FIRST APPEALS UNDER CPC

UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY, CHANDIGARH

SUBJECT- CIVIL PROCEDURE

PROJECT TOPIC- ‘CONCEPT OF FIRST APPEALS

UNDER CPC’

Submitted to – Dr. Karan Jawanda Submitted by- Rakshit

B.Com LL.B(Hons.)
Semester- 8th
Section -D
Roll no.- 235/17

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ACKNOWLEDGEMENT
I would like to express my gratitude to the University Institute of Legal Studies, Panjab
University, Chandigarh for giving me the opportunity to make this project in the first instance
and to do the necessary research work. I have furthermore to thank the library staff and the
computer staff of the department which provided me with necessary resources required for
the project. I am grateful to all the people who provided me with their valuable guidance and
encouragement to move ahead with the project.

I am deeply indebted to Dr. Karan Jawanda mam, University Institute of Legal Studies,
Panjab University, Chandigarh. Her stimulating suggestions and encouragement helped me at
all times during research and writing of this project.

I acknowledge the help of all those who have directly or otherwise facilitated in the
completion of this project.

Thank you

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TABLE OF CONTENTS

Page no.

1. Introduction 6
2. Procedure Related to Appeals 6
3. First Appeals 7
4. Form of Appeal 11
5. Cross Objections 13
6. Powers of Appellate court 14
7. Duties of Appellate Court 17
8. Appeals to Supreme Court 19
9. Conclusion 20
10. Bibliography 21

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ABBREVATIONS
 A.C. : Appeal Cases
 All. : Allahabad
 A.G. : Attorney General
 AIR : All India Reporter
 Cal. : Calcutta
 Cri. L.J.: Criminal Law Journal
 ETC. : And Other things
 GOVT.: Government
 H.C. : High Court
 NO. : Number
 ORS. : Others
 SC : Supreme Court
 SCC : Supreme Court Cases
 SEC. : Section
 SCR : Supreme Court Reporter
 SUPRA: As Stated Earlier
 U/S : Under section
 V. : Versus
 WWW : World wide web

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TABLE OF CASES
Page no.
 Adi Pherozshah Gandhi v. H.M. Seervai, AIR 1971 SC 385 8
 Bank of Commerce Ltd. v. Protap Chandra Ghose, AIR 1946 FC 13 11
 Dexters Ltd. v. Hill Crest Oil Co., (1926) 1 KB 348 9
 DK Trivedi v. State of Gujarat, AIR 1986 SC 1323 17
 Kalipad Dinda v. Kartick Chandra, AIR 1977 Cal. 3 15
 Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 17
 Mahadev Tukaram v. Sugandha, AIR 1972 SC 1932 12
 Panna Lal v. State of Bombay, AIR 1963 SC 1516 14
 Praduman Kumar v. Virendra, AIR 1969 SC 1349 16
 Protap Chunder v. Arathoon, ILR (1882) 8 Cal 455 9
 State of Punjab v. Amar Singh, (1974) 2 SCC 70 8
 State of TN v. S. Kumaraswami, AIR 1977 SC 2026 17

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INRODUCTION
Any person who feels aggrieved by any decree or order of the court may prefer an appeal in
the superior court if the appeal is provided against that decree or order. A right to appeal is
not a natural or an inherent right. An appeal is a creature of the statute and there is no right of
appeal unless it is given clearly and in express terms. It is a vested right and accrues to the
litigant and exists as on and from the date the lis commences.
The expression “appeal” has not been defined in the code, but it may be defined as the
judicial examination of the decision by a higher court of the decision of an inferior court.1 It
means removal of a cause from an inferior to a superior court for the purpose of testing the
soundness of the decision of the inferior court. It is thus a remedy provided by law for getting
the decree of the lower court set aside. In other words, it is a complaint made to the higher
court that the decree passed by the lower court is unsound and wrong. The right to appeal
must, at this juncture, be compared and distinguished from a right to file a suit. As said, the
right to appeal is a statutory right and any such right must have the express authority of a law.
The right to sue or to file a suit is, however, an inherent right and no express authorization
from any statute may be required to institute a suit. It is enough that no statute expressly bars
the institution of such suit.
Under the Code of Civil Procedure, the following are the provisions relating to the right of
appeal:
Sections 96-112 and Orders 41 to 45.
1. First appeals: Ss. 96-99A, 107 and Order 41.
2. Second Appeals: Ss. 100-103, 108 and Order 42.
3. Appeals from orders: Ss. 104 -108 and Order 43.
4. Appeals to the Supreme Court: Sections 109, 112 and Order 45.
5. Appeals by indigent people: Order 44.
This paper basically focuses on appeal from original decrees made under Section 96 of the
Code of Civil Procedure.

