The expression 'appeal
' has not been defined in the Code, but it may be defined
as "the judicial examination of the decision by a higher Court of the decision
of an inferior Court". It means removal of a cause from an inferior Court to a
superior Court for the purpose of testing the soundness of the decision of the
The remedy of appeal is a creation of statute and is not an inherent right of
person. There is no right to appeal unless it is given clearly and in express
term by a statute. The right to appeal is substantive right and not merely a
matter of procedure. 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 actually
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 its decision or at the date of
the filing of the appeal. This vested right of appeal can be taken away only by
a subsequent enactment, if it so provides expressly or by necessary intendment
and not otherwise.
In Hero Vinoth (Minor) v. Sheshammal Mahadevan
, the Supreme Court held that
it must be kept in mind that right of appeal is neither a natural right nor an
inherent right attached to the litigation. Being a substantive statutory right,
it has to be regulated in accordance with the law in force at the relevant time.
An appeal is a continuation of suit. A decree passed by an appellate Court
would be construed to be the decree passed by the Court of the first instance.
The appellate court possess same powers and duties as the original Court. In
Dayawati v. Inderjit,
, 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 proceedings in a cause
constituted but does not create the cause." Sections 96 to 99 and 107 read with
Order 41 deal with first appeals that is appeal from original decree.
Essential Ingredients: There are three essential elements viz., a judgment of a
court, a party aggrieved by such judgment and an appellate court which is
competent to entertain and hear the appeal.
Who May File an Appeal: The ordinary rule is that only a party to a suit
adversely affected by the decree or any of his representative-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. Thus, following persons are entitled to appeal:
- A party to the suit who is aggrieved or adversely affected by the
judgment and decree passed by court in such suit,
- Legal representative of the aggrieved party, if such party is dead;
- Guardian of minor appointed by court, in case of suit by or against the
- A person who is not party to decree or order but is bound by or
aggrieved by it or is prejudicially affected by it. However, leave of court
shall be necessary.
Who Cannot Appeal: If a party agrees not to appeal or waives his right to
appeal, he cannot file an appeal and will be bound by the agreement if otherwise
such agreement is valid. However, such 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.
Similarly, where a party has accepted the
benefits under decree of the court, he can be estopped from questioning the
legality of the decree. Finally, the vested right of appeal is destroyed if the
court to which an appeal lies is abolishes altogether without any forum being
substituted in its place.
Appeal From Original Decree (Section 96)
Section 96 of the Code recognizes the right of appeal from the decree passed by
the court exercising original jurisdiction but under following conditions:
- The subject-matter of the appeal must be a "decree", that is, a
conclusively determination of 'the rights of the parties with regard to all
or any of the matters in controversy in the suit" and
- The party appealing must have been adversely affected by such
Section 96(2) provides that in an appeal against an ex parte decree the
appellant can only be heard on the merits of the case. The appellate court
cannot go into the question as to why the appellant had not appeared on the date
of final hearing before the trial court.
Section 96(3) declares that no appeal shall lie against a consent decree. The
rule is based on the principle that a person who gives his consent to a decree
being passed against him, is later on estopped from challenging the same on
ground that the consent to such decree was not free and was obtained by fraud,
misrepresentation, coercion, undue influence, etc.
Section 96(4) has been inserted by the Amendment Act of 1999. It provides that
no appeal shall lie from the decrees passed in petty suits cognizable by Small
Cause Court, when the amount or value of the subject-matter of the original suit
does not exceed ten thousand rupees.
In Union of India v. K.V. Lakshman
, it was held that in appeal from original
decree (first appeal), the litigant has right to be heard on facts and law,
which is his valuable right. The first appeal should not be disposed of in limine. The appellant court must, on proper application of mind on all issues
and contentions put forth on question of fact and law and re-appreciation of
entire evidence, arrive at its own independent decision.
In Zair Hussain Khan v. Khurshed Jan
, Allahabad High Court held that, "unless
a right of appeal is clearly given by statute, it does not exist, whereas a
litigant has independently of any statute a right to institute any suit of civil
nature in some court of another" provided its cognizance is not barred expressly
or impliedly under Section 9 of the Code.
