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First Appeal in CPC

Updated: May 5

First Appeal in CPC


First Appeal in CPC

The term "appeal" remains undefined within the Code. According to dictionary definitions, "appeal" denotes the judicial reevaluation of a decision by a higher court concerning a decision made by a lower court.

In simpler terms, an appeal constitutes a legal process through which the party dissatisfied with a lower court's decision seeks recourse from a higher authority or court to overturn that decision. It involves transferring a case from a lower court to a higher one with the aim of scrutinising the validity of the lower court's decision.

Essentially, it serves as a legal remedy for challenging and overturning a decree issued by a lower court, essentially a complaint to the higher court asserting that the lower court's decree is erroneous and unjust.

An appeal embodies three fundamental components:

(i) A decision, typically a judgement rendered by a court or a ruling by an administrative authority;

(ii) A person aggrieved, often a party involved in the original proceedings, although not exclusively so; and

(iii) A reviewing body, prepared and willing to consider and assess the appeal.

Right to Appeal

The right of appeal is not an inherent or natural entitlement. It is firmly established that an appeal is established by statute, and unless clearly and expressly provided for in a statute, there is no inherent right to appeal. In some instances, the right to appeal is absolute, while in others, it hinges on the discretion of the court to which the appeal is directed.

In the latter scenario, the right entails applying to the court for permission to file an appeal, such as in the case of appeals to the Supreme Court under Article 136 of the Constitution of India. Absent specific provisions in an Act for the right of appeal, the Act cannot be deemed ultra vires solely on that basis.

Moreover, the right of appeal is substantive rather than merely procedural. It is a vested right that accrues to the litigant from the commencement of the legal proceedings. Although it may be exercised when an adverse judgement is delivered, its existence is governed by the law in force at the initiation of the suit or proceeding, not at the time of its resolution or the filing of the appeal.

This vested right can only be revoked by a subsequent enactment if expressly provided or impliedly necessitated, and not otherwise. For instance, if the law mandates the transfer of an appeal from a Single Judge to a Division Bench of the High Court, the absence of necessary rules for filing such an appeal should not nullify the right to appeal.

However, the substitution of a new forum for appeal should not be automatically inferred. As the right of appeal emanates from statute, conditions may be imposed by the statute for its exercise.

As highlighted in the case of Anant Mills Co. Ltd. v. State of Gujarat, the legislature has the authority to impose conditions for the exercise of the right of appeal, as long as these conditions are not unduly burdensome and do not render the right almost illusory.


Appeal: A Continuation of Legal Proceedings

An appeal is more than just a legal process; it's a continuation of the legal journey initiated in the lower court. When an appellate court issues a decree, it's essentially affirming or modifying the decree passed by the lower court.

In essence, an appeal constitutes a rehearing of the case, with the appellate court possessing the same powers and duties as the original court.

In the landmark case of Dayawati v. Inderjit, the Supreme Court elucidated that an appeal is the right to seek redress from a higher court for errors made by the lower court. However, it's crucial to note that an appeal merely reviews and corrects the proceedings already initiated by the lower court; it does not initiate a new legal process. The decision rendered by the appellate court becomes the operative decision, superseding that of the lower court.

Similarly, in Garikatpati Veeraya v. N. Subbiah Chaudhry, the Supreme Court underscored several principles concerning the right of appeal. It emphasised that the pursuit of a remedy through legal proceedings, including appeals, constitutes a unified legal process.

The right of appeal is not merely procedural but substantive, safeguarding the litigants' interests throughout the entire course of the legal proceedings.

Moreover, the institution of a suit implies the preservation of all existing rights of appeal for the parties involved until the conclusion of the case. This right of appeal is vested from the commencement of the legal proceedings and remains governed by the law prevailing at the time of institution, not at the time of decision or appeal filing.

Any attempt to curtail this vested right can only be done through subsequent legislation, expressly or impliedly, and not otherwise.

Section 96 of the Code

Section 96 of the Code lays down the right of appeal, stating:

  1. Appeal from Original Decree: Unless expressly provided otherwise in the Code or any other prevailing law, an appeal is permissible from every decree issued by a court exercising original jurisdiction to the court authorised to hear appeals from such decisions.

  2. Appeal from Ex Parte Decree: An appeal may be filed from an original decree passed ex parte.

  3. Decree Passed with Consent: However, no appeal is admissible from a decree issued by the court with the consent of the parties.

  4. Appeal on Question of Law: Except on a question of law, no appeal is allowed from a decree in suits cognizable by Courts of Small Causes if the subject matter's amount or value does not exceed ten thousand rupees.


Who May Appeal?

Section 96 recognizes the right of appeal from every decree issued by a court with original jurisdiction. While it does not specify who may file an appeal, certain conditions must be met:

  1. The subject matter of the appeal must be a "decree," signifying a conclusive determination of the parties' rights regarding the suit's controversies.

  2. The party appealing must have been adversely affected by such determination.

Generally, only a party to the suit or their representatives-in-interest may appeal. However, a person not party to the decree or order may seek leave from the court to appeal if they are bound by the order, aggrieved, or prejudicially affected by it.