PROCEDURE RELATED TO APPEALS

The appeal being the continuation of the suit is held not without any reason; it may be
examined in the light of the following propositions:
1. The appellate court has all the powers and has to do all those things necessary that a trial
court has and has to do. In this sense, even when the case goes on appeal, it is just the name
that has undergone a change; the form and substance still remain the same.

1
Takwani, C.K., Civil Procedure Code, 8th Edition, Eastern book Company, Lucknow 2017, p -475

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2. In the same vein as above, the appellate court has to do all that has been done by the trail
court in that particular case, and then either agree or disagree from the trial court.
3. Hence, even the appellate court has to write a judgement and pass a decree. In the event of
the court upholding the lower court’s decision, the appellate court may write down the same
decree, without changing it, and the decree will now be deemed to have been that of the
appellate court.
4. Finally, the suit is not deemed to be “finally concluded” for matters of res judicata till the
appeals are over. This implies that it is deemed that the same suit is in progress even while
the appeals are on. It is only when the courts have finally come to a conclusion, after all
possible appeals have been used and tried by the appellant, that the suit is said to have been
conclusively decided.
The above said propositions point out, in essence, what is implied when it is said that the
appeal is a continuation of the suit. The various provisions relating to the appeals have
already been stated in the introduction to this work. A detailed look into these provisions at
this juncture becomes pertinent.

FIRST APPEALS
Section 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 the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from 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 Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed ten thousand rupees.
As already stated in the introduction, the provisions relating to the first appeals are sections
96-99A, 107 and order 41. Section 96 of the code recognizes the right to appeal from every
decree passed by any court of original jurisdiction. It does not enumerate the persons capable
of appealing. Two conditions have to be fulfilled before an appeal may be filed under this
section:
1. The subject matter of an appeal is always a decree; an appeal is allowed only after a decree
has been passed, which implies the conclusive determination of the suit.
2. The party appealing must have been adversely affected by such determination.
The ordinary rule is that only a party to a suit adversely affected to by the decree or any of his
representatives in interest may file an appeal. But a person who is not a party to the suit may

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file an appeal, only if the court has granted special leave, provided that he is either bound by
the decree or order or is aggrieved by it or is prejudicially affected by it.
In the case of Adi-Pherozshah v. H.M. Seervai 2 , the court observed that the test to see
whether a person is aggrieved or not is to see whether he has a genuine grievance because an
order has been made which prejudicially affects his interests either pecuniary or otherwise.
Similarly, a person who has waived his right to appeal or agrees not to appeal loses his right
to appeal. The right to appeal is also lost if the court to which the appeal lies is abolished and
no court is substituted in its place.
From the above general principles, the following persons are entitled to appeal under this
section:
1. A party to the suit who is aggrieved or adversely affected by the decree, or if such party is
dead, his legal representatives.
2. A person claiming under a party to the suit or a transferee of the interests 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.
3. A guardian ad litem appointed by the court in a suit by or against a minor.
4. Any other person, with the leave of the court, if he is adversely affected by the decree.3

APPEAL BY ONE PLAINTIFF AGAINST ANOTHER PLAINTIFF

As a general rule, one plaintiff cannot file an appeal against a co-plaintiff. But where the
matter in controversy in the suit forms subject-matter of dispute between plaintiffs inter se,
an appeal can be filed by one plaintiff against another plaintiff.

APPEAL BY ONE DEFENDANT AGAINST ANOTHER DEFENDANT

The principle which applies to filing of appeal by one plaintiff against another plaintiff
equally applies to an appeal by one defendant against another defendant. It is only where the
dispute is not only between plaintiffs and the defendants but between defendants inter se and
such decision adversely affects one defendant against the other that such appeal would be
competent.

WHO CANNOT APPEAL?

The right of appeal is lost by following means:
1. By waiver
If a party agrees not to appeal or waives his right to appeal, he cannot file an appeal and will
be bound by an agreement if otherwise such agreement is valid. Such an agreement must be

2
AIR 1971 SC 385.
3
State of Punjab v. Amar singh (1974) 2 SCC 70.

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clear and unambiguous. Whether a party has or has not waived his right of appeal depends
upon the facts and circumstances of each case.4
2. By Acceptance of Benefits.
Similarly, where a party has accepted the benefits under a decree of the court, he can be
estopped from questioning the legality of the decree.5
As Scrutton, L.J. observed, “It startles me that a person can say that 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.”
3. By Abolition of forum to which Appeal lies.
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.

APPEAL AGAINST EX PARTE DECREE: SECTION 96(2)

The defendant, against whom an ex parte decree has been passed, has the following remedies
available to him:
1. Apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or
2. Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115
where no appeal lies);
3. Apply for review: Order 47 Rule 1; or
4. File a suit on the ground of fraud.
The above remedies are concurrent and they can be prosecuted simultaneously or
concurrently. In an appeal against an ex parte decree, the appellate court is competent to go
into the question of the propriety of the ex parte decree passed by the trial court.

NO APPEAL AGAINST CONSENT DECREE: SECTION 96(3)

Section 96(3) declares that no appeal shall lie against a consent decree. This provision is
based on the broad principle of estoppel. It presupposes 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 a 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

4
Protap Chunder v. Arathoon, ILR (1882) 8 Cal 455.
5
Dexters Ltd. v. Hill Crest Oil Co., (1926) 1 KB 348

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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.

NO APPEAL IN PETTY CASES: SECTION 96(4)

It 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, this
sub-section 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 the nature cognizable by the 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 interest of the litigants themselves. They should
not be encouraged to appeal on facts in trivial cases.6

APPEAL AGAINST PRELIMINARY DECREE

An appeal lies against a preliminary decree. A preliminary decree is as much a final decree.
In fact, a final decree is but machinery for the implementation of a preliminary decree.
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.

NO APPEAL AGAINST FINAL DECREE WHERE NO APPEAL

AGAINST PRELIMINARY DECREE
In suits which contemplate the making of two decrees: a preliminary decree and a final
decree, the decree which would be executable would be the final decree. But the finality of a
decree or a decision does not necessarily depend upon it being executable. The legislature in
its wisdom has thought that suits of certain types should be decided in stages and though the
suit in such cases can be regarded as fully and completely decided only after a final decree is
made, the decision of the court arrived at the earlier stage also has a finality attached to it.
Section 97 of CPC reads as follows:
97. Appeal from final decree where no appeal from preliminary decree.- Where any
party aggrieved by a preliminary decree passed after the commencement of this Code does
not appeal from such decree, he shall be precluded from disputing its correctness in any
appeal with may be preferred from the final decree.
It is now clear that where a party aggrieved by a preliminary decree does not appeal from it, it
is precluded from disputing its correctness in any appeal which may be preferred from the
final decree. This provision thus clearly indicates that as to the matters covered by it, a

6
Law Commission’s 54th report at pg.72

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preliminary decree is regarded as embodying the final decision of the court passing that
decree.

APPEAL AGAINST JUDGMENT AND FINDINGS

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.
But no appeal lies in case of a finding recorded by the court in case such appeal does not
amount to a decree or an appealable order.

APPEAL AGAINST DEAD PERSON

No appeal can be instituted against a dead person. In such cases, an application can be made
praying for the substitution of the legal representatives of the deceased respondent who died
prior to the filing of the appeal. In that case, the appeal can be taken to have been filed on the
date of the application for substitution of the legal representatives. If, by that time, the appeal
is time-barred, the appellant can seek condonation of delay.7

LIMITATION
CPC confers a right of appeal, but does not prescribe a period of limitation for filing an
appeal. The limitation Act, 1963, provides the period for filing appeals. It states that an
appeal against a decree or order can be filed in a High Court within 90 days and in any
other court within 30 days from the date of the decree or order appealed against.8

FORM OF APPEAL
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. An 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.9
In order that an appeal may be said to be validly presented, the following requirements must
be complied with:
1. It must be in the form of a memorandum setting forth the grounds of objections to the
decree appeal from;
2. It must be signed by the appellant or his pleader;
3. It must be presented to the court or to such officer as it appointed;
4. The memorandum must be accompanied by a (certified) copy of the judgement.