Appeal From Final Decree Where No Appeal From Preliminary Decree (Section 97)
According to section 97, a failure to appeal against a preliminary decree
precludes the aggrieved party from disputing its correctness or raising any
objection to it in the appeal against the final decree. The object of enacting
this section is to make it clear that any party being aggrieved by a preliminary
decree must appeal against that decree, and if he fails to appeal against such a
decree, the correctness of such a decree cannot be challenged by way of an
appeal against the final decree, which means that the preliminary decree would
be taken to have been correctly passed.
Decision Where Appeal Heard By Two Or More Judges (Section 98)
Section 98 provides that where appeal is heard by two or more judges, it must be
decided in accordance to consensus of opinion or by majority. However, where
there is difference of opinion on a point of law between two judges, they may
state the point of law upon which they differ for decision by a third or more of
the other judges and such point shall be decided according to the opinion of the
majority of the Judges who have heard the appeal, including those who first
No Decree To Be Reversed Or Modified For Error Or Irregularity Not Affecting Merits Or Jurisdiction (Section 99)
Section 99 provides that no case shall be remanded in appeal and no decree shall
be reversed or varied on account of:
- Any misjoinder of parties;
- Any non-joinder of parties, except non-joinder of necessary party
- Causes of action
- Any error, defect, or irregularity in any proceedings in the suit, which does not affect the merits of the case or the jurisdiction of the court.
No Order Under Section 47 To Be Reversed Or Modified Unless Decision Of The Case Is Prejudicially Affected (Section 99a)
Section 99-A provides that no order under Section 47 shall be reversed or varied
on account of any error, defect or irregularity in any proceeding unless it has
prejudicially affected the decision of the case.
Form Of Appeal (Order XLI, Rules 1-4)
Section 96 to 99-A enact the substantive law in respect of First Appeals, while
Order 41 lays down the procedure relating thereto. The expressions appeal and
memorandum of appeal denote two distinct things that is appeal is the judicial
examination by a higher court of the decision of an inferior court while the
memorandum of appeal contains the grounds on which the judicial examination is
invited. It is necessary to file memorandum of appeal for purposes of limitation
and rules of the Court.
Rule 1 of Order XLI provides requirement which is necessary for valid
presentation of appeal, mentioned as follows:
- It must be in the form of a memorandum setting forth the grounds of objections to the decree appealed from;
- It must be signed by the appellant or his pleader;
- It must be presented to the Court or to such officer as it appoints in that behalf;
- The memorandum must be accompanied by a certified copy of the decree;
- It must be accompanied by a certified copy of the judgment unless the Court dispenses with it; and
- Where the appeal is against a money decree, the appellant must deposit the decretal amount of furnish the security in respect thereof as per the decision of the Court.
In Times Global Broadcasting Co. Ltd. v. Parshuram Babaram Sawant
judgment-debtor had challenged in appeal a money decree directing payment of Rs
100 crores and had prayed for complete stay thereof. Supreme Court held that the
discretion was validly exercised by High Court by not entertaining petitioner
prayer for complete stay of decree and instead directing petitioners to deposit
Rs 20 crores and furnish bank guarantee for balance decretal amount of Rs 80
crores. The exercise of discretion is in consonance with settled principles.
Rule 2 prevent appellant from being heard in support of any ground of objection
not set forth in the memorandum of appeal, except with the leave of the Court.
However, the appellate court is entitled to decide an appeal even on a ground
not set forth in memorandum of appeal.
In Wada Arun Asbestos (P) Ltd. v. Gujarat water Supply and Sewerage Board
the Apex Court held that where a decree is appealed from, any error, defect or
irregularity in any order affecting decision of case may be set forth as a
ground of objection in memorandum of appeal.
Rule 3 prescribe that a memorandum of appeal must be prepared after considering
the pleadings, the issues, the judgment and the decree. In case the memorandum
of appeal is not in a proper manner, the court may reject it or return it to the
appellant to amend within time provided by the Court.
In State of Maharashtra v. Hindustan Construction Company Ltd
., the Supreme
Court held that the appellant court has power to grant leave to amend the
memorandum of appeal.
Rule 4 provides that when a decree includes common ground for all the plaintiffs
or defendants, any one of them may appeal from the whole decree, and thereupon
the appellate court can reverse or vary the decree in favor of all the
plaintiffs or the defendants, as the case may be.
The object of this rule is
to enable one of the parties to a suit to obtain relief in appeal when the
decree appealed from proceeds on a ground common to him and others. The court in
such an appeal may reverse or vary the decree in favor of all the parties who
are in the same interest as the appellant.
STAY OF PROCEEDINGS AND EXECUTION (Order XLI, Rules 5-8)
Rule 5 provides that after an appeal has been filed, the appellate court may
order stay of proceeding or the execution of such decree. But mere filing of an
appeal does not suspend the operation of a decree, stay may be granted if
sufficient grounds are established. The object is to safeguard the interests of
both, the decree-holder and the judgment-debtor. According to Rule 5(2), an
order for stay of execution of a decree shall be made if the court is satisfied
- The application has been made without reasonable delay
- Substantial loss will result to the applicant unless such order is made
- Security for the due performance of the decree or order has been given by the applicant
According to Rule 6, where an order has been made for the execution of a decree
from which an appeal is pending, the court which passed the decree shall, on
sufficient cause being shown by the appellant, take security from the
decree-holder for the restitution of any property which may be or has been taken
in execution and for due performance of the decree or order of the appellant
court. If such an application is made to the appellate court, it may direct the
trial court to take such security.
SUMMARY DISMISSAL OF APPEAL (Order XLI, Rules 11 and 11-A)
Rule 11 provides that the appellate court after fixing a day for hearing the
appellant or his pleader may dismiss appeal if:
- The appellant does not appear on the day fixed for hearing
- The appellant appears on the day fixed for hearing and after hearing
him, the court prima facie finds no substance in the appeal.
Where the appeal has been dismissed by the appellate court, it shall record the
reasons thereof. But, if the appellate court is High Court, no recording of
reasons shall be necessary except in case of matters involving construction of
documents. The appellate court dismissing the appeal shall notify such dismissal
to the Court from whose decree the appeal is preferred. According to Rule 11-A,
hearing must be concluded within sixty days from the date on which memorandum of
appeal is filed.
HEARING OF APPEAL (Order XLI, Rules 12 to 15)
Rule 12, If the appeal is not summarily dismissed, the appellate court shall fix
a day for hearing of the appeal. A notice thereof shall be:
- Affixed in the appellate court-house; and
- Sent by the appellate court to the court from whose decree the
appeal is preferred and shall be served on the respondent along with a
copy of the memorandum of appeal.
The notice shall be served upon the respondent in the manner provided for
service of summons on a defendant to appear and answer. All the provisions
applicable to such summons and to proceedings with reference to the service
thereof, shall apply to the service of such notice. (Rule 14)
In Daropti v. Harphool Singh
, the Supreme Court observed that the High Court
without giving opportunity of hearing to either of the parties, had reversed the
judgment and order penned by trial court which had decreed partition suit in
favor of appellant-plaintiffs. It was held that opportunity of hearing ought to
have been granted to counsel appearing for appellant-plaintiffs to present their
PROCEDURE AT HEARING (ORDER XLI, Rules 16-21)
According to Rule 16, the appellant has right to begin. On the day fixed for
hearing, the appellant shall be heard first in support of his appeal. After
hearing the appellant, if the court finds no substance in the appeal, it may
dismiss it at once without calling upon the respondent to reply. But if the
appeal is not so dismissed then the court shall hear the respondent against the
appeal and the appellant shall be entitled to reply.
Rule 17 provides that if the appellant does not appear on the day fixed for
hearing, the court may dismiss the appeal. Such dismissal is known as "dismissal
in default". However, court does not dismiss it on merits.
In Sukhpal Singh v. Kalyan Singh
, the Supreme Court held that when the
appellant does not address any argument, the Court is not bound to go through
the materials and judgments and decide the case on the merits and that it was
competent to dismiss the appeal for default.
In Ashwathamma v. Lakshmamma
, following and reiterating Ghanshyam Dass Gupta
, it was held that the explanation to sub-rule (1) of Rule 17 of Order XLI
CPC added by Act 104 of 1976, makes it clear that nothing in sub-rule (1) of
Rule 17 of Order XLI CPC should be construed as empowering appellate court to
dismiss appeal on merits where appellant remained absent on left unrepresented
on date for hearing.
The explanation was added because it gives an opportunity
to the appellant to convince appellant court that there was sufficient cause for
non-appearance. Such an opportunity is lost, if courts decide appeal on merits
in absence of counsel for appellant. The judgment and decree passed by High
Court was therefore set aside and matter was remitted to High Court for final
Rule 19 provides that if appeal is dismissed in default or for non-payment of
process fees, the appellant may apply to the appellate court for the restoration
or re-admission of appeal. If it is proved that the appellant was prevented by
any sufficient cause from appearing, the court shall restore and re-admit the
appeal on payment of costs.
In State of Maharashtra v. Super Max International Pvt. Ltd
., it was held
that in an appeal or revision, stay of execution of decree passed by court below
cannot be asked for as of right. While admitting appeal or revision, it is open
to court to decline to grant stay subject to some reasonable condition.
Rule 20 provides where it appears to the appellate court that any person who was
a party to the suit in the trial court but who has not been made a party to the
appeal is interested in the result of appeal, the court may direct to add any
person as a respondent. However, no respondent shall be added after the expiry
of the period of limitation for appeal, unless the reasons are recorder for
The object of Rule 20 is to protect parties to the suit who have not
been made respondents in the appeal from being prejudiced by modifications being
made behind their back in the decree under appeal. Under Rule 20, the appellate
court has inherent power to add a party respondent or to transpose a party from
one category to another.
According to Rule 21, If the appellant appears and the respondent does not
appear on the date of hearing, the appeal shall be heard ex parte. where an
appeal is heard ex parte and judgment is pronounced against the respondent, he
may apply to the appellate court to re-hear the appeal.
In such case the
respondent shall have to satisfy the court that the notice of appeal was not
duly served upon him or that he was prevented by sufficient cause from appearing
when the appeal was called on for hearing, the court shall rehear the appeal on
such terms as to costs or otherwise as it thinks fit. However, ordinarily no ex parte decree should be passed by a court except on reliable evidence.
CROSS-OBJECTION (Order XLI, Rule 22)
Rule 22 contemplates right to file cross objection. Cross objections are filed
by the respondent against the appellant in an appeal filed by the appellant
against the respondent. This rule permits the respondent who has not filed
appeal against the decree to object to the said decree by filing cross objection
in the appeal filed by the opposite party within one month from date of service
on him or his pleader of notice of day fixed for hearing the appeal or within
further time as appellate court allow. The cross objection shall be in the form
of memorandum of appeal.
In Hardevinder Singh v. Paramjit Singh
, it was held that a respondent may
defend himself without taking recourse to file a cross-objection to the extent
the decree stands in his favour, but if he intends to assail any part of the
decree, it is obligatory on his part to file the cross-objection. Filing of
cross-objection against adverse finding recorded in judgment or decree is
permissible after amendment of Order XLI, Rule 22 vide Act 104 of 1976.
Withdrawal of appeal or dismissal thereof for default would not affect
adjudication of said cross-objection on merits.