The test for determining an aggrieved person lies in whether they have a genuine grievance due to the order prejudicing their interests, pecuniary or otherwise.

Moreover, a decision cannot be deemed adverse unless it operates as res judicata against the individual in a future suit.

Therefore, the substance of the judgement and decree, rather than the form, is considered. The court may delve into the decree's essence to determine its effect on the party's rights.

Appeal Against Ex Parte Decree

When faced with an ex parte decree, the defendant holds the option to appeal against it under Section 96(2) of the Code. Alternatively, the defendant may also pursue the avenue of filing an application to set aside the ex parte decree.

Both avenues of redress are concurrent and may be pursued simultaneously, without one impeding the other. It's crucial to recognize that when a statute provides for multiple proceedings or remedies, they should not be interpreted as mutually exclusive; rather, they complement each other.

In an appeal against an ex parte decree, the appellate court possesses the authority to scrutinise the validity of the decree issued by the trial court. This includes assessing the propriety of the ex parte decree and determining whether it was justly rendered or not.

Therefore, the appellate court has the jurisdiction to delve into the circumstances surrounding the issuance of the ex parte decree and assess its fairness and appropriateness.

No Appeal Against Consent Decree

Section 96(3) unequivocally states that no appeal lies against a consent decree. This provision is rooted in the fundamental principle of estoppel.

It assumes that parties involved in legal proceedings can, either explicitly or implicitly, waive their right to appeal through a lawful agreement, compromise, or even by their actions. The essence of a consent decree is the mutual relinquishment of the parties' right to appeal.

Once it is established that a decree has been issued with the parties' consent, Section 96(3) comes into effect and binds them. It establishes an estoppel between the parties akin to a judgement resulting from a contested trial.

If one party asserts a compromise while the other contests its validity, the court is obligated to investigate and determine the legitimacy of the compromise. In such cases, the decree cannot be classified as a consent decree.

However, if there is a partial compromise leading to a decree in line with the compromise, that portion of the decree constitutes a consent decree and is not subject to appeal. It's important to note that this provision does not apply if the existence of the compromise itself is disputed, or if the compromise decree is challenged on the grounds of its lawfulness.

Appeals and Memorandum of Appeal: Requirements and Procedures

Sections 96 to 99-A establish the substantive law governing first appeals, while Order 41 outlines the associated procedures. It's important to distinguish between the terms "appeal" and "memorandum of appeal."

An appeal denotes the higher court's review of a lower court's decision, while the memorandum of appeal articulates the grounds on which this review is sought. The memorandum of appeal is necessary for adherence to limitation periods and court rules.

For an appeal to be considered validly presented, certain requirements must be met:

  1. It must be in the form of a memorandum, outlining objections to the decree appealed against.

  2. The appellant or their legal representative must sign it.

  3. It must be submitted to the court or its designated officer.

  4. The memorandum must be accompanied by a certified copy of the judgement.

  5. In cases of appeals against money decrees, the appellant must either deposit the decretal amount or provide security as directed by the court.

The memorandum of appeal should succinctly state objections to the decree under distinct heads, without elaboration or narrative, and should be numbered consecutively.

Rule 2 restricts the appellant from introducing new grounds of objection without court permission, ensuring that respondents are adequately informed of the case they will face during the appeal hearing.

While the appellate court has the authority to consider grounds not outlined in the memorandum of appeal, it must afford the affected party the opportunity to contest any new grounds raised. Preparation of the memorandum of appeal requires careful consideration of pleadings, issues, findings, judgement, and decree.

If the memorandum of appeal is improperly formatted, the court may reject it or return it to the appellant for amendment.

Rule 4 stipulates that when a decree is based on grounds common to all plaintiffs or defendants, any one of them may appeal against the entire decree, allowing the appellate court to modify the decree in favour of all parties concerned.

Condonation of Delay in Filing Appeals

Rule 3-A was introduced by the Amendment Act of 1976 to address situations where an appeal is filed after the expiration of the specified limitation period. According to this rule, such an appeal must be accompanied by an application explaining the reasons for the delay in filing.

Before the inclusion of Rule 3-A, it was common practice to admit appeals filed after the limitation period had expired, subject to objections regarding the limitation.

However, this practice was criticised by the Privy Council, emphasising the need for a procedure to determine the question of limitation before admitting the appeal. Rule 3-A was added to implement this recommendation.

The objective of Rule 3-A is two-fold:

  • firstly, to inform the appellant that a delayed appeal will not be entertained without an application explaining the delay, and

  • secondly, to notify the respondent that they may not need to prepare for the merits of the case initially, as the court must first address the application for condonation of delay.

While the provision is considered directory rather than mandatory, filing the memorandum of appeal without the accompanying application for condonation of delay is not necessarily fatal, as the defect can be rectified.

The Supreme Court has emphasised the humane aspect of the provision, recognizing that even vigilant litigants can make mistakes.

The court's focus should be on ensuring that genuine grievances are not permanently barred due to unintentional lapses. However, if the delay is due to gross negligence or lack of good faith on the appellant's part, condonation may not be granted.


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