First Appeal

0
3394
First appeal

Any person who feels aggrieved by any decree or order passed by the court may prefer an appeal in a superior court if an appeal is provided against that decree or order. The expression appeal is generally understood as the judicial examination of the decision by a higher court of the decision of a lower 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 inferior court. From any decree passed by any court exercising original jurisdiction, first appeal lies to the court authorised to hear appeals from the decision of such court unless otherwise has been expressly provided either under the Code or by any other law for the time being in force. Sections 96 to 99-A. 107 to 108 and Order 41 of the Code of Civil Procedure deal with appeals from original decrees which are known as first appeal This chapter demonstrate various aspects of appeals from original decrees. 

Meaning of first appeal

As stated above appeals from original decrees are known as first appeal. The expression “appeal” has not been defined in the Code of Civil Procedure. Right of appeal is the right of entering a superior court and invoking its aid and interposition to redress the error of the court below. Thus, appeal is “the judicial examination of the decision by a higher court of the decision of an inferior court”.[1]Explaining the concept of appeal in Bhil Kanji Bhagwan v. Bhil Karsan Bijal[2] the Gujarat High Court observed:

“Appeal is an application or petition to a higher authority or a Court of law for reconsideration of the decision of a lower authority or an inferior Court of law. It is an application or a proceeding for review to be carried out by a higher tribunal of a decision given by a lower one. An appeal is one in which the question is. whether the order of the Court from which an appeal is brought was right on the materials which that Court had before it.”

Right to appeal: A statutory & substantive right

Right to appeal is statutory and substantive right. It is not merely appeal procedural right. Statutory right means must be conferred by statute unless it provides there won’t be any right to appeal. While right to institute a suit is not conferred by law. The right is inherent. But right to appeal has to be conferred by appeal statute. Where statute provides for right to appeal, it may constitute appeal machinery where shall the appeal lie. While the same isn’t true for right to sue. A civil suit has to be filed subject to condition of jurisdiction. An appeal is appeal substantive right. Right to appeal can’t be taken retrospectively because general rule of specific interpretation. Substantive law operates prospectively unless an express statute provides so.

Who may appeal

As a general principle, no one can appeal unless he was a party to the proceedings or was treated as such, or the legal representative of the party or unless his privity in estate, title or interest is apparent on the face of the record. However, any person having a legal grievance which might have deprived him of the benefit or bound by the order passed is certainly entitled to the leave. Even in case of doubt as to the existence of the right of appeal, the appellant should get the benefit of doubt.[3]

An appeal under this section may be preferred by any of the following persons:

  • Any party to the suit adversely affected by the decree,[4] or, if such party is dead, by his legal representative.[5]
  • Any 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.[6]

No person, unless he is party to the suit, is entitled to appeal under this section.[7] But a person who is not a party to the suit, may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the judgment and if it would be binding on him as res judicata, under Explanation 6 to sec. 11.[8] A person who is not a party to a proceeding, can still appeal against the order passed in the proceeding with leave of Appellate Court, provided he would have been a proper party to the proceeding.[9] Even a party to the suit or a proceeding will have no right of appeal against a decision, unless he is, in fact, affected by it. Thus, a person who is impleaded as a respondent in a writ petition on his own application, is not entitled to appeal against the order therein when there is nothing in it prejudicial, to him. If a suit is filed against a government officer in his official capacity and against the state and is decreed only against the officer, the state has no locus standi to file an appeal even though the decreed amount against the officer will have to be paid by the government. This is because it is only a party who has been adversely affected by a decree or order that can appeal from such a decree or order. When in proceedings under the Companies Act, 1956, the contention was urged on behalf of the Central Government that certain rules framed under the Act were ultra vires and that was accepted by the court and an order passed accordingly, it was held that it was not open to the government to prefer an appeal against that order and contend that the rules are intra vires as the order was one passed at the instance of the government and in its favour.