In S. Nazeer Ahmed v. State Bank of Mysore
, it was held that for supporting
the decree by trial court, it is not necessary for respondent in appeal to file
a memorandum of cross-objections challenging a particular finding by trial court
against him when the ultimate decree itself is in his favor. The memorandum of
cross-objections is needed only if respondent claims any relief, negativated to
him by trial court and in addition to what he has already been given by decree
REMAND A CASE (Order XLI, Rules 23 and 23-A)
Power of Appellate Court: Section 107 provides that the Appellate Court shall
have same powers as are conferred on courts of Original Jurisdiction in respect
of suits instituted therein. Sub-section (1) empowers Appellate Court to:
- Determine a case finally
- Remand a case
- Frame issues and refer them for trial
- Take additional evidence or to require such evidence to be taken
Remand means to send back. Rule 23 enacts that where the trial court has decided
the suit on a preliminary point without recording findings on other issues and
the appellate court reverses the decree so passed, appellate court may remand
the case to trial court to decide the other issue and determine the suit.
Rule 23-A, inserted by the Amendment Act, 1976 enables the appellate court to
remand a case where the lower court has decided it on merits but the appellate
court considers such remand in the interest of justice. An appellate court
should be circumspect in ordering a remand when the case is not covered either
by Rule 23 or Rule 23-A or Rule 25 of CPC.
In Syeda Rahimunnisa v. Malan Bi
, it was held that in absence of any
pleadings for remand before High Court or first appellate court, matter cannot
be remanded to lower court. Where parties to appeal never complained at any
stages of proceedings that trial of suit was unsatisfactory resulting in
prejudice, under such circumstances remand cannot be made.
FINAL DETERMINATION OF A CASE (Order XLI, Rule 24)
Rule 24 enables the appellate court to dispose of a case finally. If the
evidence upon the record is sufficient to enable the Appellate Court to
pronounce judgment, the Appellate Court may resettle the issues and proceed to
determine the suit finally. The Appellate Court may proceed on grounds different
from those on which the trial court proceeded.
The appellate Court has the power
to answer the issue on the basis of materials on record. Where suit is
pending for a long time, the decree can be granted by the appellate court if all
the materials are available before the Appellate Court.
FRAME ISSUES AND REFER THEM FOR TRIAL (Order XLI, Rule 25 and 26)
Under Rule 25 the Appellate Court may frame issues and refer them for trial to
the court passing the decree when:
- the court passing the decree has omitted to frame any issue
- the court passing the decree has omitted to try any issue
- the court passing the decree has omitted to determine any question of fact, which appears to be essential to the right decision of the suit upon the merits.
If the Appellate Court so frames the issues and refers to the trial court, it
shall direct such court to take the additional evidence required. Thereafter,
the trial court shall proceed to try such issues. It shall return the evidence
to the Appellate Court along with its findings and reasons, within the time
fixed by the Appellate Court. Such evidence and findings shall form part of the
record in the suit. Any party may present a memorandum of objections to any
finding within the time stipulated by the court. After expiry of such period,
the court shall proceed to determine the appeal.
PRODUCTION OF ADDITIONAL EVIDENCE IN APPELLATE COURT (Order XLI, Rules 27 to 29)
Ordinarily, the parties to an appeal are not entitles to produce additional
evidence in the Appellate Court. However, Section 107(1)(d) is an exception to
this and empowers an appellate court to take additional evidence or require such
evidence to be taken in oral or documentary form in appeal under following
- Where the lower court has improperly refused to admit evidence which ought to have been admitted
- Where the party seeking to produce additional evidence, establishes that such evidence was not within his knowledge at the time of passing of the decree
- Where the party seeking to produce additional evidence, establishes that even after exercise of due diligence, such evidence could not be produced by him at the time of passing of the decree appealed against
- Where the appellate court itself requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause
In Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi
, the Supreme Court
stated, "The basic principle of admission of additional evidence is that the
person seeking the admission of additional evidence should be able to establish
that with the best efforts such additional evidence could not have been adduced
at the first instance. Secondly, the party affected by the admission of
additional evidence should have an opportunity to rebut such additional
evidence. Thirdly, that additional evidence was relevant for the determination
of the issue.
In North Eastern Railway Admn. v. Bhagwan Das
, it was observed that the High
Court was bound to consider the application under Order XLI Rule 27 before
taking up the appeal on merits. The question whether looking into the documents,
sought to be filed as additional evidence, would be necessary to pronounce
judgment in a more satisfactory manner, has to be considered by the court at the
time of hearing of the appeal on merits. The appellate court has power to allow
additional evidence not only if it require such evidence "to enable it to
pronounce judgment" but also for "any other substantial cause".
In Malayalam Plantation v State of Kerela,
 additional evidence cannot be
permitted at the appellant stage in order to enable other party to remove
lacunae present in that case.
Rule 28 and 29 lay down mode of taking additional evidence. According to Rule
28, when appellate court admits additional evidence in appeal, the appellate
Court may itself take such evidence or direct the trial court or any other
subordinate court to take such evidence and send it to the appellate Court.
While Rule 29 provides that when additional evidence is directed or allowed to
be taken, the Appellate Court shall specify the points to which the evidence is
to be confined and record on its proceedings on the specified point.
In Radha Kishan v. Gopal Modi
,  the Supreme Court held that while proceeding
under Order XLI Rule 28 the High Court should afford proper and adequate
opportunity to both the parties in the interest of justice.
Judgment In Appeal (Order XLI, Rules 30 to 34)
A judgment is the declaration by a judge of his intention as to the final result
of a suit based on reasoning. The Judgment must be intimated to the parties and
to the world by formal pronouncements or delivery in open court.
Rule 30 provides that the judgment shall be pronounced either at once or on some
future day of which notice shall be given to the parties. If the judgment to be
pronounced is written then it shall be sufficient if the points for
determination, decision and the final order passed in the appeal are read out,
it is not necessary for the court to read out the whole judgment.
Rule 31 provides that the judgment of the Appellate Court shall be in
writing, signed and dated by the judge and shall state:
- The points for determination by the court
- The decision of the court on those points
- The reason for the decision
- The relief to which the appellant is entitled if the decree appealed from is reversed and varied.
Rule 32 states that judgment may confirm, vary or reverse the decree from which
the appeal is preferred. If the parties to the appeal agree as to the form of
the decree in appeal or as to the order of appeal, the court may pass the decree
or order accordingly.
Rule 33 empowers the Appellate Court:
- To pass any decree which ought to have been passed
- To make any order which ought to have been made
- To pass further or other decree or order as the case may require
The court may exercise this power irrespective of the fact that the appeal
relates to a part of the decree. The court may pass a decree or make an order
not only between the appellant and the respondent but also between one
respondent and another respondent.
It may pass a decree or make an order in
favor of all or any of the respondents, even though such respondents may not
have filed any appeal or objection. In case of decrees in cross-suits or several
decrees passed in one suit, the power may be exercised in respect of all or any
of the decrees, although no appeal has been filed against such decrees. Rule 33
has limited application, when there exists a legal interdict, the same would not
According to Rule 34, if the judgment is given by a Bench composed of two or
more judges, all the judges concurring therein shall sign. Any judge dissenting
from the judgment of the court, shall state in writing the decision which should
be passed on the appeal, with reasons.
In Ravi Kumar v. Julmi Devi
,  it was held that power of Appellate Court as
explained in Order XLI, Rule 33 shows that very wide powers have been conferred.
In exercise of its power, First Appellate Court can come to a finding different
from the one which has been arrived at by the Trial Court especially in a case
where appreciation of evidence by Trial Court is not proper.
In Pralhad v. State of Maharashtra
,  the Supreme Court held that the
Appellate Court is empowered to pass any decree or make any order which ought to
have been passed or made, and to pass or make such further or other decree or
order as the case may require.
CERTIFIED COPY OF JUDGMENT AND DECREE (Order XLI, Rules 36 and 37)
Rules 36 directs to provide the certified copy of the judgment and decree in
appeal to the parties on their expenses.
Rules 37 provides that the certified copy of the judgment and decree shall be
sent to the court which passed the decree appealed from and shall be filed with
the original proceedings in the suit and entry of the judgment of the Appellate
Court shall be made in the register of civil suit.
