Drafting of Memorandum of Appeal (Rough)

Drafting of Memorandum of Appeal Section 96 of the code of civil procedure, 1908 provides for appeal from original decree. But no appeal lies from a decree passed by the court with the consent of parties. First appeal is a valuable right and parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.1 A right of appeal must exist either under the specific provisions of the statuteor under the rules having the force of law. Remedy of appeal and more so the second appeal must be specifically provided by a statute

Murli Manohar, Art of Conveyancing and Pleading, 2nd ed., 2004, Eastern Book Company, Lucknow, at p. 208 Appeals as a subject may be studied conveniently under the following heads: 1. 2. 3. 4. 5. 6.

Appeals from Orders Appeals from Original Decrees Appeals to High Court Appeals to Supreme Court Appeals by Pauper Appeals under the other Acts

Orders from which appeal lies – Sec 104 of the Civil Procedure Code provides that “ It has also been provided in clause 2 of the section 104 of the CPC that no appeal shall lie from any order passed in appeal under section 104 of the Code. It has been provided in Order XLIII, Rule 1 of the CPC that an appeal shall lie from the following order under the provisions of Section 104 of the code—

Other order – Section 105 of the CPC lays down— What courts may hear appeal – Section 106 of the CPC provides that where an appeal from any order is allowed, it shall lie to the court to which an appeal would lie 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 the appellate jurisdiction, then to the High Court. Appeals from Original Decree What is a decree – Section 2(2) of the CPC defines decree as follows:

Cases in which appeal will lie from original decree – Section 96 of the CPC lays down:

1 Madhukar v. Sangram, AIR 2001 SC 2171.

Where any party who is aggrieved by a preliminary decree passed by the court, does not appeal from such decree, he shall be precluded from disputing the correctness of the preliminary decree in any appeal, which may be preferred from the final decree in the same suit. Form of appeal – every appeal is preferred in the form of a memorandum in which the grounds of objection to the decree from which appeal is being preferred should be set forth briefly but precisely. The memorandum of appeal should be signed by the appellant or his pleader and presented to the Appellate Court. The Memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate court dispenses therewith) of the judgment on which it is founded. Provided that where two or more suits have been tried together and a common judgment has been delivered therefore and to or more appeals are filed against any decree covered by that judgement, whether by the same appellants or different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.2 Explanation – the copy of the decree referred to in Sub Rule 1 of Rule 1 above shall include a deemed decree as provided in Order XX in clause (b) in sub-rule (2) of Rule 6-A. 3 Provided that the Court may, for sufficient reasons, accept a memorandum of appeal without a copy of the decree appealed from it if the counsel ...... Order XLI, Rule 1 Rejection or Amendment of Memorandum of Appeal – Order XLI, Rule 3 Grounds which may be taken in appeal – Order XLI, Rule 2, the appellant shall not .... Provided that the court shall not rest its decision on any other ground.... In case of several plaintiffs or defendants – Order XLI Rule 4 Security for Costs -- (1) the Appellate Court may in its discretion either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellate security for the costs of the appeal, or of the original suit, or of both: Provided that the court shall demand such security in all cases in hich the appellant is residing out of India and is not possessed of any sufficient immovable property within India other than the property (if any) to which the appeal relates. (2) Where such security is not furnished ithin such time on the court orders, the court shall reject the appeal. Hearing and Dismissal of the Appeal – the following sequence of procedure will be observed: 1. 2. 3. 4. 5.

The memorandum of appeal will be presented in the Appellate Court; The Appeal will be registered under Order XLI, Rule 9 of the CPC; The record of the lower court will be called for; The appeal will be put up for hearing under Order XLI, Rule 11 of the CPC; The Appellate Court will hear the appellant or his pleader if he appears on the day fixed for hearing;

2 Order XLI, Rule 1, Proviso, CPC, 1908. 3 Added by Act 104 of 1976, S. 87 (w.e.f. 1-2-1977).

6. Thereafter the Appellate Court may dismiss the appeal without— a. Sending notice to the court from whose decree the appeal is preferred; b. Serving notice on the respondent or his pleader; c. Notifying the dismissal of the appeal to the court from whose decree the appeal is preferred; It has been further provided in sub rule (4) of Rule 11 of the Order XLI of the CPC that where an Appellate Court, not being the High Court, dismisses an appeal under sub rule 1, it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. Poers of the Appellate Court – section 107 of the CPC lays down— Implications of the powers of the Appellate Court 1. Poer to determine a case finally --- Order XLI, Rule 24 2. Remand of a case – Order XLI, rule 23 3. Power to frame issues and refer them for trial to the court below – Order XLI Rule 25 4. Power to take additional evidence – Order XLI, rule 27

Appeal to High Court Section 100, Second appeal Bar to second appeal – pg 217 Appeals to supreme court

R. N. Chaturvedi, Pleadings, Drafting and Conveyancing, 4th ed., 2013, Central Law Publications, Allahabad, at p. 144 Introduction Any application by a party to an appellate court asking it to set aside or reverse a decisionof a subordinate court constitutes an appeal. The dictionary meaning of the word appeal is the “removal of the cause or a suit from an inferior court to a superior court for re-examination or review”. If the dictionary meaning of the word appeal is adopted, it cannot be said that merely by filing an application for leave to appeal, the cause or suit is removed from an inferior court to a superior court for re-examination or review. An application for grant of leave to appeal is only an application for grant of necessary permission to file an appeal. If the permission is granted, then only the applicant can file an appeal. Thus, making of an application for leave to appeal cannot be regarded as appeal itself. An appeal means actively or carefully listening to the grievance of the appellants in regard to the decision rendered by a subordinate Tribunal on rehearing. The essential requirement of an appeal is rehearing of a grievance on merits. Making ‘an appeal’ the equivalent of ‘Memorandum of appeal’ is not sound. Even under Order XLI of the CPC, the expressions ‘appeal’ and ‘memorandum of appeal’

are used to denote two distinct things. The appeal is the judicial examination, the memorandum of appeal contains the grounds on which the judicial examination is invited. Memorandum of Appeal – Order XLI, Rule 1, CPC deals with the form of appeal, what to accompany memorandum and contents of memorandum. The relevant provision read as under: