Essence of Appeal from Original Decree in Civil Procedure Code

Abstract:

This Article focuses on Appeal from original decrees given under Sections 96 to 99A and detailed information is provided under Order 41 from Rule 1 to Rule 29 of the Civil Procedure Code, 1908. Appeal exist when one party is not satisfied with the decree or order passed by the court and files an appeal in the appellate court. Appeal from original decree is maintainable on question of fact or question of law. The code provides an appeal from a decree and not from the judgement. The use of expression “appeal”, “first appeal” or “second appeal” is neither material nor decisive. It is a substance and not the form which is relevant.

Keywords- Appeal, Decrees, Courts, limitation.

Introduction

Appeals from original decrees are mentioned under Part- IV under section 96, 97, 98, 99 and 99 A. Appeals from original decree also known as First Appeal. It is a remedy available to the party or individual to get the justice. An Appellate court commonly called an appeals court, court of appeal. Generally, from every original decree is passed by any court first appeal lies. First appeal may or may not be filed in High Court.

Meaning and Concept of appeal:

There is no proper definition given under Civil Procedure Code, 1973. In General-sense, it is the examination by the higher court of the decision given by the lower court. The party who is not satisfied with the decree may go for an appeal. The person filing an appeal is called an appellant while the person defending the lower court’s ruling is respondent.

Importance of appeal

Each appeal requires following 3 ingredients

  • Case Decided- It is necessary that the case must be decided by the lower court or subordinate court. In other words, decree has been passed by the court or judgement is given on that particular case.
  • Aggrieved Party- When such decree is passed by the court, the party who has suffered loss or injury because of the decree passed by the court, then such aggrieved party may file an Appeal.
  • Court to accept the appeal- Right to appeal is not an inherited right. There is no right to a person to go for appeal if it is not provided expressly by such statute. If it is mentioned in statute then the court will accept and entertain the appeal.[1]

Detailed provision on appeals from original decrees

Section 96: Appeal from original decree-

1. An appeal shall lie from the decree if such decree has been passed by the court has original jurisdiction and appealed to the authorised court who has appellate jurisdiction to hear the appeal.

2. In case of ex-parte decree, the defendant can file an appeal against such decree. The appellate court is competent to go into the question of priority.

3. In case of consent decree, no appeal shall lie. Because the consideration for the agreement involved in a consent decree is that both the parties give up their right to appeal.

4. In case of petty cases, if the original suit does not exceed 10000/- then the appeal shall not lie in the court.

Section 97 and section 98:

When a preliminary decree is passed and the person does not appeal against such decree then it excludes the aggrieved party from challenging the final decree.

When appeal is heard by 2 or more judges, then the decision will be based on majority. But in case of even number of majority, point of law is considered.

Section 99:

If the errors or irregularity does not affects the merits of the case such decree shall not be reversed or modified.

Limitations

An appeal against decree or order can be filed in High court within 90 days and in any other court within 30 days from the date of the original decree

Case Laws

1. Kishun v. Behari- When one of the party sets up a compromise and the other disputes it and questions validity thereof, the court has to conduct an inquiry and to adjudicate the issue whether there was a legal and valid compromise. Thus, such decree cannot be said to be a consent decree.

2. Bank of India v. Mehta Bro’s- It was held under this case that one plaintiff cannot file an appeal against a co-plaintiff. But where a matter in controversy in the suit forms subject matter of disputebetween plaintiff’s inter se, an appeal can be filed by one plaintiff against another plaintiff.

3. State of Bombay v. Supreme General films and exchange- In this case it was held that Right to appeal cannot be taken away, if it is available on the date of institution of suit and subsequently law passed taking away right to appeal.

4. Sital Parshad v. kishori lal- It was held under this case that 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.

Conclusion

It can be concluded that the Appeal is a statutory and substantive right. It is a creation of statute. The appeal process allows a losing party in the lower court decision to have their cases retried again. Appeal shall lie from every decree passed by any court exercising original jurisdiction. There is no appeal in petty cases and consent decree. If there is an agreement between the parties not to file an appeal is valid if it is based on lawful or legal consideration. Appeal lies only against decree and not against judgement. The court of appeal has power to affirm, set aside or vary any order or judgement made or given by the lower court. In case of the adverse decision is given by the court right to appeal does not arise. It can also be said that the provisions of CPC provided substantive plus procedural aspects relating to appeal.

References

1. http://legislative.gov.in/sites/default/files/A1908-05.pdf ( lastvisited Nov 5, 2020 11:35 Am)

2. https://www.studocu.com/in/document/university-of-delhi/labour-law/lecture-notes/first-appeal-cpc-cpc-notes/8931441/view (Last Visited Nov 6, 2020 3:30 PM)

3. C.K.Takwani, Civil Procedure with Limitation Act, 1963, 8thedition of 2017



[1] C.K.Takwani, Civil Procedure with Limitation Act,1963 on 470 , 8th edition of 2017.

[1] http://legislative.gov.in/sites/default/files/A1908-05.pdf

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