In Sanjay Kumar Singh v. State of Jharkhand
 (2022), Supreme Court explained
Order XLI Rule 27 of the Code of Civil Procedure which enables an appellate
court to take additional evidence in exceptional circumstances. The court
observed that an application seeking to adduce additional evidence can be
allowed where the additional evidence sought to be adduced removes the cloud of
In Charley Panthallookaran v. Joint Registar (General) of Cooperative Societies
 (2022), Kerela High Court considered the ambit of Rule 22 of Order XLI
of the Code of Civil Procedure and observed that where the respondent in an
appeal does not choose to avail the benefit conferred by the said provision then
it would not be obligatory for the Court to examine the correctness of the
finding rendered in the impugned judgment in a review petition.
In Sirajudheen v. Zeenath
 (2023), Supreme Court held that High Courts ought
not be remand a matter for trial de novo without recording any explanation as to
on what ground the decree was being reserved by it. Further Court observed that
de novo trial cannot be ordered merely because particular evidence has not been
adduced. (Rule 23-A CPC).
In Dheeraj Singh v. Greater Noida Industrial Development Authority (2023),
Supreme Court observed that the cross objections have all the trappings of a
regular appeal and must be considered in full by the court adjudicating upon the
same. (Rule 22 CPC).
Appeal is not defined in the Code. In simple terms, an appeal is right of
aggrieved party to approach superior court in order to redress error of lower
court. It is the recourse available to unsuccessful party to get the decree or
the order of lower court set aside. The object of appeal is to provide
opportunity to the aggrieved party to rectify any possible error.
Appeal is statutory right and not inherent right. The statute itself declares
whether a decree is appealable or not. It is of two kinds: first appeal and
second appeal. The appeal which arises from an original decree is known as first
appeal while the appeal arises from the decree passed by an appellate court in
first appeal is known as second appeal. Section 96 to 99-A and Order XLI include
provision related to appeal from original decree.
According to Section 96,
appeal lies from original decree, original ex-parte decree and decree passed by
small cause court. Section 97 restrict to appeal from final decree when there is
no appeal from preliminary decree. Section 98 states that when appeal heard by
two or more than two judges then, decision of appeal must be based on majority
consensus or opinion.
Section 99 provides that no decree shall be reversed or
modified for error or irregularity if that not effect merits or jurisdiction.
Rules 1-4 include provision in relation of requirement or content of memorandum,
rejection or amendment of memorandum.
Rule 5-8 provides provision related to
stay of proceeding and execution. Then, Rules 9-15 discussed about procedure on
admission of appeal. Rules 16-29 provides procedure on hearing. Rules 30-34
includes judgment in appeal and Rule 36 and 37 include provision about decree in
Thus, Appeal protects right of aggrieved party and provide remedy. The party who
prefers an appeal is called 'Appellant' and the 'Appellate Court' is competent
court to entertain, hear and decide an appeal. It must be filed before appellant
court within prescribed time.
An appeal against a decree or order can be filed
in a High Court within ninety days and in any other court within thirty days
from the date of the decree or the order appealed against. After expiration of
limitation period, the right of appeal vanishes and get barred by limitation.
- The Code of Civil Procedure 47-52 (LexisNexis Universal, 2023)
- Shriniwas Gupta, M P JAIN The Code of Civil Procedure 1195-1261 (LexisNexis Butterwords Wadhwa Nagpur 2011)
- C.K. Takwani, Civil Procedure 506-564 (EBC 2021)
- D.N. Mathur, The Code of Civil Procedure 709-744 (Central law publications 2023)
- AIR 2006 SC 2234
- Garikapati Veeraya v. N. Subbiah Chaudhry AIR 1957 SC 540
- AIR 1966 SC 1423
- Section 2(2)
- State of Punjab v. Amar Singh, (1974) 2 SCC 70
- AIR 2016 SC 3139
- (1906) 28 All 545
- (2014) 1 SCC 703
- 2009 AIR (SC) 1027
- 2010 AIR (SC) 1299
- Lal Chand v. Radha Krishna, (1977) 2 SCC 88
- Ratan Lal Shah v. Firm Lalman Das, AIR 1970 SC 108
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