7
Bank of Commerce Ltd. v. Protap Chandra Ghose AIR 1946 FC 13.
8
Art. 116, Limitation Act, 1963
9
http://www.lawnotes.in/Section_97_of_Code_of_Civil_Procedure,_1908

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5. Where the appeal is against a money decree the appellant must deposit the decretal
amount or furnish the security in respect thereof as per the direction of the court.
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. 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.10
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.
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 11. 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. The same result
ensues in the case of the non-payment of the process fee by the appellant, similar to that of
10
http://www.lawzonline.com/bareacts/civil-procedure-code/order41-rule3A-codeof-civil-procedure.html see
also Naran Anappa v.Jayantilal AIR 1987.
11
AIR 1972 S.C. 1932.

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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 12. 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.
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.

CROSS OBJECTIONS
INTRODUCTION, MEANING AND NATURE
Order 41 Rule 22 is a special provision permitting the respondent who has not filed an appeal
against the decree to object to the said decree by filing cross-objections in the appeal filed by
the opposite party. Filing of cross objections is optional and voluntary. The provision is
permissive and enabling and not peremptory or obligatory. Where the suit is partly decided in
favour of one party and partly in favour of another, and one party files the appeal, the other
party may either file a cross appeal or a cross objection or he may simply support the decree.
Cross objections are filed by the respondent against the appellant in an appeal filed by the
appellant against the respondent.13 One cannot treat an objection by the respondent against
the appellant as a cross objection if the appellant has no interest in it. The appeal is by the
appellant against a respondent, the cross objection must be an objection by a respondent
against the appellant. It has all the trappings of an appeal. The mere distinction between the
two thus lies in the fact that whereas cross objections form part of the same record, cross
appeals are two distinct and independent proceedings.

WHO CAN FILE CROSS OBJECTIONS?

Cross objections can be filed by the respondent if:
1. he could have filed an appeal against any part of the decree14; or
12
http://www.lawzonline.com/bareacts/civil-procedure-code/order17-rule2-codeof-civil-procedure.htm
13
C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Eighth edition, 2017, p.502.
14
O. 41 R. 22(1)

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2. he is aggrieved by any finding in the judgment, even though the decree is in his favour.15
This right to file cross objections is substantive in nature and not merely procedural.16

AGAINST WHOM CROSS OBJECTIONS CAN BE FILED?

Ordinarily, cross objections may be filed only against the appellant. However, in exceptional
cases, one respondent may file cross objection against the other respondents or any of them,
for instance, when the appeal by some of the parties cannot effectively be disposed of without
opening the matter as between the respondents inter se, or in a case where the objections are
common as against the appellant and co-respondent. The principle that no decision can be
made against a person who is not a party to the proceedings applies to cross-objections also.
Hence, cross objections cannot be allowed against a person who is not a party to the appeal.

WHEN CROSS OBJECTIONS CAN BE FILED?

The provisions of Order 41 Rule 22 contemplate right to file cross objections only when an
appeal is filed and also when such appeal is admitted by the appellate court and notice is
issued on the respondent. Mere posting of preliminary hearing of an appeal is not enough.

AMBIT AND SCOPE

Where the respondent has filed cross objections, even if the original appeal is withdrawn or
dismissed for default, they will be heard and decided on merits. Where an appeal is
withdrawn or dismissed for default and the cross-objections are decided on merits, restoration
of appeal and rehearing will not automatically warrant rehearing of cross objections. But
where the appeal is dismissed as time barred, or has abated or is held to be not maintainable,
the cross objections cannot be heard on merits as they are contingent and dependent upon the
hearing of the appeal.
A cross appeal may be treated as cross objection only if such appeal is filed after the other
appeal and not if it is filed before that appeal.

LIMITATION
Cross Objections can be filed within one month from the date of service on the respondent or
his pleader of the notice of the date fixed for hearing of the appeal. The appellate court may,
at its discretion, extend the period within which cross objections can be filed. The discretion,
however, must be exercised judicially and on sufficient cause for delay being shown and is
open to review by the superior court.17

POWERS OF APPELLATE COURT

Section 107 and rules 23-29 and 33 of the order 41 specify the powers of the appellate
court while hearing first appeals. Section 107(1) (a) and rule 24 enables the court:
15
O. 41 R. 22(1) Explanation
16
Panna Lal v. State of Bombay, AIR 1963 SC 1516
17
C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Eighth edition, 2017, p. 505.

