APPEALS ( section 96 to 112, order 41- 45) -CPC

Updated: May 20

INTRODUCTION- The provision relating to appeals is contained in Section 96 to 112 and Order XLI TO XLV Of the Code Of Civil Procedure and can be summarized as under:


a- First Appeal, sections 96 to 99-A, 107 and Order XLI

b- Section appeal, section 100 to 103, 108 and order XLII

c- Appeals from orders –section 104, 108 and order XLI

d- Appeal by Indigent person- Order XLII

e- Appeal to Supreme Court- Section 109 and Order 45

MEANING- The appeal means “ the Judicial examination of the decisions by a higher court of the decisions of an inferior court.

RIGHT TO APPEAL-

The right to appeal is a vested right. The right to appeal is a substantive right and an appeal is a creature of statute and there is no right of appeal unless it is given clearly in express terms by a statute. The appeal is a vested right and accrues to the litigant and exists as on and from the date the list commences and although it may be actually exercised when the adverse judgment is pronounced. The right of appeal is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the filing of the appeal. This vested right can be taken away only by a subsequent enactment if it so provides expressly or by necessary implication, and not otherwise.

FIRST APPEAL – SECTION- 96-99-A AND ORDER-XLI

APPEAL FROM ORIGINAL DECREE-

Section-96 of the code provides as:

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 to the court authorized to hear appeals from the decision of such court.

2- An appeal may from an original decree passed ex parte.

3- No appeal may 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 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.

WHO MAY APPEAL-

The following persons are entitled to prefer an appeal :

1- A party to the suit who is adversely affected by the decree (section- 96(1) ) or his legal representative. (section- 146)

2- A person claiming under a title party to the suit or a transferee of interests of such party, who, so far as interests are concerned, is bound by the decree, provided his entered on the record of the suit. (SECTION_146)

3- A guardian ad litem appointed by the court in a suit by or against a minor. (section-147 , order- 32, Rule- 5)

4- Any other person, with the leave of the court, if he is adversely affected by the decree.

ORDER- XLI – APPEAL FROM ORIGINAL DECREE-

FORM OF APPEAL; RULE 1 TO 4:

MEMORANDUM OF APPEAL: Contains the grounds on which the judicial examination is invited. In order that an appeal may be validly presented, the following requirements must be complied with:

A- It must be in the form of a memorandum setting forth the grounds of objections to the decree appealed from.

B- It must be signed by the appellant court or his pleader.

C- It must be presented to the court.

D- The memorandum must be accompanied by a certified copy of the decree.

E- The memorandum must be accompanied by a certified copy of the judgment unless the court dispenses with it.

APPEAL FROM APPELLATE DECREES ( SECTION 100 TO 103 AND ORDER 42)-

SECOND APPEAL-

1- Save as otherwise provided in the body of this code or by any other law for the time being in force, an appeal shall lie to the High court from every decree passed an appeal by any Court subordinate to the High court, if the High Court is, satisfied that the case involves a substantial question of law.

2- An appeal may lie under this section from an appellate decree passed ex- parte.

3- In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

4- When the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate such a person.

5- The appeal shall be heard on the question so formulated and the respondent and the respondent shall, after hearing of the appeal be allowed to argue that the case does not involve such a question.

SUBSTANTIAL QUESTION OF LAW- means a substantial question of law as between the parties in the case involved. A question of law is substantial as between the parties if the decision turns one way or the other on the particular way of law.

APPEAL FROM ORDERS- ( SECTION- 104 AND ORDER 43)

SECTION 104- orders from which appeal lies-

1- An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this code or by any law for the time being force, from no other orders;

a- An order under section- 35A (sec 104( 1) (ff))

b- An order under section- 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be (section 104 (1) (FFA))

c- An order under section 95 ( section 104(1)(g))

d- An order under any of the provision of the code imposing a fine or directing the arrest or detention in the civil prison of any except where such arrest and detention is in execution of a decree. (section- 104(1) (h)

e- An order made under rules from which an appeal is expressly allowed by rules: (section- 104(1)(i))

2- No appeal shall lie from any order passed in appeal under this section.

SECTION- 105

A- Save as otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction but, where a decree is appealed from, any error defect or irregularity in any order, affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal.

B- Notwithstanding anything contained in sub-sect(1) where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

SECTION 106: WHAT TO HEAR APPEALS;

Where an appeal from any order is allowed it shall lie to the court to which an appeal would belie from the decree in the suit in which such order was made, or where such order is made by a court ( not being a high court ) in the exercise of appellate jurisdiction then to the High court.

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