Dr.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
The Code of civil procedure

Project on
PROVISION OF FIRST APPEAL

SUBMITTED TO SUBMITTED BY
DR. VIPUL VINOD SNEH PRATAP SINGH

ASSSTT. PROF. (LAW) CHAUHAN

170101141

(BALLB IVTHSEM)
ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep re-gards to my guide Dr. Vipul
Vinod, my professor of this subject for his exemplary guidance, monitoring and constant
encouragement to give shape to this project. The blessing, help and guidance given by them time
to time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to my respected seniors who
share their cordial support, valuable informa-tion and guidance, which helped me in completing
this task through various stages.

Lastly, I thank the almighty, my parents, brother, sister and friends for their constant
encouragement without which this assignment would not have been possible.
1. Introduction

Appeal can be defined as judicial examination of the decision by a higher court of the decision of
the inferior court.Section 96-99 and Rules 23 to 33 of Order 41 enumerate the powers of an
appellate court while hearing first appeals. Further Section 100-103, 107-108 and Order 42 deals
with Second Appeal.

Every person has been given right the of appeal against decree. However, right of appeal is not
an inherent right. Rather it can only be availed where it is expressly granted by law. Appeal lies
against a decree and not against a judgment. Rights of appeal are substantive right and they are
not mere matters of procedure. Further right of appeal is governed by the law prevailing at the
date of the suit and not by law that prevails at the date of the decision or at the date of filling of
the appeal. An appeal lies under section 96 CPC only from a decree because the decree marks the
stage at which the jurisdiction of the court which the appeal is made begins. As such unless a
decree is drawn up, no appeal lies from a mere finding, but if the finding amount to a decree, an
appeal would lie.1

2. Who can Appeal

1. Any party to the suit, who is adversely affected by the decree or the transferee of interest of
such party has been adversely affected by the decree provided his name was entered into record
of suit.

2. An auction purchaser from an order in execution of a decree to set aside the same on the
grounds of fraud.

3. Any person who is bound by the decree and decree would operate res judicata against him.

Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316

In this case, the Trial Court judge prohibited the exhibition of film both in India and abroad.
Session Judge permitted the exhibition of film in abroad. Subsequently, a party who moved in

1
("GENERAL PROVISIONS RELATING TO APPEAL | RACOLB LEGAL", 2019)
appeal did not have locus standi. It was reversed by division bench saying that its not proper on
the part of judge as he entertained the suit on which party has no locus standi.2

3. 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. 3

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 substi-tuted in its place.4

4. 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.5

5. Provisions under which First Appeals are preferred

Against decree, as defined under Section 2(2), regular First Appeal is provided under Section 96,
C.P.C. Normally suit concludes by pronouncement of (final) judgment under Order 20 Rule 1.
(Such judgment in view of its definition given under Section 2(10) means the statement given by

2
V.R.Manohar and W.W.Chitley, The AIR Manual, pg. No. 192
3
Dexters Ltd v Hill Crest Oil Co. (1926) 1 KB 348.

4
("First Appeal - Law Times Journal", 2019)
5
Katikara v. Guntreddu (1974) 1 SCC 567
the Judge on the grounds of the decree.) Thereafter, by virtue of Order 20 Rules 6 and 7 the
decree shall be drawn which shall agree and be in accordance with the judgment and shall be
signed by the judge on being satisfied about its correctness as such. The decree shall bear date,
the day on which the judgment was pronounced (even though its preparation and drawing up
may take some time, within 15 days as per Order 20 Rule 6-A). The main ingredient of the
decree is operative portion of the judgment. According to Order 20 Rule 6 decree shall contain
particulars of the claim and shall specify clearly the relief granted or other determination of the
suit. Amount of costs are also to be stated therein. (Rules 6, 6-A and 7 of order 20 quoted at the
end)

Section 2(2), 2(9) and Section 96 C.P.C. are quoted below: "2 (2) "Decree" means the formal
expression of an adjudication which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters in controversy in the
suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint
and the determination of any question within section 144, but shall not include- a) any
adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal
for default. 2 (9) "Judgment" means the statement given by the Judge on the grounds of a decree
or order." 96. Appeal from original decree. - (1) 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 to the Court authorized to hear
appeals from the decisions of such Court. (2) An appeal may lie form an original decree passed
ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4)
No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Court of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed (ten) thousand rupees.”

Combined reading of both the above provisions shows that against certain adjudications regular
First Appeal is maintainable and against certain adjudications it is not. Both are given below:-

A. Appeal maintainable

a. Against a decree

b. Against preliminary decree

c. Against final decree

d. Rejection of plaint under Order 7 Rule 11 C.P.C.

e. Determination of any question within Section 144 (restitution)

f. Original decree passed ex-parte.

B. Adjudication against which regular first appeal does not lie:

a. Dismissal of suit in default

b. Determination of any question within Section 47 [prior to the amendment of 1976-77 against
such determination regular first appeal was maintainable as it was included in the definition of
decree under Section 2(2)]

c. Decree passed by the Court with the consent of the parties.

d. From a decree in any suit of the nature cognizable by JSCC when the amount or valuation of
the subject matter of the suit does not exceed Rs. 10,000/ - except on a question of law.

e. Against decree passed by the JSCC in view of Section 7, through which Section 96 relating to
appeal is not extended to courts constituted under Provincial Small Causes Courts Act, 1887.
Section 25 of the PSCC Act provides revision against decree passed by the JSCCs on a question
of law.

Against certain orders passed in a suit before its final decision also appeal is provided under
Section 104 read with Order 43, Rule 1 C.P.C. These appeals in the District Courts are called
Miscellaneous Appeals and in Allahabad High Court as First Appeals from Orders (F AFO).
Section 104 specifically provides Miscellaneous Appeals against orders granting compensatory
costs in respect of false or vexatious claims or defences (Section 35-A), an order under Section
91 or 92 of C.P.C. refusing leave to institute a suit in respect of public nuisance and other
wrongful acts affecting public; and public charities, an order under Section 95 C.P.C regarding
compensation for obtaining arrest, attachment or injunction on insufficient grounds or against
certain orders imposing fine or directing the arrest or detention in civil prison. Thereafter, under
Section 104 (l)(i) C.P.C. it is provided that miscellaneous appeals may also be filed against those
order which under the rules are made appealable. This refers to Order 43, Rule 1 C.P.C. under
which 18 types of orders are made appealable (some orders which were earlier appealable, were
deleted from Order 43 Rule 1 C.P.C. through amendment by Act No. 104 of 1976 w.e.f.
1.2.1977, hereinafter referred to as amendment of 1976-77). Under C.P.C. third type of appeal is
provided under Order 21, Rule 103 by virtue of which orders passed on the applications for
dispossession of third party in execution of decree have been conferred the status of decree and
made appealable. The rule is quoted below:- 0.21, R. 103 “Where any application has been
adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force
and be subject to the same condition as to an appeal or otherwise as if it were a decree". Rules 98
to 103 were substituted through amendment of 1976- 77, prior to that such types of orders were
not appealable but subject to the result of the suit. Similar is the position under O. 21 R. 58 (4) in
respect of attachment.

C. Appeals under, other Acts

Sometimes First Appeal is provided to the District Judge or the High Court under other Acts like
appeal under Section 22 of U.P. Rent Control Act (U.P. Act no. 13 of 1972), before the District
Judge against order passed under Section 21 of the Act on the application of landlord for eviction
/ release of the tenanted building on the ground of bonafide need. Section 30 Workmen’s
Compensation Act provides appeal to the High Court against certain orders of Commissioner but
only on question of law. First appeal to the High Court is provided under Section 173 of Motor
Vehicles Act against orders passed by District Judge/Additional District Judge for compensation
in case of death or injury under the same Act.

6. Right of Appeal vested right

Right of appeal is vested right and accrues on the date on which first proceedings (suit,
application, objection etc.) are initiated. If the right of appeal is taken away or restricted
thereafter, it does not affect right of appeal in respect of pending proceedings, unless expressly
so expressed vide Videocon v. SEBI AIR 2015 SC 1042. However this principle does not apply
to revision.
7. Appeal, statutory right, can be made conditional by Statute:

In Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126 it has been held that suit is inherent, general or
common law right and it need not be provided by any statute, however, appeal is a statutory right
and is maintainable only when some statute provides the remedy of appeal. Following this
authority it has been held in Gujarat Agro Industry v. Municipal Corporation Ahmadabad AIR
1999 SC 1818 that statute providing right of appeal can make the right conditional like deposit of
tax or its part in case of appeal against assessment/imposition of tax. Right of appeal under
Section 96 C.P.C. is not conditional. Accordingly admission of such appeal cannot be
conditional e.g. it cannot be ordered along with admission of appeal that in case certain amount
is not deposited within certain time order of admission of appeal shall stand withdrawn or
recalled vide Management of M/s Devi Theatre v. Vishwanath Raju AIR 2004SC332 and G.L.
Vijain v. K. Shankar AIR 2007 SC 1103 (Such condition may be attached with stay order.