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1. To dispose off a case finally.

2. The general rule is that the case should, as far as possible, be disposed of on the evidence
on record and should not be remanded for fresh evidence.
3. Where the lower court has omitted to frame any issues, or to try any issue or to determine
any question of fact which may be essential to the right decision of the suit upon merits, the
appellate court may frame issues and refer them for trial to the lower court and shall direct
that lower court to take the additional evidence required.
4. The lower court shall try such issues and shall return the findings and the evidence to the
appellate court within the time fixed by the higher court.18
Section 107(1) (b) and Rule 23 and 23A talk about the remand of the suit. Remand means to
send back. Where the trial court has decided a suit on a preliminary point without recording
the findings on other issues and if the appellate court reverses the decree so passed, it may
send back the case to the trial court to decide other issues and determine the suit. This is
called remand. By passing an order of remand, the appellate court directs the trial court to
reopen and retry the case. The case of Kalipad Dinda v. Kartick Chandra19,the court
observed that the order for a remand can be made only if the following conditions are
satisfied:
1. The suit must have been disposed of by the trial court on a preliminary point. A point may
be called a preliminary point if it is such that the decision thereon in a particular way is
sufficient to dispose of the whole case, without the necessity for a decision on the other
points. Preliminary points may be questions of limitation or res judicata.
2. The decree must have been reversed under the appeal.
3. Other grounds available under Rule 23A.
In this case, suit for declaration of title was dismissed by the trial court, which disbelieved the
evidence. In appeal, the court passed an order for remand for the trial court to rehear the suit
giving opportunity to the parties to adduce fresh evidence. Against this order of remand, the
defendant filed a revision under Section 115. The preliminary objection was raised as to the
maintainability of the revision application on the ground that the appeal ought to have been
filed against the order passed by the appellate court. The court held that the revision
application is maintainable since the remand was made under the inherent powers of the court
under Section 151 of the code, and not under Order 41, rule 23. Hence, for this kind of an
order, only revision is allowed and not an appeal.
As a general rule, the appellate court shall decide an appeal on the evidence lead by the
parties before the trial court and should not admit additional evidence for the purpose of the
disposal of the suit. Section 107(1)(d), however, empowers an appellate court to take
18
http://www.shareyouressays.com/114345/legal-provisions-of-section-107-ofcode-of-civil-procedure-1908-c-
p-c-india-powers-of-appellate-court
19
AIR 1977 Cal. 3.

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additional evidence to require such evidence to be taken subject to the conditions laid down
in Rule 27 of the Order 41. They are as follows:
1. Where the lower court has improperly refused to admit evidence which ought to have been
admitted,
2. Where such additional evidence was not within the knowledge of the party or could not,
after exercise of due diligence, be produced by him at the time when the lower court passed
the decree, or
3. Where the appellate court itself require such evidence to pronounce judgment or for any
other substantial cause.
A very important provision is Section 107(2) of the Code, which says that apart from the
over and aforesaid powers, an appellate court has the same powers as an original court. This
provision is based on the general principle that an appeal is continuation of a suit and
therefore, an appellate court can do, while the appeal is pending, what the original court could
have done while the suit is pending. This aspect has been looked into in the leading case of
Praduman Kumar v. Virendra 20. The facts of the case were as follows:
The respondent in this case obtained permanent tenancy rights from the appellant in a piece
of land. Later the respondent transferred his tenancy rights to another person. Upon the non-
payment of the rent for 2 years, the appellant, the owner of the land, filed a suit for a decree
for ejectment and for the recovery of the arrears in rent in the court of the City Munsiff. The
respondents prayed that they should be given relief against the forfeiture of their tenancy
rights under Section 114 of the Transfer of Property Act. The trial judge held that the
conditions relating to deposits in the Court of rent of arrears, interest thereon, and costs of the
suit were not complied with and decreed the plaintiff’s claim. In appeal to the District court,
the tenant offered to clear all the possible dues and the costs. The court held that since the
tenant was willing to pay the amount, he should be given the benefit of Section 114. The
second appeal to the case was summarily dismissed by the High Court. The case went on to
appeal to the Supreme Court. The appellant contested that the court having the jurisdiction to
grant reprieve against the forfeiture lies with the court of the first instance and the second,
that the Trial court having given the tenants the opportunity to pay all the amounts, it was
beyond the power of the appellate court to give a second opportunity to them.
The Supreme Court negativing this contention held that there is no bar to the jurisdiction of
the appellate court in deciding the matter as it did, and hence the appeal was dismissed. It was
observed that the appellate court has all the powers as the trial court in deciding the matter
conclusively.

