Appeal

Appeal

Meaning: Generally it means the judicial examination of the decision by higher court of the decision of an interior court. It is a proceeding initiated by an aggrieved party in the superior court against the decision of a subordinate court.

Right of appeal: It is a settled law that the right to appeal is not an inherent right. It is a right created by a statute. Supreme Court in Anant Mills Co. Ltd. v. State of Gujarat, (1975) 2 SCC 175 held that there is no right to appeal unless it is provided by the statute. 

Material date of right to appeal: The right to appeal accrues on the date of suit. In other words it is a right which is governed by the law prevailing on the date of institution of suit and not on the date of decision Garikapti Veerya v. N. Subbiah Chaudhary, AIR 1957 SC 540. Thus, if on the date of institution of suit the right of appeal was provided by the statute it will be available to the aggrieved party after the decree/order is passed even though subsequently it is taken away by the legislature.

Essentials of appeal: Following are the essentials of appeal:-

1. A decision [decree or order]

2. An aggrieved person

3. A superior forum/court

Who may file an appeal: Following persons can file appeal:-

1. A party to the suit who is aggrieved;

2. If such party is dead, his legal representatives; [see Section 146]

3. Any person claiming under aggrieved person; [see Section 146]

4. Guardian ad litem appointed by the court in case of suit by or against minor; [see Section 147 and Order 32 Rule 5]

5. Any other person if he is adversely affected by the decision of the court, with the leave of the court. 

Appeal is a continuation of suit: Appeal is considered to be the continuation of the suit. A decree passed by the appellate court would be construed as the decree passed by the court of first instance. First appellate court can do all that which could be done by the trial court.

Right of appeal under Code of Civil Procedure

• Appeal from original decrees or First Appeal [Section 96 r/w Order 41]
• Appeal from appellate decrees or Second Appeal [Section 100-103 r/w order 42 ] 
• Appeal from order section 104 r/w order 43
• Appeal by indigent persons [Order 44]
• Appeal to Supreme Court [Section 109 r/wOrder 45]

Appeal from original decrees [First Appeal]

Section 96 gives right to appeal from every decree, including ex parte decree, passed by any court exercising original jurisdiction to the court authorized to hear such appeal. Order 41 lays down the procedure relating to first appeal.

Order 41 Rule 1 provides that every appeal shall be preferred in the form of memorandum. Memorandum shall be accompanied by a copy of the judgment. Memorandum shall contain the grounds of objection to the decree appealed against.

It must be noted here that according to Order 20 Rule 6-A an appeal may be preferred against the decree without filing a copy of decree. It is because according to Rule 6-A time for preparation of decree is fifteen days from date of judgment. So, till the time the decree is under preparation the judgment of the court shall be considered to be the decree for the purpose of filing the appeal. It further says that as soon as the decree is drawn, the judgment shall cease to have the effect of decree.

Appeal from appellate decree [Second Appeal]

Section 100 creates the right of second appeal against the decree passed by the court subordinate, to the High Court while exercising its appellate jurisdiction. Such appeal is made to the High Court on ground that the case involves substantial question of law. Section 100(2) provides that second appeal may be even against an ex parte decree passed in appeal if it involves substantial question of law.

Sections 100 & 101 provides that second appeal is filed only when the case involves substantial question of law and on no other ground. Prior to the Amendment Act of 1976, decision contrary to law or to usage having force of law were the grounds of second appeal under Section 100. However, the legislature restricted the scope of Section 100 in 1976 by way of amendment and now second appeal can be preferred only on substantial question of law.

Appeal from orders

Section 104 and Order 43 Rule 1 enumerate certain orders of the court from which an appeal may be

preferred. Following are few illustrations:-

1. Order under Section 35A imposing costs for vexatious claims or defences.

2. Order under Section 91 and 92 refusing leave to institute a suit of the nature referred to in Section 91 and 92.

3. Order under Section 95 providing compensation for obtaining arrest, attachment, etc.

4. Order imposing a fine or directing arrest or detention in civil prison of any person except in execution of decree.

5. An order under Rule 10 of Order 7 returning a plaint to be presented in proper court except where procedure specified in Rule 10 A has been followed.

6. An order under Rule 9 of Order 9 rejecting an application for an order to set aside the dismissal of suit.

7. An order under Rule 13 of Order 9 rejecting an application for an order to set aside a decree passed ex parte.

8. An order under Rule 21 of Order 11.

9. An order under Rule 34 of Order 21 on an objection to the draft of a document of of endorsement.

10. Other others enumerated under Rule 1 of Order 43.

No Second appeal from order: Section 105 of the Code provides that no appeal from orders of the court can be preferred unless provided by the code under Section 104 and Order 43 Rule 1. However, if decree is appealed against and the defect or error in order affects the decision of the case, in such case, even though non-appealable, an order may be objected.

Appeal to the Supreme Court

Section 109 allows appeal to the Supreme Court against any judgment, decree or final order in a civil proceeding of a High Court if the latter certifies that the case involves substantial question of law which needs to be decided by the Supreme Court. Such right is subject to constitutional provisions and rules of Supreme Court.