable on the ground of jurisdictional error.
- A Court of appeal can, in the exercise of its powers, set aside the findings of facts of subordinate Courts, But in case of revision, High Court or the revisional Court cannot, in the exercise of its revisional powers, set aside the findings of facts of subordinate Courts.
- A right of appeal is one of substantive nature conferred by the statute but, there is no such right of revision because revisional power is purely discretionary.
- Appeal is exercisable through a memorandum of appeal filed by the aggrieved party. Revision can be exercised suo motu by the revisional court.
An appeal is a substantive right and not really a procedural one. Also, there
can be an appeal only if the statute allows for it. However, if an Act/Code does
not provide for a mechanism of appeal, it cannot be declared ultra-vires or
unconstitutional on that ground. Appeal person aggrieved by appeal decree is not
entitled as or right to appeal from decree. The right to appeal must be given by
Section 9 confers on appeal litigant, independently of any statute,
appeal right to institute appeal suit of civil nature in appeal court of law. So
he has appeal right to apply for execution of appeal decree passed in his favor,
but he has no right to appeal from appeal decree or order made against him,
unless the right is clearly conferred by statute.
Section 96 of the Code gives appeal right to litigant to appeal from an original
decree. Section 100 gives him appeal right to appeal from an appellate decree in
certain cases. Section 109 gives him right to appeal to the Supreme Court in
certain cases. Section 104 gives him right to appeal from orders as
distinguished from decrees.an appeal is often a matter of right, it also relies
on the decision of the court to which such an appeal rest.
If a specific Act
does not give a right to appeal, it can't be declared ultra vires exclusively on
that ground as it is a substantive right and not just a matter of procedure.
Right to appeal is conferred under the Code of Civil Procedure, although it does
not prescribe a limitation time for filing an appeal.
The process of appeals in the legal system plays a crucial role in ensuring
justice and fairness. Understanding the various provisions and powers involved
in filing appeals can be instrumental in achieving favorable outcomes for
parties dissatisfied with trial court decisions. From first appeals to second
appeals and the option for indigent persons to file appeals, the legal framework
aims to address grievances effectively.
Additionally, the avenues for appeals to
the Supreme Court provide a vital recourse for cases deemed appropriate for
further review. Overall, a comprehensive grasp of the appeal process empowers
individuals to navigate the legal system with confidence, seeking redress for
- First appeals under the Code of Civil Procedure, 1908
- Appeal by Ms Niharika
- Appeal under CPC
- All about Appeals under the Code of Civil Procedure
- 1999 AIR SC 2626
- Appeals under CPC-Essentials, procedure, rules, and cases
- All about Appeals under the Code of Civil Procedure
- 2001 3 SCC 179
- 2001 6 SCC 279
- Section 104. Orders from which appeal lies.