A successful party in whose favour a decree has been passed, cannot challenge the decree by filing an appeal on the ground that an adverse finding against that party has been recorded in the judgment. According to the Bombay High Court the remedy available to such party to challenge an adverse finding is to file cross-objection when the opposite party files appeal challenging the decree. Where, however, no appeal is filed by the opposite party challenging the decree, the adverse finding cannot be challenged by the party in whose favour the decree was passed.[10]

The question whether a party is adversely affected by a decree is a question of fact to be determined in each case according to its particular circumstances. It is clear that if a plaintiffs claim is decreed in its entirety and all the issues are found in his favour, the plaintiff cannot appeal from the decree. In case the plaintiffs claim is decreed in its entirety, but one of the issues is found against him, can the plaintiff appeal from the adverse finding? It has been held that he cannot.[11] The reason is that the very fact that the decree is entirely in the plaintiffs favour, notwithstanding a finding adverse to him on one of the issues shows that such finding was unnecessary to the determination of the plaintiffs suit. It has been stated in the notes to s 11, that when a finding on an issue is not necessary to the determination of a suit, such finding does not operate as res judicata; and it is an elementary principle that an appeal is not admissible on any point that does not operate as res judicata. Where, however the plaintiff had sued for alternative reliefs and has been granted relief in respect of one such relief, a question arises as to whether he can appeal against the decree which has refused the other relief. The trend of decisions is that he cannot appeal, but the point was left open in a Patna case.

In a later decision, however, the same High Court has held that in such a situation the question has to be determined on the averments in the plaint. If the plaint read as whole discloses that the plaintiff will be satisfied with either of the reliefs claimed by him, he cannot appeal if one cf the reliefs is granted. One who gets what he wants is not a ‘person aggrieved’. But if the plaint read as whole gives an impression that of the alternative reliefs one is the main relief and the other one is claimed only if it is found that the main relief cannot be granted and is refused, the plaintiff can appeal and urge that he is entitled on the facts of the case to the main relief.[12] Where the order of the Appellate Court remanding a case becomes final, no appeal can lie against the decision of the trial court which implements the directions of the Appellate Court.[13] Similarly, if a suit is brought by A and B, and the suit is dismissed in its entirety, B cannot appeal from the decree. And even if one of the issues is found against B, B cannot appeal from the finding, for such finding does not operate as res judicata for the reason stated above.[14] It sometimes happens that happens, where there are two or more defendants, that although a suit is dismissed as against one of them, in other words, the decree on the face of it is entirely in his favour, the decree impliedly negatives the right claimed by such defendant as against the plaintiff and the other defendants. In such a case, it has been held that an appeal lies at the instance of such defendant on the ground that he is adversely affected by the decree. X owes Rs 2,000 to A. A assigns the debt first to B and then to C. C sues A and B to recover the debt, alleging that the assignment to B had become void through non-fulfilment of the conditions upon which it was made. A decree is passed against A, but the suit is dismissed as against B. Here, the decree necessarily implies the finding that the assignment to B had become void, in as much as but for such a finding the decree could not have been passed in favour of C who admittedly was the second assignee of the debt. B may, therefore, appeal from the decree, though as against him the suit was dismissed.[15] In a suit by X against A and B with respect to immovable property, A pleaded the title of B. Then B died and A was recorded as his legal representative. The suit was decreed in favour of X. A is entitled to file an appeal against the decree.[16] But where a suit is filed against two defendants and a decree is passed which effects the rights of only one of them and the defendant so affected allows the decree to become final by omitting to appeal, the other defendant cannot, by appeal, challenge the decree, first, because he did not represent the co-defendant and secondly, because the decree did not adversely affect his interests and therefore he cannot be said to be an aggrieved person.[17]

In some cases, an appeal may be preferred by a defendant against his co-defendants. A sues two Hindu brothers B and C, on a promissory note passed by B for money borrowed by him (B) as manager of the family, alleging that B and C were joint, and that the loan was obtained by B for family purposes. B does not appear at the hearing. C appears and admits that he and B are joint, but denies that the loan was obtained for family purposes. An issue is raised as to whether the debt contracted by B was for family purposes. It is found by the court that the loan was obtained by B for family purposes, and a decree is passed against B and C. Here C can appeal the decree as between himself and B. The rule is that when a court deals with a case as raising not only a question between the plaintiff and the defendants, but also as between the defendants, one of the defendants can appeal from the decree as between himself and the other defendants.[18] An appeal will lie even against a finding if it is necessary and operates as res judicata.

