First Appeals under CPC
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CPC project on first appeals...
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CODE OF CIVIL PROCEDURE II
PROJECT REPORT
TOPIC:
FIRST APPEALS & POWERS AND DUTIES OF APPELLATE COURT
SUBMITTED TO:
Dr. Karan Jawanda, Professor, UILS, Panjab University, Chandigarh.
SUBMITTED BY:
Anshul Singhal, 127/13, Section-C, 8th Semester, B. Com LL.B., UILS, Panjab University, Chandigarh.
PROJECT REPORT: CODE OF CIVIL PROCEDURE II
ACKNOWLEDGEMENT
The success and final outcome of this project required a lot of guidance and assistance from many people and I am extremely fortunate to have got this all along the completion of my project report. Whatever I have done is only due to such guidance and I would never forget to thank them. I am thankful to and fortunate enough to get constant encouragement, support and guidance throughout the completion. I am very much thankful to Dr. Karan Jawanda for her support and guidance, without which I won’t be able to accomplish this project work. I am thankful to my friends who helped me in collection of material. Lastly and most importantly, I would like to thank my parents and the almighty for moral support and constant supervision.
Anshul Singhal, 127/13.
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TABLE OF CONTENTS
S. NO.
PARTICULARS
Page No.
1.
ACKNOWLEDGEMENT
(i)
2.
TABLE OF CASES
(vi)
3.
INTRODUCTION
1
4.
APPEALS: INTRODUCTION
2
5.
o
Meaning
o
Object
o
Basic Elements
o
Right of appeal
o
Right to suit and right to appeal
o
Appeal is a continuation of suit
o
Doctrine of merger
o
Right of appeal: material date
FIRST APPEALS o
Statutory Provision
o
Who May Appeal?
o
Appeal by one plaintiff against another plaintiff appeal
6
by one defendant against another defendant o
Who cannot appeal?
o
Agreement not to appeal
o
Appeal against ex parte decree: section 96(2)
o
No appeal against consent decree: section 96(3)
o
No appeal in petty cases: section 96(4)
o
Appeal against preliminary decree
o
No appeal against final decree where no appeal against preliminary decree
o
Appeal against judgment and findings
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6.
7.
o
Appeal Against Dead Person
o
Limitation
o
Abatement of appeal
FORM OF APPEAL o
Form
o
Appeal and memorandum of appeal
o
Contents of memorandum of appeal
o
Rejection or amendment of memorandum
o
Grounds that may be taken in appeal
o
Condonation of delay
o
Reversal of whole decree
STAY OF PROCEEDINGS AND OF EXECUTION o
Stay by appellate court
o
Stay by court which passed the decree
o
Considerations while making stay order
o
Situations in which no stay order shall be passed
o
Security in case of order for execution of decree
13
17
appealed from
8.
9.
10.
PROCEDURE ON ADMISSION OF APPEAL o
Presentation of appeal
o
Summary dismissal
o
Date of hearing
PROCEDURE ON HEARING o
Right to begin
o
Dismissal for default and restoration
o
Ex parte hearing and rehearing
o
Addition of respondent
CROSS OBJECTIONS o
20
23
25
Introduction, meaning and nature
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o
Who Can File Cross Objections?
o
Against Whom Cross Objections Can Be Filed?
o
When Cross Objections Can Be Filed?
o
Ambit and scope
o
Form
o
11.
12.
o
Limitation Cross objection against finding
o
Procedure and court fees
o
Cross objections by indigent persons
o
Omission to file cross objections
POWERS OF APPELLATE COURT o
Power to decide a case finally
o
Power to remand
o
Power to frame issues and refer them for trial
o
Power to take additional evidence
o
Power to modify decree
o
Other powers
DUTIES OF APPELLATE COURT o
Duty to decide appeal finally
o
Duty not to interfere with decree for technical errors
o
Duty not to reappreciate evidence unless there is
30
36
material irregularity o o
13.
Duty to record reasons Other duties
DECISION WHERE APPEAL HEARD BY TWO OR MORE
40
JUDGES 14.
JUDGMENT IN APPEAL
41
15.
DECREE IN APPEAL
42
16.
APPEAL AND REVISION
43
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17.
CONCLUSION
44
18.
REFERENCES
(x)
o
Books Referred
o
Web Links Referred
o
Reports Referred
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TABLE OF CASES
S. NO.
CASE NAME & CITATION
PAGE NO.
1.
Adi Pherozshah Gandhi v. H.M. Seervai, AIR 1971 SC 385
2.
Ameer Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC)
8,9
3.
Anant Mills Co. Ltd. v. State of Gujarat, (1975) 2 SCC 175
3,4
4.
Arjan Singh v. Kartar Singh, AIR 1951 SC 193
34
5.
Balwant Singh v. State of MP, 1986 MPLJ 571
26
6.
Bank of Commerce Ltd. v. Protap Chandra Ghose, AIR 1946
11
7
FC 13
7.
Banwari Lal v. Chando Devi, (1993) 1 SCC 581
10
8.
Choudhary Sahu v. State of Bihar, AIR 1982 SC 98
28
9.
Collector of Customs v. East India Commercial Co. Ltd., AIR
5
(1963) SC 1124
10.
Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369 (PC)
11.
CST v. Vijai International Udyog, AIR 1985 SC 109
12.
Daji Saheb v. Shankar Rao, AIR 1956 SC 29
13.
Dattopant v. Vitthalrao, AIR 1975 SC 1111
43
14.
Dayawati v. Inderjit, AIR (1966) SC 1423
4
15.
Dexters Ltd. v. Hill Crest Oil Co., (1926) 1 KB 348
8
16.
DK Trivedi v. State of Gujarat, AIR 1986 SC 1323
39
17.
Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393
3,4
18.
Ganga Gobind Mundul v. Collector of Twenty-Four
34
5 39 8
Pergunnahs, (1867) 11 MIA 345 (PC)
19.
Garikapati Veerya v. N. Subbiah Chaudhary, AIR 1957 SC
3
540 FIRST APPEALS UNDER CPC
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20.
Girdharbhai v. Saiyed Mohd. Mirasaheb Kadri, (1987) 3 SCC
43
538
21.
Gogula Gurumurthy v. Kurimeti Ayyappa, AIR 1974 SC
32
1702
22.
Hari Shankar v. Rao Girdhari Lal Chowdhury, AIR 1963 SC
43
23.
698 K. Venkataramaiah v. A. Seetharama Reddy, AIR 1963 SC
34
1526
24.
Katikara Chintamani Dora v. Guntreddi Annamanaidu,
9
(1974) 1 SCC 567
25.
Kaushalya Devi v. Baijnath Sayal, AIR 1961 SC 790
11
26.
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340
36
27.
Krishna Chandra Golder v. Mahesh Chandra Sahu, (1905) 9
28.
CWN 584 Mahadev Tukaram v. Sugandha, AIR 1972 SC 1932
39
29.
Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54
35
30.
Mahavir Singh v. Naresh Chandra, AIR 2001 SC 134
34
31.
Malayath Veetil Raman v. C. Krishnan Nambudripad, AIR
31
7
1922 Mad 505
32.
MC of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008
33, 34
33.
Mona Panwar v. High Court of Judicature of Allahabad,
2
(2011) 3 SCC 496.
34.
N. Jayaram Reddy v. Revenue Divisional Officer, AIR 1979
25, 26
SC 1393
35.
Nagar Palika Parishad, Begumganj v. Ram Shankar Jain, AIR
13
2004 MP 54
36.
Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC
2
165
37.
Nanoo Gopinathan v. Neelakantan Balakrishnan, AIR 1990
26
Ker 197
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38.
Nirmala Bala v. Balai Chand, AIR 1965 SC 1874
39.
Nripjit Kaur v. Sardar Satinder Singh, AIR 1955 Punj 190
27
40.
Panna Lal v. State of Bombay, AIR 1963 SC 1516
25
41.
Phoolchand v. Gopal Lal, AIR 1967 SC 1470
10
42.
Protap Chunder v. Arathoon, ILR (1882) 8 Cal 455
8
43.
Radha Prasad v. Gajadhar Singh, AIR 1960 SC 115
37
44.
Ramankutty v. Avara, (1994) 2 SCC 642
45.
Rameshwar Prasad v. Shambehari Lal Jagannath, AIR 1963
8
4 35
SC 1901
46.
RS Lala Praduman v. Virendra Goyal, AIR 1969 SC 1349
35
47.
Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394
24
48.
Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya
43
Bapat, AIR 1970 SC 1
49.
Sikkim Subba Associates v. State of Sikkim, AIR 2001 SC
40
2062
50.
State of MP v. Pradeep Kumar, (2000) 7 SCC 372
15
51.
State of Punjab v. Amar Singh, (1974) 2 SCC 70
6
52.
