Normally, one cannot except the final decision in the case. It is natural that
any error of law or procedure might have crept in. for removing such errors,
there is one method of appeal. Provisions have been made about appeal under
section 96 to 99, Order 41 of the civil Procedure Code, 1908.
Where the Appeal can be made?
According to section 96 of the code an appeal shall be from every decree passed
by any court exercising original jurisdiction the court authorized to hear
appeals from the decisions of such court.
It means that the appeals against the decree passed by the court can be made to
such court which is authorized to hear such appeals.
Examples- the appeal against the decree for Rs. 30,000 for recovery of money
passed by the Civil Court (Senior Division) can be made to the district court,
therefore, such appeal can be made to the court of district judge.
It is to be mentioned here that appeal can be made against the decree passed ex-parte.
Conditions under which appeal cannot be made:Under sub-section 3 and 4 of section 96, the appeal cannot be made under the
- Where the decree has been passed by the court with the consent of the
- Where the cognizable suit by small causes court is such in which there
is no question of law is involved and the value of the suit does not exceed Rs.
- Appeal against the final decree where the appeal against preliminary
decree has not been made (Section 97).
Therefore, no appeal can be made in the above three cases. Provision has been
made under sub-section 4 of section 96 that where any party is aggrieved with
the preliminary decree but he does not make appeal against such decree, then he
will be precluded from making appeal against the final decree (Kaushalya Devi Vs
A.I.R. 1961, Sc 790).
By whom appeal can be made?Appeal can be instituted by the following persons:
- persons who are aggrieved with the judgement and decree;
- on death of such person, by his legal representative;
- by the transfer of the interest of such person provided his name is on
record and is bound by the decree upto the limit of his interest, and
- by the purchaser of the property sold in auction.
Normally, no person is entitled to make appeal unless he is party to the case.
Judgment section 98
After hearing the parties or their pleader, the appellate court shall pronounce
the judgment in open court, either at once or on some future date after giving
notice to the parties or their pleader.
The judgment of the appellate court shall be in writing and shall state:
Not to interfere with decree for technical errors section 99
- the points for determination
- the decision thereon
- the reasons for decisions
- Where the appeal is allowed and decree of the lower court is reversed or
varied, the relief to which the appellant is entitled.
Section 99 of the code enacts that a decree which is otherwise correct on merits
and is within the jurisdiction of the court should not be upset merely for
technical and immaterial defects.
Object of section 99
The underlying object of section 99 is to prevent technicalities from overcoming
the ends of justice and from operating as means of circuitry of litigation
Procedure of Appeal:
Provision has been made for procedure of appeal under order 41 of the code.
According to this:
- Every appeal in the form of memorandum of appeal duty signed by the
appellant or his advocate will be submitted before the competent officer of
the court (Order 41, Rule 1).
If signature are put by the advocate on such memorandum, then it is necessary to
enclose Vakalatnama with it (Mrs Parwati V/s Anand Prakash, A.I.R. 1987, Delhi
- The copy of order appealed against must be enclosed with the memorandum
In one case, the copy of the order appealed against was not enclosed with the
memorandum but filed after before determination of such appeal. It was accepted
by the court (Bhagat Ram Vs Basant Ram, A.I.R. 1981, NOC 152, Himachal Pradesh).
- In the memorandum of appeal, the objections to the decree will be stated
briefly under different heads, without any detailed particulars and
arguments and such grounds will be numbered.
So long as these grounds of objections are not stated in the memorandum, they
will not be emphased and the court will not hear them.
It depends upon the discretion of the court to consider and hear those grounds
which have not been mentioned in the memorandum. But decision will not be made
on these grounds till the opportunity of hearing has been given to the party
affected thereby (Order 41, Rule 2).
- It the memorandum of appeal has not been made in the specified manner,
then it will be rejected by the court immediately or may be returned to the
appellant for amendment (Order 41, Rule 3)
- If the memorandum of appeal is accepted by the court then the date of
submission will be recorded on it and registered in the register of appeal
(Order 41, Rule 9).