Who may not appeal

If a party agrees not to appeal or waives his right to appeal, he can not file an appeal and will be bound by an agreement if otherwise such agreement is valid. Such an agreement, however, must be clear and unambiguous. Whether a party has or has not waived hid right of appeal depends upon the facts and circumstances of each case. Similarly, where a party has accepted the benefits under a decree of the court, he can be estopped from questioning the legality of that decree.[19]

As Scrutton, L.J. observed, “It startles me that a person can say the judgment is wrong and at the same time accept the payment under the judgment as being right…. In my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being bad.”

Finally, the vested right of appeal is destroyed if the court to which an appeal lies is abolished altogether without any forum being substi­tuted in its place.

Agreement not to appeal

A right of appeal is a statutory right. If a statute does not confer such right, no appeal can be filed even with the consent or agreement between the parties.

But an agreement between the parties not to file an appeal is valid if it is based on lawful or legal consideration and if otherwise it is not illegal.[20]

Appeal against ex-parte decree

 One of the remedies available to the defendant, against whom an ex parte decree is passed, is to file an appeal against such a decree under Section 96(2) of the Code, though he may also file an application to set aside ex parte decree.

Both the remedies are concurrent and can be resorted to simultaneously. One does not debar the other. As has been rightly said:

“Where two proceedings or two remedies are provided by a statute, one of them must not be taken as operating in derogation of the other.”[21]

In an appeal against an ex parte decree, the appellate court is compe­tent to go into the question of the propriety or otherwise of the ex parte decree passed by the trial court.

No appeal against consent decree

Section 96(3) declares that no appeal shall lie against a consent decree. This provision is based on the broad principle of estoppel. It pre-sup­poses that the parties to an action can, expressly or impliedly, waive or forgo their right of appeal by any lawful agreement or compromise or even by conduct. The consideration for the agreement involved in the consent decree is that both the sides give up their right of appeal. Once the decree is shown to have been passed with the consent of the parties, Section 96(3) becomes operative and binds them. It creates an estoppel between the parties as a judgment on contest. Where there is a partial compromise and adjustment of a suit and a decree is passed in accordance with it, the decree to that extent is a consent decree and is not appealable. This provision, however, does not apply where the factum of compromise is in dispute or the compromise decree is challenged on the ground that such compromise had not been arrived at lawfully.[22]

No appeal in petty cases

Section 96(4) has been inserted by the Amendment Act of 1976. It bars appeals except on points of law in certain cases. Prior to 1976, Section 96 allowed a first appeal against every decree. Now, sub-section (4) bars appeals on facts from decrees passed in petty suits where the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees, if the suits in which such decrees are passed are of a nature cognizable by Courts of Small Causes. The underlying object in enacting the said provision is to reduce appeals in petty cases. Such restrictions are necessary in the interests of the litigants themselves. They should not be encouraged to appeal on facts in trivial cases.[23]

Appeal against preliminary decree

An appeal lies against a preliminary decree.[24] A preliminary decree is as much a final decree. In fact, a final decree is but a machinery for the implementation of a preliminary decree.[25] Failure to appeal against a preliminary decree, hence, precludes the aggrieved party from challenging the final decree. Where an appeal is filed against a pre­liminary decree and is allowed and the decree is set aside, the final decree falls to the ground as ineffective since there is no preliminary decree to support the final decree, which means that the preliminary decree would be taken to have been correctly passed.[26]

Appeal against judgement

The Code provides an appeal from a decree and not from a judgment. An aggrieved party, however, may file an appeal against the judgment, if a decree is not drawn up by the court.[27]