State of Punjab v. Amar Singh, (1974) 2 SCC 70
7
53.
State of Punjab v. Jagdev Singh, AIR 1984 SC 444
38
54.
State of TN v. S. Kumaraswami, AIR 1977 SC 2026
32
55.
State of TN v. S. Kumaraswami, AIR 1977 SC 2026
36
56.
Sudha Devi v. M.P. Narayanan, AIR 1988 SC 1381
24
57.
Sumitra v. Maharaja, AIR 1963 HP 21
33
58.
Sunder Singh v. Narain Singh, 1969 SCD 900
30
59.
TD Gopalan v. Hindu Religious and Charitable Endowments,
37
AIR 1972 SC 1716
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60.
Thakur Prasad v. Bhagwan Das, AIR 1985 MP 171
10
61.
Vadlamudi Venkateshwarlu v. Ravipati Ramamma, AIR
25
1950 Mad 379
62.
Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992
10
Vishwa Nath v. Maharaji, AIR 1977 All 459
63. 64.
Vithu v. Bhima, ILR (1891) 15 Bom 145
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INTRODUCTION
Normally suit concludes by pronouncement of final judgment under Order 20 Rule 1. (Such judgment in view of its definition given under Section 2(10) means the statement given by the Judge on the grounds of the decree.) Thereafter, by virtue of Order 20 Rules 6 and 7 the decree shall be drawn which shall agree and be in accordance with the judgment and shall be signed by the judge on being satisfied about its correctness as such. The decree shall bear date, the day on which the judgment was pronounced. The main ingredient of the decree is operative portion of the judgment. According to Order 20 Rule 6 decree shall contain particulars of the claim and shall specify clearly the relief granted or other determination of the suit. Amount of costs are also to be stated therein. (Rules 6, 6-A and 7 of order 20 quoted at the end).1 So, if any party is aggrieved by such judgment and decree, he can appeal against such judgement and decree. He can even appeal against a preliminary decree. The first appeal may be claimed as of a statutory right whereas other appeals squarely rest on the discretion of the court. The statutory right of appeal accrues to a party on the date of institution of suit whereas it actually comes into existence when any adverse judgment is passed against any party to the suit and then only he can exercise it.
1
http://ijtr.nic.in/APPELLATE%20JURISDICTION.pdf assessed on 06-03-2017 at 23:32 p.m. FIRST APPEALS UNDER CPC
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PROJECT REPORT: CODE OF CIVIL PROCEDURE II
APPEALS: INTRODUCTION
MEANING
The expression “appeal” has not been defined in the Code. According to the dictionary meaning, “appeal” is “the judicial examination of the decision by a higher court of the decision of an inferior court”2. Any application by a party to an appellate court, asking to set aside or reverse a decision of a subordinate court, is an appeal within ordinary acceptation of the term. 3 In Nagendra Nath Dey v. Suresh Chandra Dey4, the Privy Council held: “There is no definition of appeal in the Code of Civil Procedure, but their lordships have no doubt that any application by a party to an appellate court, asking to set aside or reverse a decision of a subordinate court, is an appeal within the ordinary acceptation of the term …. In other words, it is a complaint made to the higher court that the decree passed by the lower court is unsound and wrong.
OBJECT
It is based on the principle that all men are fallible and judges are human beings who may commit a mistake. A judge who has not committed an error is yet to be born. The dictum applies to all Judges from lowest to highest courts. 5 Basic object of appeal is to test soundness of 6
decision of lower court. The Law Commission also observed, “An unqualified right of first appeal may be necessary for the satisfaction of the decretal litigant but a wide right of second appeal is more in the nature of luxury”.7
2
Chamber’s 21st Century Dictionary (1997) at p.59. Jatindra Kumar Das, “Code of Civil Procedure”, PHI Learning Pvt. Ltd. Delhi, ed. 2014, pg. 610. 4 AIR 1932 PC 165. 5 Mona Panwar v. High Court of Judicature of Allahabad, (2011) 3 SCC 496. 3
6
http://thelawstudy.blogspot.in/2015/05/appeal-and-its-kinds-under-cpc.html assessed on 06-03-2017 at 23:39 p.m. 7 Law Commission’s 44th Report, p. 84. FIRST APPEALS UNDER CPC
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BASIC ELEMENTS
Every appeal has three basic elements:8 1. A decision (usually a judgment of a court or the ruling of an administrative authority); 2. A person aggrieved (who is often, though not necessarily, a party to the srcinal proceeding); and 3. A reviewing body ready and willing to entertain an appeal.