- After the institution of memorandum of appeal, the stay order will be
passed by the appellant court to stay the proceedings of subordinate court.
But such order may be issued only when the court decided that there may be a
severe loss to the appellant if such order is not issued. If the execution of
decree is stopped then the interest of the public is also to be taken into
account (State of Gujarat Vs Central Bank of Ahmedabad, A.I.R. 1987, Gujarat
It is to mentioned here that the power to stay the proceedings lies with the
appellant court and not with the execution court (Maya Devi Vs M/s Dharampal
Madanlal, A.I.R. 1989, NOC 31, Punjab and Haryana).
- If on the day fixed for hearing or on the day for which the hearing has
been postponed, the appellant such appeal (Order 41, Rule 17).
- If on the day fixed for hearing of appeal, if the appellant does not
present himself, the court may hear it ex-parte.
But if the appellant gives sufficient reason for his absence and the court if
convinced may criminal ex-parte order (order 41, Rule 21). Similarly, if
sufficient reason is shown for absence, then the order may be issued to retake
the appeal for hearing (Order 41, Rule 19).
- The court may be take additional evidence in the case provided this
evidence is material in deciding the appeal on the basis of its merits and
demerits and thus evidence could not be made available at the trial of the
case (Order 41, Rule 27).
- Finally, the court while giving proper opportunity of hearing to both
the parties, the court will announce its decision on appeal in open court
(Order 41, Rule 30).
Such decision must be announced immediately after hearing the appeal. In a
particular case, the decision was announced after five years which was
considered unjust. (Bhagwandas fatechand Daswani Vs HPA International, A.I.R.
2000, SC 775).
Provision has been made for second appeal under sections 100 to 103 and order 42
of the code.
According to section 100, the second appeal can be made against decision made in
first appeal under the following conditions:
- where any substantial question of law is involved or
- where ex-parte decree has been passed in first appeal thus it is clear
that the second appeal can be heard on the ground of substantial question of law
otherwise not (Monika Pusali Vs Anjali Amma, A.I.R. 2005 SC 1777).
The second appeal cannot be made on the finding of fact (Kalidas Vs Ram Singh, AI.R. 2995, NOC 103, Himachal Pradesh).
In Govind Raju Vs Mariyamman (A.I.R. 2005, SC 1008), the Supreme Court
considered such question as the question of law
- which is debatable;
- which has not been decided earlier by the law of the land;
- which is affecting the material rights of the parties.
Second appeal on no other grounds section 101
No second appeal shall lie except on the ground mentioned in section
100.” therefore, it specifically bars the second appeal on any other ground
mentioned in Section 100. The grounds on which a Second Appeal shall lie are:
Sir Chunilal V. Mehta And Sons, Ltd. vs The Century Spinning And Manufacturing
- That the appeal should involve a substantial question of law that may
either be presented by the party in a memorandum of appeal or the court may
itself formulate such question;
- That the second appeal may be brought forth where the decree was passed
. It was held by the court that The proper test for determining whether
a question of law raised in the case is of general public importance or whether
it directly and substantially affects the rights of the parties.
No Second Appeal in certain cases section 102
The scope of application of a second appeal has been made limited by Section 102
to the cases wherein the subject matter of the original suit should exceed three
Section 102 reads as:
No second appeal in certain suits-No second appeal shall lie 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 three thousand rupees.
Question of fact:
The general rule is that the High Court shall only entertain matters involving a
substantial question of law but Section 103 serves a supplementary to this.
Section 103 states:
Power of High Court to determine issues of fact- In any
second appeal, the High Court may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal of the appeal:
- Which has not been determined by the lower Appellate Court or both by the
Court of the first instance and the lower Appellate Court, or
- Which has been wrongly determined by such Court or Courts reason of a
decision on such question of law as is referred to in section 100.
The particular section talks of two situations when a question of fact can be
dealt with by the court in a second appeal. Firstly, when a necessary issue has
not been determined by either the Lower Court or the Court of the first
instance. Secondly, when the necessary issue has been wrongly determined by the
Courts on the substantial question of law which can properly be the subject
matter of the second appeal under Section 100.
In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors
the question came up before
the court that whether the compromise decree was obtained by fraud. The court
held that though it is purely a question of fact none of the lower courts has
dealt with the question whether the decree was obtained by committing a fraud on
the Court and hence, this court can look into the question of fact by exercising
its power under Section 103.
Appeal from order section 104 and 106
Section 104 to 106 and order 42 deals with appeals from orders. They state that
certain order are appealable. No appeal lies against other order. But those
orders can be attacked in an appeal from the final decree. They also provide for
the forum of an appeal.
Order has been defined on formal expression of any decision of a civil court
which is not a decree. Thus an adjudication of a court which does not fall
within decree is an order.
Appealable orders Section 104 orders 43:
An appeal shall lie from the following order:
- An order awarding compensatory costs in respect of false or defence (sec. 35A) such appeal howeer is limited to two grounds. a) No order
could have been made. b) An order for less amount ought to have been made.
- An order refusing leave to institute a suit against public nuisance
- An order awarding compensation for abtaining arrest or
detention in civil prison of any except where such arrest or detention is in
execution of a decree.
- An order refusing leave to institute a suit in case of breach of trust
- An order retuning a plaint to be presented to the proper court.
- An order rejecting an application to set aside the dismissal of a suit
- An order rejecting an application to set aside an ex-parte
- An order objecting to the draft of a document of an endorsement on a
- An order setting aside or refusing to set aside a sale.
- An order rejecting an application to set-aside orders passed ex-parte in execution proceeding.
- An order refusing to set aside the abetment or dismissal of a suit.
- An order rejecting an application for permission to sue as an indigent
- An order for attachment of property or detention of a person dis-obeying an order of injunction.
- An order discharging, varying or setting aside injunction.
- An order of remand.
- An order granting an application for review.
Forum of appeal Sec. 106- Appeal from orders in cases in which they are appeal
able lie from the decree in the suit in which the order is made. Where such
order is made by a court other than a High Court in the exercise of appellate
- The provisions relating to first appeal shall apply to appeals from orders
- An appeal from an order can be filed in High Court within 90 days and in
another court within 30 days from the date of the orders.
Appeals to the Supreme Court Sec. 109- Appeal to the supreme court are governed
by the provisions of Art. 132, 133 & 134-A of the constitution of India with
regard to civil matters subject to the provisions of the constitution, are
appeal shall lie to the supreme court from any judgment, decree or final order
in a civil proceeding of a High Court if the High Court certified that:
Sec. 109 reads with order 45 deals with appeal to the Supreme Court.
- The case involved a substantial question of law of general importance.
- In the opinion of the High Court the said question needs to be decided
by the supreme court.
Conditions-sec. 109, order 45 rule 3, an appeal would lie to the Supreme Court
under sec. 109 of the code only if the following conditions are fulfilled:
- A judgment, decree or Final order must have been passed by the High
Court- An appeal lies to the Supreme Court only against a judgment, decree
or final order of the High Court. It must be one which purports to put an
end to the litigation between the parties. No certificate can be granted in
respect of an interlocutory order.
- Substantial question of law of General importance- an appeal would lie
to the Supreme Court if the High Court certifies that the case involves a
substantial question of law of general importance. The substantial question
to law must be such that apart from the parties to the litigation, the
general public should be interested in determination of such question by the
- Need to decide by Supreme Court- it is not sufficient that the case
involves a substantial question of law of general importance but in addition
to it, the High Court must be of the opinion that such question needs to be
decided by the Supreme Court. the word 'need' suggests that when two views
are possible regarding the question and the High Court takes one view of the
Procedure at hearing- the party desiring to appeal to the Supreme Court whose
decree is sought to be appealed from, ordinary such a petition should state the
ground of any pray for the issue of a certificate:
- The case involves the substantial question of law of general importance.
- In the opinion of the High Court said question need to be decided by the
After notice to the other side, the court may grant or refuse to grant the