Order 41

As stated above, sections 96-99A enact the substantive law as regards First Appeals, while order 41 lays down the procedure relating to thereto. The expressions appeals and memorandum of appeal denote two different things. The appeal is the judicial examination by a higher court of the decision of the inferior court. The memorandum of appeal contains the grounds on which the judicial examination is invited. The order lays down the requirements that have to be complied with for validly presenting an appeal.[28]

Rule 2 precludes the appellant to urge, except with the leave of the court, any grounds of objection not set forth in the memorandum of appeal. Where the memorandum of appeal is not in the proper form, the court may reject it or return to the appellant for the purpose of making amendments.[29] Under the provision of Rule 3A, where an appeal has been presented after the expiry of the period of limitation specified therefor, it should be accompanied by an application that the applicant had sufficient cause for not preferring an appeal within the said time. This rule was inserted during the 1976 Amendment Act to give effect to the recommendation of the Privy Council[30].

Rule 5 provides for the stay of execution of decree or order. After an appeal has been filed, the appellate court may order stay of proceedings under the deree or execution of such decree. But mere filing of an appeal does not suspend the operation of the decree; the following grounds  must be satisfied before the court may grant a stay :

1. the application has been made without any unreasonable delay,

2. substantial loss will result to the applicant unless such order is made, and

3. security for the due performance of the decree or order has been given by the applicant.

Rule 11 deals with the power of the appellate court to summarily dismiss an appeal. This rule embodies a general principle that whenever an appeal is preferred, the appellate court is entitled to reject the appeal summarily, after hearing the appellant, if no prima facie substance exists. Where an appeal raises triable, it should not summarily dismiss the suit. A case on this aspect is Mahadev Tukaram v. Smt Sugandha.[31]In this case, a will was executed by an old man of 80 years. Although he was literate, the will bore his thumb impression and not his signature. No other document bearing his thumb impression was produced to support the reason that thumb impression was taken because his hand was shaky. Out of the six attesting witnesses, only two were examined. The evidence of the doctor was also not convincing. The trial court held the will as genuine and the matter on appeal to the High Court was dismissed summarily. On second appeal the court held that the High Court was not justified in dismissing the appeal summarily, since the first appeal had triable issues.

Rule 16 says that the appellant has the right to begin, just like in the case of an original suit wherein the plaintiff has the right to begin. If the appeal is not dismissed summarily, then the court shall hear the respondent against the appeal and the appellant then be entitled to reply. Like in the case of the original suit, if the plaintiff does not appear for the hearing, the case may be dismissed, so is the case during the appeal too. If the appellant does not appear when the appeal is called for hearing, the court may dismiss the appeal in default.[32] The same result ensues in the case of the non-payment of the process fee by the appellant, similar to that of the situation of the original suit. Under rule 19, the appeal may be restored after being dismissed if the appellant files for such action and shows sufficient cause.

As is the case with the original suit, if the respondent does not appear but the appellant does, the court may proceed ex-parte.[33] If the case goes in the favour of the appellant, the respondent may apply for the rehearing of the appeal. If he is able to satisfy the court that he had sufficient cause for not having appeared for the scheduled hearing, the court may accept the application.[34]However, ordinarily the court should not pass an ex-parte decree except on reliable evidence.

Again, as in the case of the original suit, where joinder of parties is allowed, so in the case of an appeal respondents may be added under the provisions of rule 20. Where it appears to the appellate court at the hearing of the of the appeal 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 the appeal, the court may adjourn the hearing of the appeal and direct such person be joined as a respondent. The object of this rule 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.

Conclusion

The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an application or petition to appeal higher Court for are consideration of the decision of appeal lower court. It is appeal proceeding for review to be carried out by appeal higher authority of appeal decision given by appeal lower one. In appeal is appeal creature of statute and right to appeal is neither an inherent nor natural right.

Appeal person aggrieved by appeal decree is not entitled as or right to appeal from decree. The right to appeal must be given by statute. 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 favour, 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.

As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesn’t arise when adverse decision is given, but on the day suit is instituted i.e. proceedings commenced, right to appeal get conferred. Thus, it can be said the Right to appeal is appeal substantive right vested in parties from the date suit instituted.