RIGHT OF APPEAL
A right of appeal is not an inherent or natural right. 9 An appeal is a creature of the statute and there is no right of appeal unless it is given clearly and in express terms by a statute. 10 Whereas sometimes an appeal is a matter of right, sometimes it depends upon the discretion of the court. It is a vested right and accrues to the litigant and exists as on and from the date the liscommences and although it may be exercised when the adverse judgement is pronounced, such right 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 the decision or at the date of the filing of the appeal. 11 Right to appeal is statutory and substantive right. It is not merely appeal procedural right. Statutory right means must be conferred by statute unless it provides there won’t be any right to appeal. While right to institute a suit is not conferred by law. The right is inherent. But right to appeal has to be conferred by appeal statute. Where statute provides for right to appeal, it may constitute appeal machinery where shall the appeal lie. While the same isn’t true for right to sue. A civil suit has to be filed subject to condition of jurisdiction. An appeal is appeal substantive right. Right to appeal can’t be taken retrospectively because general rule of specific interpretation. Substantive law operates prospectively unless an express statute provides so. 12 The law of limitation may deprive a person of his right that he may enjoy to prefer an appeal by virtue of statutory provisions.13 This acts as an condition for filing an appeal that if you want to file an appeal, than you will have to file within the period of limitation.
8
C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013, p. 476. Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393. 10 Anant Mills Co. Ltd. v. State of Gujarat, (1975) 2 SCC 175. 9
11 12 13
Garikapati Veerya v. N. Subbiah Chaudhary, AIR 1957 SCassessed 540. http://www.legalserviceindia.com/article/l63-Appeals.html on 06-03-2017 at 23:27 p.m. Sukumar Ray, “The Code of Civil Procedure”, Universal Law Publishing Pvt. Ltd., Delhi, ed. 2008, pg. 282.
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In Anant Mills Co. Ltd. v. State of Gujarat,14 speaking for the Supreme Court, Khanna, J. said: “It is well-settled by several decisions of this court that the right of appeal is a creature of a statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory.”
RIGHT TO SUIT AND RIGHT TO APPEAL
There is a fundamental difference between suit and appeal and the same is being explained properly by J. Chandrachud in Ganga Bai v. Vijay Kumar15 in the following words: “There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one’s peril, bring a suit of one’s choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position regarding appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law.”
APPEAL IS A CONTINUATION OF SUIT
An appeal is a continuation of suit and hence, decree passed by an appellate court would be construed as decree passed by the Court of first instance. An appeal is virtually a rehearing of the matter. The appellate court possesses the same powers and duties as the srcinal court. Once again, the entire proceedings are before the appellate court which can review the evidence as a whole, subject to statutory limitations, if any, and can come to its own conclusion of such evidence.16 In Dayawati v. Inderjit17, speaking for the Supreme Court, Hidayatullah, J, stated: “An appeal has been said to be ‘the right of entering a superior Court and invoking its aid and interposition to redress the error of the Court below’. The only difference between a
14
(1975) 2 SCC 175.
15 16 17
AIR 1974 SCv.1126. Ramankutty Avara, (1994) 2 SCC 642. AIR (1966) SC 1423.
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suit and an appeal is that an appeal ‘only reviews and corrects the proceeding in a cause already constituted but does not create the cause’.” It is obvious that when an appeal is made, the appellate authority can do one of the following three things, namely: 1. It may reverse the order under appeal; 2. It may modify that order; and 3. It may merely dismiss the appeal and thus confirm the order of the lower court without any modification. In all three cases after disposal of the appeal by the appellate authority, the order so passed by the authority will be operative irrespective of the fact that this order has reversed, modified or confirmed the decision of the lower court. In fact it is the appellate decision alone which subsists and operative as well as capable of enforcement.18
DOCTRINE OF MERGER
The doctrine of merger is based on the principle that there cannot be at one and the same time, more than one operating decree governing the same subject matter. Hence, as soon as an appeal is decided by an appellate court, the decree of the trial court ceases to have existence in the eyes of the law and is superseded by a decree by an appellate court. In other words, the decree passed by the trial court merges with the decree of the appellate court.
RIGHT OF APPEAL: MATERIAL DATE
The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right 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 date of the filing of the appeal. 19
18 19
Collector of Customs v. East India Commercial Co. Ltd., AIR (1963) SC 1124. Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369 (PC).
