The word appeal has nowhere defined in the Code of Civil Procedure. The term
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 court. An Appeal in legal parlance is held to mean the
removal of a cause from an inferior or subordinate to superior tribunal or forum
in order to test and scrutinize the corrections of impugned decisions.
In Shankar V. Krishnaji
it was held that, The right of appeal is one of
entering a superior court and invoking its aid and interposition to redress the
error of court below. The principle of merger of orders of inferior courts would
not become affected or inapplicable by making any distinction between a petition
for revision and appeal.
Section 96 of Code of Civil Producer
Appeal from original decree:
- 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.
- An appeal may lie from an original decree passed ex parte.
- No appeal shall lie from a decree passed by the Court with the consent
- 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
Section 96 provides for appeal from original decree. But, no appeal lies from a
decree passed by the court with the consent of parties. It is valuable right
and both the parties have right to be heard. A right of appeal must exist either
under the specific provisions of a statute or under the rules having the force
Essentials of appealEvery appeal has three elements
- A decision (which usually is a Judgement of court or ruling of an
- A person aggrieved (who is often , though not necessarily, a party to
- A reviewing body ready and willing to entertain an appeal.
Scope of section 96
It lays down some primary rules regarding appeals from original decrees which
are as follows:
- An appeal can be even from an ex-parte decree.
- But no appeal lies from a consent decree.
- No appeal lies from a decree in any suit cognizable by a small cause
court except on a question of law , and the value of the subject –matter of
the original suit which does not exceed Rs. 3000.
- An appeal lies under section 96 only from a decree and does not lie from
a mere finding. Section 104 of the code deals with appeal from orders.
In Zair Hussain Khan V. Khurshed Jan
it was held by Allahabad High Court
that, it is a general principle of the law that a right of appeal is not to be
assumed in any matter which comes under the consideration of court . Such right
must be given by statute or by some authority equivalent to a statute.
Right to appeal
In Anant Mills Co. Ltd. V. State of Gujarat
it was held that, it is a well
settled that an appeal is a creature of statute and there is no right of appeal
unless it is clearly and in express terms by statute. An appeal sometimes is a
matter of right , sometimes it depends upon discretion of the court to which
such appeals lies.
Who may appeal?
Section 96 of the code states that the right of appeal from one 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, two
conditions must be satisfied:
- The subject matter of appeal must be decree, that is a conclusive
determination of rights of parties with regard to all or any of matters in
controversy in the suit; and
- The party appealing must have been adversely affected by such
In Adi Pherozshah Gandhi
 it was held that, the test whether a person is an aggrieved
person is to see whether he has genuine grievance because an order has been made
which prejudicially affects his interests either pecuniary or otherwise.
Appeal by one Plaintiff against another Plaintiff
As a general rule, one Plaintiff cannot file an appeal against co-Plaintiff,
but, where the matter in controversy in the suit forms subject matter of dispute
between plaintiff inter se , an appeal can be filed by one Plaintiff against
another. This was held in Vithu V. Bhima.
Appeal by one defendant against another defendant
The principal which applies to filling of appeal by one plaintiff against
another plaintiff equally applies to an appeal by one defendant against another
defendant. It is only where the dispute is not only between the plaintiffs and
the defendants but, between defendants inter se and such decision adversely
affects one defendant against the other such appeal would be competent.
No appeal can be instituted against dead person. Such an appeal, therefore can
be regarded as stillborn. In such cases, an application can be made praying for
the substitution of legal representatives of the deceased respondent who died
prior to filling of an appeal.
Requirements of appeal
In order that an appeal may be said valid, following requirements must be
- It must be in form of memorandum.
- It must be signed by the appellant or his pleader.
- It must be resented to court or to such officer as authorized.
- The memorandum must be accompanied by certified copy of the Judgement.
Power of Appellate court
The power of appellate court are mentioned under section 107 of Code of Civil
Procedure which provides that appellate court shall have the same powers as are
conferred on the original court. If the trial court can dispose of a case
finally, appellate court can also by virtue of clause (a) of section 107 (1) of
the code determine the case finally was held in State of Punajb V. Bakshis
Distinction between Suit and Appeal
||A suit is where a cause of action is created
and issues are disputed on questions of both facts and law.
||An appeal only reviews and corrects
proceedings in a case which already is constituted, but does not create
||A suit is an attempt to archive an end via a
legal producer instituted in a court for someone claim.
||An appeal is continuation of a suit.
||A suit is filed in the trial courts.
||An appeal is filed in an appellate court for
purpose of reviewing the decision of court.
- Book Code of Civil Procedure by M.P.Jain
- Book of Code of Civil Procedure by M.P.Jain