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WHAT IS APPEAL UNDER CPC (SEC 96-112)..


APPEAL   UNDER  CPC  (SEC 96-112)..

A   (SEC

P-96-

P112)
E   A   L..

(An Appeal Is Substantive Right Given By Statue)


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).

 Introduction;

Appeal has not been defined in Civil Procedure Code. It is, in fact, that complaint, which is made to some superior court against decision of subordinate court. Basic object of appeal is to test soundness of decision of lower court. Appeal may be filed against original decree, or against decree passed in appeal or against the order or in simplest way it can be described as “Where a person is aggrieved by decision or judgment of a Court, he can prefer appeal to appellate Court”.


Meaning of Appeal

The expression ‘appeal’ has not been defined in the code but it may be defined as Judicial examination of the decision of an inferior court. It is thus a remedy provided by law for getting the decree of the lower court set aside”
OR
“A legal proceeding by which a case is brought before a higher court for review of the decision of a lower court”
OR
“An application to a higher court for a decision of lower court to be reversed
OR
“Appeal means removal of a cause from inferior to a superior court for the purpose of a testing soundness of decision of an inferior court”.


Right of Appeal

Every person has given right 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 or statue. Appeal lies against a decree and not against a judgment as per Amendment of 2002 in CPC.
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”.


Who can prefer appeal?

1. Any party to suit adversely affected by the decree.
 2. In case of death of party, his legal representative.
 3. Guardian of a minor party.
 4. Any transferee of interest of party, who is bound by decree of the Court.
 5. A person who is not party to suit but who is aggrieved by decree or who is prejudicially affected by decree. But such person must receive leave of appellate Court to file appeal.

Numbers of appeal

1.      All parties who are aggrieved can prefer appeal.
2.       Therefore more than one appeal is possible from one judgment and decree.
3.       Where more appeals are filed, the appellate Court clubs such appeals and one judgment and decree is passed.


Kinds of Appeal:-

1.  First Appeal  (Sec 96, Order-41 of CPC)
2.  Second Appeal  ( Sec 100,100A, Order-42 of CPC)
3.  Appeal against Order  (Sec 104, Order 43)
4.  Appeal to Supreme Court  (Sec 109, Order 45)


1.    FIRST APPEAL(Sec 96, Order-41 of CPC):


An appeal shall lie from every decree( defined in sec 2(2) CPC) passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.
An appeal may lie against a decree if it has question of law, question of fact and mixed question of law and fact.

Sec 96- Appeal from original decree

• Generally from every original decree passed by any Court first appeal lies.
• From an ex-parte decree appeal may lie.
·     Appeal shall not lie from a decree passed with consent of parties.

1.  SECOND APPEAL  ( Sec 100,100A, Order-42 of CPC)


Under the Code of Civil Procedure, appeal to the High Court is referred to as the second appeal since the High Court is a second-highest court of appeal.
The decree/ judgment passed by any appellate Civil Court in the first appeal can be challenged by way of a second appeal before the High Court. Only if the case involves a substantial question of  law. The second appeal can be filed even against an exparte decree/ judgment of the first appellate court.

Sec 102.(amendment 2002)- No second appeal in certain cases.-“No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty- five thousand rupees.".

Substantial Question of Law: 

The High Court can exercise jurisdiction in the second appeal only if the case involves a substantial question of law. Firstly, it means that the High Court shall not look into the authenticity of the facts and shall not take evidence to prove such facts. Further, the question of law must be substantial.
In the matter of Santosh Hazari v. Purushottam Tiwari[1], the apex court observed that ‘substantial’ means having substance, essential, real, of sound worth, important or considerable. This meaning was also reiterated in the recent case of Kashmir Singh v. Harnam Singh[2]. All these judgments have been assimilated and a final test to decide the definition of ‘substantial question of law’ has been provided in the 2005 case of Govindaraju v. Mariamman[3] wherein the court, in clearest terms, held, “to be a substantial question of law, it must be debatable, not previously settled by law of the land or a binding precedent and should be such that answer to it would have a material bearing as to the rights of parties before the court”.


2. APPEAL AGAINST ORDER  (Sec 104, Order 43)


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. ... it is provided that miscellaneous appeals may also be filed against those order which under the rules are made appealable.
Appealable Order, Order 43 Rule 1: An Appeal will lie from the request under the arrangements under section 104, and cannot lie anywhere else other than this.

3. APPEAL TO SUPREME COURT(SEC 109,ORDER 45)

Supreme Court is the highest court of appeal in India. Appeals from every court present in the country ultimately go to the Supreme Court, if not settled at the lower courts. The appellate jurisdiction of the Supreme Court is enshrined in Article 132 and 133 of the Indian Constitution, 1950 and Section 109 and 112 of the Civil Procedural Code, 1908.
The content of the Article 133 and Section 109 and 112 are similar which generally provides for the conditions where an appeal would lie to the Supreme Court of India along with Order 45 Rule 3 which provides for the procedural part.
An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Article 134A.

Conditions for an appeal to the Supreme Court

Following are the conditions for appeal in the Supreme Court-
1.     When the judgement, decree or order passed by the High Court.
2.     When the issues in the case involve a substantial question of law.
3.     When the High Court deems it fit that case must be dealt with by the Supreme Court only.

Limitation to file Appeal:-

1.    For every appeal, there is a limited period, within which appeal should be filed. Such a limitation is provided under the Limitation Act, 1963.
2.     For appeal, in case of a decree passed by lower court in civil suit, the limitation is :
3.     Appeal to High Court - 90 days from the date of decree Or order.
4.     Appeal to any other court - 30 days from the date of Decree or order.
5.     In case there are more than one plaintiffs or defendants, then any one of them can file on appeal against all of them respectively.
6.     Merely because an appeal is filed, does not mean that the order or decree of lower court is stayed. In case of temporary stay of decree or order, it has to be specifically asked, and stay will operate only if court grants it.
7.     In case of execution of decree, the court, which passed the decree, can itself stay the execution for time being on sufficient reasons shown.
8.     The court may require the appellant to deposit some sort of security.
9.     The appellate court may, on the day fixed for hearing the appellant dismiss the appeal, or issue notice to the opposite party to appear on next day.
10.                        If on the first day of hearing, appellate court issues summons to the opposite party, then :It shall fix a date for next hearing, and such date shall be published in the court house.
11.                        Notice shall also be sent to the lower court, whose decree or order has been appealed.To appellant is required to file " Process Fee " which is very nominal in amount, and on such filing, the notice shall also be sent to opposite party.
12.                        In case of appeal, the one who files the appeal is known as appellant, and against whom it is filed, is known as "Respondent".

Conclusion:-


To conclude that appeal is a substantive right, and it is a matter inter parties. The question as to whether the appeal is competent or not can only be decided by the court hearing the appeal. Appeal may be filed against original or appellate decree passed by a court subordinate to High Court. Appeal only lies against a decree and not against Judgment. The right of appeal is a creation of statute. 

“We are not final because we are infallible, but we are infallible only because we are final”

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