20
AIR 1969 SC 1349.

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DUTIES OF APPELLATE COURT

Along with its powers, the appellate court also has certain duties. These duties are listed as
follows:

A. DUTY TO DECIDE APPEAL FINALLY- It is the duty of the appellate court to

decide an appeal in accordance with law after considering the evidence as a whole. The
judgment of the appellate court must clearly show that it has applied its mind to the evidence
as a whole.21

B. DUTY NOT TO INTERFERE WITH DECREE FOR TECHNICAL

ERRORS- Section 99 of the Code enacts that a decree which is otherwise correct on merits
and us within the jurisdiction of the court should not be upset merely for technical and
immaterial defects. The underlying object of Section 99 is “to prevent technicalities from
overcoming the ends of justice and from operating as a means of circuitry of litigation.”22
The Supreme Court has held, “When a case had been tried by a Court on the merits and
judgment rendered, it should not be liable to be reversed purely on technical grounds, unless
it had resulted in failure of justice.”23

C. DUTY TO RECORD REASONS-Though an appellate court has power to dismiss

an appeal summarily, such power should be exercised sparingly and in exceptional
circumstances and that too, after recording reasons. Rule 31 of Order 41 enjoins an appellate
court to record reasons in support of its judgment. The judgment must be self-contained with
reasons in support of the findings arrived at by the court. It must discuss the evidence in the
light of points for determination and come to its own conclusion.

D. OTHER DUTIES- An appellate court should not dismiss an appeal in limine raising
triable issues. Similarly, when two cognate appeals are filed against the same judgment, both
the appeals should be taken up for hearing and decided together. Where an appeal on a
similar question or point of law is pending in a superior court, a subordinate court should not
proceed to decide the point, but should wait till the question is decided by the higher court.24

DECISION WHERE APPEAL HEARD BY TWO OR MORE JUDGES

Section 98 of the Code deals with this aspect. It states that where an appeal is heard by a
Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of
such Judges or of the majority (if any) of such Judges. Where there is no such majority which
concurs in a judgment varying or reversing the decree appealed from, such decree shall be
confirmed. Where the sanctioned strength of judges is there but only two judges are available
who differ from each other and refer the matter to the third judge, the appeal should wait till
the arrival of the third judge. It cannot be contended that in such an eventuality the order
21
State of TN v. S. Kumaraswami, AIR 1977 SC 2026.
22
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.
23
Ibid.
24
DK Trivedi v. State of Gujarat, AIR 1986 SC 1323.

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impugned in the appeal should be confirmed. The proviso states that where the Bench hearing
the appeal is composed of two or other even number of Judges belonging to a Court
consisting of more Judges than those constituting the Bench and the Judges composing the
Bench differ in opinion on a point of law, they may state the point of law upon which they
differ and the appeal shall then be heard upon that point only by one or more of the other
Judges, and such point shall be decided according to the opinion of the majority (if any) of
the Judges who have heard the appeal including those who first heard it. It is further clarified
that nothing in this section shall be deemed to alter or otherwise affect any provision of the
letters patent of any High Court. Letters Patent Appeal is an appeal from single bench of the
High Court to its Division Bench. CPC makes no provision for an appeal within the High
Court. Hence, it would depend purely on the rules of the High Court concerned. But section
100A makes it clear that no further appeal lies when the judgement is passed in first appeal
by the High Court.