Frequently Asked Questions

1. Discuss the provision in CPC relating to appeals from original decree.

The expression ‘appeal’ has not been defined in the code but it may be defined as ‘Judicial examination of the decision of an inferior court. It is thus a remedy provided by law for getting the decree of the lower court set aside.

The provisions relating to First Appeal are provided in section 96 and rules governing appeals from original decrees are mentioned in Order 41.

2. Discuss the provision of first appeal and IInd appeal and the distinction and the distinction between the two.

A) First Appeal lies to a superior court from a decree passed by a court exercising original jurisdiction. Whereas, second appeal lies only in the High Court from a decree passed by a court exercising appellate jurisdiction.

B) First appeal can be filed on question of fact or law whereas Second appeal can be filed where it involves substantial question of law.

C) The period of limitation for First Appeal is 90 days in case such an appeal lies to High Court and 30 days for other court and Second appeal within 90 days only to high court.

3. Discuss in detail with relevant provisions the powers of the appellate court to reverse/dismiss the judgment and decree of courts.

Rule 11 deals with the power of the appellate court to summarily dismiss an appeal. This rule embodies a general principle that whenever an appeal is preferred, the appellate court is entitled to reject the appeal summarily, after hearing the appellant, if no prima facie substance exists. Where an appeal raises triable, it should not summarily dismiss the suit. A case on this aspect is Mahadev Tukaram v. Smt Sugandha.[35]In this case, a will was executed by an old man of 80 years. Although he was literate, the will bore his thumb impression and not his signature. No other document bearing his thumb impression was produced to support the reason that thumb impression was taken because his hand was shaky. Out of the six attesting witnesses, only two were examined. The evidence of the doctor was also not convincing. The trial court held the will as genuine and the matter on appeal to the High Court was dismissed summarily. On second appeal the court held that the High Court was not justified in dismissing the appeal summarily, since the first appeal had triable issues.

Rule 16 says that the appellant has the right to begin, just like in the case of an original suit wherein the plaintiff has the right to begin. If the appeal is not dismissed summarily, then the court shall hear the respondent against the appeal and the appellant then be entitled to reply.

4. Unless a right of appeal is clearly given by a statute, it does not exist. Explain the provisions relating to 1st appeal?

From any decree passed by any court exercising original jurisdiction, first appeal lies to the court authorized to hear appeals from the decision of such court unless otherwise has been expressly provided either under the Code or by any other law for the time being in force. Sections 96 to 99-A. 107 to 108 and Order 41 of the Code of Civil Procedure deal with appeals from original decrees which are known as first appeal

5. Discuss the provisions of second appeal as contained in section 100 of C.P.C along with the latest amendments in section 100 of C.P.C?

Save as otherwise, expressly provided by the code or by any other law, an appeal shall lie to the High Court from every decree passed in appeal by any subordinate court, where the court is satisfied that a substantial question of law is concerned.

An appeal may lie under this section from an appellate decree passed ex-parte.

The memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

Where the high court is satisfied that a substantial question of law is involved, it shall formulate the question. The appeal shall be heard on the question so formulated and the respondent, at the hearing be allowed to argue that the case does not involve such question.

6. Where and on what grounds a second appeal lies?

Same as Ans. 7.

7. What is the procedure for grant of stay when an appeal is filed from a decree?

Rule 5 provides for the stay of execution of decree or order. After an appeal has been filed, the appellate court may order stay of proceedings under the decree or execution of such decree. But mere filing of an appeal does not suspend the operation of the decree; the following grounds must be satisfied before the court may grant a stay :

1. the application has been made without any unreasonable delay,

2. substantial loss will result to the applicant unless such order is made, and

3. security for the due performance of the decree or order has been given by the applicant.

 Edited by – Sakshi Agarwal

Quality Check – Ankita Jha

Approved & Published by –  Sakshi Raje

References

[1] Garikapati Veeraya v. Subbiah Choudhary. AIR 1957 SC 540

[2] 2003 GLH (23) 385

[3] Petromarine Products Ltd. v. Ocean Marine Services Co. Ltd.