8. When does right to appeal to appeal accrues to any person?

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. The right to appeal can be waived
by a party under a legal and valid agreement, and if a party has accepted the benefits under the
decree, he is stopped from challenging its legality. The right to appeal also stands destroyed if
the court to which appeal lies is abolished altogether without any forum being substituted in its
place

The Court hearing the appeal, has the power to implead a person as respondent who has not been
so impleaded where it appears to the court that he may be a person and interested in the result of
the appeal.6

9. Appeal against Preliminary and Final Decrees:

6
Order XLI, right to appeal 20(1), Code of Civil Procedure 1908.
In certain suits, two decrees are passed, one is preliminary and the other is final, like partition
suit, in which, in the preliminary decree shares of the parties are determined and in final decree
actual partition is done by metes and bounds. Appeal is provided against both the decrees i.e.
preliminary as well as final. However, if against the preliminary decree appeal is not filed then
its correctness cannot be questioned in an appeal which is preferred against final decree as
provided under Section 97 C.P.C.

10. Appeal against decree, challenge to other orders:

"Section. 105. Other orders .-(1) Save as otherwise expressly provided, no appeal shall lie from
any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a
decree is appealed from, any error, defect or irregularity in any order, affecting the decision of
the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained In sub-section (1), where any party aggrieved by an
order of remand from which an appeal lies does not appeal there from, he shall thereafter be
precluded from disputing its correctness."

Accordingly any order passed in suit before final judgment and decree, if it affects ultimate
judgment and decree, its correctness can be questioned in appeal against decree otherwise not.
To illustrate orders passed on temporary injunction application do not affect the ultimate
judgment and decree hence there is no question of challenging their correctness in the appeal
against decree. However order passed on application seeking amendment in the pleading may
affect the ultimate judgment and decree hence if it is not immediately challenged then its
correctness can be questioned in appeal against the decree. Under Sections 12 and 16 of the U.P.
Rent Control Act (U.P. Act No. 13 of 1972) first vacancy declaration order is passed and
thereafter the building is either released in favour of the landlord or allotted to someone else.
Against release or allotment order revision to the District Judge is provided under section 18 of
the Act. The Supreme Court in Ganpat Roy v. ADM, AIR 1985 SC 1635 has held that vacancy
declaration order can at once be challenged through writ petition in the High Court. However if
vacancy declaration order is not immediately challenged through writ petition still its correctness
can be questioned in revision which is filed against ultimate order of release or allotment on the
principle of Section 105 C.P.C. vide Achal Misra v. Rama Shanker Singh 2005 (5) SCC 531 (3
judges) (paras 11 to 13)

11. Powers of First Appellate Court:

First Appellate Court has got power to judge the correctness of findings of facts as well as of law
recorded by the Trial Court. However, Second Appeal to the High Court under Section 100
C.P.C. lies only if the case involves substantial question of law. Section 107 C.P.C. provides as
under:- "107. Powers of Appellate Court-

(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall
have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) 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.” Accordingly most of the things which
may be done by the Trial Court can also be done by the Appellate Court.

Under Order 6 Rule 17 C.P.C. plaint or written statement may be amended. The rule itself
provides that the Court may, at any stage of the proceedings, allow either party to alter or amend
his pleading. Accordingly, amendment in plaint or written statement may be sought even during
pendency of appeal. However, in this regard great caution must be taken and the first thing which
is to be seen is as to why amendment application was not filed before the trial court during
continuance of the suit. Further, by virtue of the Amendment in C.P.C. w.e.f. 1.7.2002 a proviso
has been added to Order 6 Rule 17 to the following effect:

"Provided that no application for amendment shall be allowed after the trial has commenced
unless the court comes to the conclusion that in spite of due diligence the party could not have
raised the matter before the commencement of trial.” After decision of the suit trial not only
commences but stands concluded.

12. Appeal by Some of the Parties

Order 41 Rule 4 provides as under:

"One of several plaintiff or defendants may obtain reversal of whole decree where it proceeds on
ground common to all. - Where there are more plaintiffs or more defendants than one in a suit,
and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the
defendants, anyone of the plaintiffs or of the defendants may appeal from the whole decree, and
thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or
defendants, as the case may be”.

Even if other plaintiffs or defendants as the case may be, are not made proforma respondents it
will not make any difference. Similarly even if other plaintiffs or respondents as the case may be
are made proforma respondents and some of them die and substitution application is not filed,
appeal will not abate vide B. S. Ruia v. S. N. Ruia AIR 2004 SC 2546.

13. Conditional Stay order:

Stay order in appeal can be made conditional and if condition is not complied with stay order
will stand revoked/ discharged but appeal will remain intact and will have to be heard on merits
vide Devi Theatre supra.

In Atma Ram Properties (P) Ltd. v. M/ s. Federal Motors Pvt. Ltd., 2005 (1) SCC 705 it has been
held that in Rent Control matters in appeal and revision against order of eviction conditional stay
order may be granted and condition for payment of more.