JUDGMENT IN APPEAL
Rules 30 to 36 of Order 41 and Section 98 deals with this aspect. Section 98 has been already
discussed. Rule 30(1) states that the Appellate Court, after hearing the parties or their
pleaders and referring to any part of the proceedings, whether on appeal or in the Court from
whose decree the appeal is preferred, to which reference may be considered necessary, shall
pronounce judgment open Court, either at once or on some future day of which notice shall
be given to the parties or their pleaders.
Rule 30(2) states that where a written judgment is to be pronounced, it shall be sufficient if
the points for determination, the decision thereon and the final order passed in the appeal are
read out and it shall not be necessary for the Court to read out the whole judgment, but a copy
of the whole judgment shall be made available for the perusal of the parties or their pleaders
immediately after the judgment in pronounced.
Rule 31 deals with the contents, date and signature of judgment. It states that the judgment of
the Appellate Court shall be in writing and shall state
a) The points for determination;
b) The decision thereon;
c) The reasons for the decision; and
d) where the decree appealed from is reversed or varied, the relief to which the appellant is
entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the
Judges concurring therein.
Rule 32 deals as to what a judgment may direct. The judgment may be for confirming,
varying or reversing the decree from which the appeal is preferred, or, if the parties to the
appeal agree as to the form which the decree in appeal shall take, or as to the order to be
made in appeal, the Appellate Court may pass a decree or make an order accordingly.

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Rule 34 simply states that where the appeal is heard by more judges that one, any judge
dissenting from the judgment of the court shall state in writing the decision or order which he
thinks should be passed on the appeal, and he may state his reasons for the same.

DECREE IN APPEAL
Rule 35(1) states that the decree of the Appellate Court shall bear date the day on which the
judgment was pronounced.
Rule 35(2) states that the decree shall contain the number of the appeal, the names and
descriptions of the appellant and respondent, and a clear specification of the relief granted or
other adjudication made.
Rule 35(3) states that the decree shall also state the amount of costs incurred in the appeal,
and by whom, or out of what property, and in what proportions such costs and the costs in the
suit are to be paid. Another requirement of a decree is that the decree shall be signed and
dated by the Judge or Judges who passed it but where there are more Judges than one and
there is a difference of opinion among them, it shall not be necessary for any Judge dissenting
from the judgment of the Court to sign the decree.
Rule 36 states that certified copies of the judgment and decree in appeal shall be furnished to
the parties on application to the Appellate Court and at their expense.
Rule 37 states that a copy of the judgment and of the decree, certified by the Appellate Court
or such officer as it appoints in this behalf, shall be sent to the Court which passed the decree
appealed from and shall be filed with the original proceedings in the suit, and an entry of the
judgment of the Appellate Court shall be made in the register of civil suit.

APPEAL TO SUPREME COURT

Appeals to Supreme Court are governed by the provisions of Articles 132, 133 and 134-A of
the Constitution of India and Section 109 of the CPC with regard to civil matters. The
conditions under which an appeal could be filed in the Supreme Court:

 From a judgment, decree, or final order of the High Court;

 A case pertaining to a substantial question of law of general significance;
 The High Court opines it to be fit for the Supreme Court to deal with such a question.

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CONCLUSION
Appeals are recognized as statutory rights of persons aggrieved by any decision of an inferior
court in the interest of justice. First appeals are a form of appeal prescribed under the Code of
Civil Procedure. The period of limitation in case of an appeal to the first appellate authority is
90 days where it lies to the High Court. The important point to bear in mind when it comes to
making a statement to the effect that an appeal is a continuation of the suit is that it is more in
the interest of justice and adherence to the principles of fair trial that these provisions ought
to be seen. No doubt that the right to appeal is not an inherent right and has to be mandated
by the law, yet it is not that a very technical and mechanical view has to be taken into
account.
Finally, it can be concluded that the provisions of the CPC extensively deal with the
substantive as well as procedural aspects relating to all kinds of appeals, while making
express modifications in order to be accommodative of the more specific legislation.

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BIBLIOGRAPHY
Books
 Takwani C.K , Civil Procedure Code, 8th Edition, Lucknow, Eastern Book Company,
2017

Websites
 https://blog.ipleaders.in/first-appeals-under-the-code-of-civil-procedure-1908/
 https://www.latestlaws.com/articles/all-about-appeals-under-the-code-of-civil-
procedure/#:~:text=An%20appeal%20can%20be%20filed,the%20appeal%20in
%20the%20Court's
 https://www.legalbites.in/appeals-civil-procedure/
 http://www.legalserviceindia.com/article/l63-Appeals.html

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