[4] Hafiz Mohamud v. Swamp Chand, (1942) 2 Cal 434 

[5] Gajadhar r. Ganesh, (1871) 7 Bom LR 149.

[6] Moreshwar v. Kushaba. (1878) 2 Bom 248.

[7] Rustomji v. Official Liquidator. (1919) PR No. 79 p. 196

[8] Province of Bombay v. Western India Automobile Assn. AIR 1949 Bom 141;

[9] UCO Bank v. Hanuman Synthetics, AIR 1985 Cal 96.                                 

[10] Dr. Mangla Shellar v. Dr. Laxman Ganpat Jadhav. 2008 (1) Mah LJ 244 

[11] Secretary of State v. Satninatha, (1914) 37 Mad 25

[12] Union of India v. Garbhu Sao. AIR 1972 Pat 341.

[13] Sakharchand v. Punju. 74 Bom LR 709 

[14] Chilian; Kadir Sahib v. Vishwanathayyar, AIR 1943 Mad 497.

[15] Bhubindra Narayan Bhattacharjya v. Mst. Tarupriya Debva. AIR 1950 Assam 119 

[16] Tulsiram v. Shyamlal, AIR 1960 MP 73.

[17] Nirmala Bale v. Balai Chand. AIR 1965 SC 1874 : (1965) 3 SCR 550.

[18] Surn v. Naravanarao, (1894) 18 Bom 520.

[19] Dexters Ltd v Hill Crest Oil Co. (1926) 1 KB 348.

[20] Katikara v. Guntreddu (1974) 1 SCC 567.

[21] Ajudhia Prasad v. Balmukund, ILR (1866) 8 All 354 (FB); Rani Choudhury v. Suraj lit Choudhury, (1982) 2 SCC 596: AIR 1982 SC 1393; Archana Kumar v. Purcndu Prakash, (2000) 2 MP LJ 491 (FB).

[22] Banwari Lai v. Chando Devi, (1993) 1 SCC 581: AIR 1993 SC 1139; see also Thakur Prasad v. Bhagwan Das, AIR 1985 MP 171:1985 MP LJ 149: 1985 Jab LJ 248.

[23] Law Commission’s Fifty-fourth Report at p. 72, Statement of Objects and Reasons; see also, Clause 9 on “Notes on Clauses” to the CPC (Amendment) Bill, 1997.

[24] Phoolchand v. Gopal Lai, AIR 1967 SC 1470: (1967) 3 SCR 153; see also, S. 97.

[25] Venkata Reddy v. Pelhi Reddy, AIR 1963 SC 992

[26] Kaushalya Devi v. Baijnatb Sayal, AIR 1961 SC 790 

[27] Or. 20 Rr. 6-A, 6-B; Or. 41 R. 1 (1); see also Jagat Dhish v. jawahar Lai, AIR 1961 SC 832

[28] Order 41, r1

[29] Order 41, r3

[30] Statement of Objects and reasons

[31] AIR 1972 SC 1932.

[32] Rule 17(1)

[33] Rule 17(2)

[34] Rule 21

[35] AIR 1972 SC 1932.

Previous articleAddressing the issues pertaining to ADR
Next articleNeed for Expert Determination and Conciliation in Lok Adalats
Shuvneek Hayer
Shuvneek Hayer is currently pursuing her B.A. LLB(Hons). from University Institute of Légal Studies, Panjab University, Chandigarh. Law had never been her area of interest initially, but gradually as she completed a year in law school, she was drawn to the contemporary issues involving human rights and literature. Inside her law degree, she participated in various national and international level moot court competitions, Debates, MUNs and served as a member of Moot Court Society, UILS. Outside her degree, She got herself involved in a Chennai-based NGO and taught the underprivileged kids on weekends. Later she put forth the idea of bringing up an NGO run by law students where they could address the issues individually and closely interact with the community by fighting for their rights. She has presented various research papers including a few on women rights, child rights, surrogacy rights, communal rights, etc. In her free time, she loves reading contemporary literature, current issues and spending time with family.