14. Dismissal in default of appeal Ex-parte hearing and restoration

Before 1976-77 Amendment of Order 41 Rule 17 C.P.C. there was conflict of opinion among
different High Courts regarding power of the court in case the appellant does not appear and only
respondent appears, There has never been any doubt that in such situation appeal may be
dismissed in default, however, the difference of opinion was as to whether in such situation
appeal could be dismissed on merit or not. Allahabad High Court was of the opinion that appeal
could not be dismissed on merit in such situation. In 1976-77 approving the view of Allahabad
High Court and of some other High Courts the following explanation has been added to Order 41
Rule 17: "Explanation.-Nothing in this sub-rule shall be construed as empowering the Court to
dismiss the appeal on the merits." Accordingly in the absence of appellant either appeal may be
adjourned or it may be dismissed in default, however it cannot be dismissed on merit. If it is
dismissed on merit in the absence of appellant still order will be treated to be dismissal in default
and if the appellant shows good cause for his absence, order will have to be set aside vide
Harbans Prasad Jaiswal.

Under the same rule it is provided under Sub Rule 2 as follows:-

“(2) Hearing appeal ex parte-Where the appellant appears and the respondent does not appear
the appeal shall be heard ex parte,"

If appeal is allowed after hearing the appellant ex-parte in absence of respondent then the
respondent under order 41 Rule 21 may apply for rehearing of appeal after setting aside of ex-
parte decree of appeal. If respondent shows good ground for his absence then the judgment even
though on merit has to be set aside and appeal has to be readmitted and heard afresh. However,
in such rehearing application merit of the ex-parte judgment cannot be seen. If respondent wants
to challenge ex parte judgment, allowing the appeal, he can only apply for review vide Harbans
Pershad Jaiswal v. Urmila Devi Jaiswal AIR 2014 SC 3032.

15. Case Related To General provisions of Appeal

Shantilal v Gujarat Electricity Board: Three writ petitions were filed in the High Court. In two
petitions, vires of statutory provisions were challenged. After the decision of the High Court, the
matters were taken to the Supreme Court which remanded the cases to the High Court with a
direction to decide vires of the provision. The High court refused to try that issue in the third
matter. The Apex Court held that the High Court was bound to decide vires in all matters.7

Purapabutchi Rama v PurapaVimalakumari: In this case it was stated that no remand can be
ordered by the Appellate court under Rule 23 unless the decision of the lower court on the
preliminary point is reversed in appeal.8

CWT vs. AluminiumCorpn. Ltd: The High Court of Calcutta expressed doubts about the
Supreme Court to remand the case. When the matter reached the Supreme Court again, the Apex
Court observed that the High Court clearly exceeded its jurisdiction in examining the
competence of the Apex Court to remand the case.9

ShivajiraoNilangekarPatil v. Mahesh MadhavGosavi: In this case the Supreme Court stated

that 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 be adduced at first instance. Secondly the party affected by the
admission of additional evidence should have an opportunity to rebut such additional evidence.
Thirdly the Additional evidence should be relevant for the determination of the issue.10

K.R. Mohan Reddy v Net Work Inc.: In this case the Supreme court stated that clauses (a), (aa)
and (b) of Rue 27 (1) refer to three different situations. For exercising jurisdiction thereunder, the
Appellate court must record a finding that one or other conditions of Rule 27 (1) is satisfied.11

12. 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

7
Shantilal v Gujarat Electricity Board (1971) 3 SCC 854.
8
Purapabutchi Rama v PurapaVimalakumari AIR 1969 AP 216 at p. 220.
9
CWT vs. AluminiumCorpn.Ltd (1973) 3 SCC 643: (1972) 1 SCR 484.
10
ShivajiraoNilangekarPatil v. Mahesh MadhavGosavi (1987) I SCC 227.
11
K.R. Mohan Reddy v Net Work Inc AIR 2008 SC 579.
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.

As stated above section 107 and 108 are general provisions relating to appeal. Section 107 deals
with the powers of the appellate court in the cases of appeal. Whereas Section 108 of Code of
Civil Procedure deals with the procedure in appeals from appellate decrees and orders.

The appellate court should not exercise the power of remand very lightly, As far as possible it
should dispose of the appeal finally unless remand is imperative. The correctness of an order of
remand if not questioned at the time when it was made by filing an appeal, nevertheless can be
challenged later on in an appeal arising out of the final judgment and decree.

When a party is unable to produce the evidence in the trial court under the circumstances
mentioned in the Code, he should be allowed to produce the same in the appellate court. Even
though this power is discretionary, but it can be exercised and it should be exercised in sound
judicial principles and in the interest of justice.
13. Bibliography

 http://www.legalserviceindia.com/article/l50-Appeals-from-Original-Decrees---A-Comprehensive-
Study.html
 https://racolblegal.com/general-provisions-relating-to-appeal/#_ftnref5
 http://www.ijtr.nic.in/APPELLATE%20JURISDICTION.pdf

 https://lawtimesjournal.in/first-appeal/