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FIRST APPEALS
STATUTORY PROVISION
Section 96-99A, 107 and Order 41 of the Code confers the right of appeal from the court of first instance. It reads as under: 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 srcinal jurisdiction the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an srcinal 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 srcinal suit does not exceed ten thousand rupees.
WHO MAY APPEAL?
Section 96 of the Code recognizes the right of appeal from every decree passed by any court exercising srcinal jurisdiction. It does not refer to or enumerate the persons who may file an appeal. But before an appeal can be filed under this section, two conditions must be satisfied: 1. The subject-matter of the appeal must be a ‘decree’, that is, a conclusive determination of ‘the rights of the parties with regard to all or any of the matters in controversy in the suit”, and 2. The party appealing must have been adversely affected by such determination. 20 The ordinary rule is that only a party to a suit adversely affected by the decree or any of his representatives-in-interest may file an appeal. But a person who is not a party to a decree or
20
State of Punjab v. Amar Singh, (1974) 2 SCC 70.
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order may, with the leave of the court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it.21 The test whether a person is an aggrieved person is to see whether he has a genuine grievance because an order has been made which prejudicially affects his interests either pecuniary or otherwise.22 It was observed in the case of Krishna Chandra Golder v. Mahesh Chandra Sahu23, “the question who may appeal is determinable by the common sense of consideration that there can be no appeal where there is nothing to appeal about.”
From the above general principles, the following persons are entitled to appeal under this section: 1. Any party to the suit, who is adversely affected by the decree or if such party is dead, his legal representatives.24 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. 25 3. A guardian ad litem appointed by the court in a suit by or against a minor. 26 4. Any other person, with the leave of the court, if he is adversely affected by the decree.27
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. 28
21
Ibid. Adi Pherozshah Gandhi v. H.M. Seervai, AIR 1971 SC 385. 23 (1905) 9 CWN 584. 24 S. 146. 25 Ibid. 22
26 27 28
S. 147, 32v.Rule 5. Singh, (1974) 2 SCC 70. State ofOrder Punjab Amar Vithu v. Bhima, ILR (1891) 15 Bom 145.
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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.29
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. 30 Such an agreement must be clear and unambiguous. Whether a party has or has not waived his right of appeal depends upon the facts and circumstances of each case. 31 2. By Acceptance of Benefits. Similarly, where a party has accepted the benefits under a decree of the court, he can be stopped from questioning the legality of the decree. 32 As Scrutton, L.J.33 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. 34
29
Nirmala Bala v. Balai Chand, AIR 1965 SC 1874. Ameer Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC). 31 Protap Chunder v. Arathoon, ILR (1882) 8 Cal 455. 30
32 33 34
Dexters Ltd. v. Hill Crest Oil Co., (1926) 1 KB 348. Ibid. Daji Saheb v. Shankar Rao, AIR 1956 SC 29.
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AGREEMENT NOT TO APPEAL
A right of appeal is a statutory right. If a statute does not confer such right, no appeal can be filed even with the consent or agreement between the parties. But an agreement between the parties not to file an appeal is valid if it is based on lawful or legal consideration and if otherwise it is not illegal.35
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. 36 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
35 36
Ameer Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC). Katikara Chintamani Dora v. Guntreddi Annamanaidu, (1974) 1 SCC 567.
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contest.37 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 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.38
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 srcinal 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.
APPEAL AGAINST PRELIMINARY DECREE
An appeal lies against a preliminary decree. 39 A preliminary decree is as much a final decree. In fact, a final decree is but machinery for the implementation of a preliminary decree.40 Failure to appeal against a preliminary decree, hence, preludes 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. 41
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,
37 38
Thakur Prasad v. Bhagwan Das, AIR 1985 MP 171. Banwari Lal v. Chando Devi, (1993) 1 SCC 581.
39 40 41
Phoolchand v. Gopal Lal , AIR 1967 SC 1470. v. Pethi AIR 1963 SC 992. Venkata Reddy Reddy, Ibid.
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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 preliminary decree is regarded as embodying the final decision of the court passing that decree. 42 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. 43
42 43
Kaushalya Devi v. Baijnath Sayal, AIR 1961 SC 790. Bank of Commerce Ltd. v. Protap Chandra Ghose, AIR 1946 FC 13.
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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.44
ABATEMENT OF APPEAL
The provision relating to the abatement of suits apply in the same manner to the abatement of appeals.45
44 45
Art. 116, Limitation Act, 1963. O. 22 R. 11.
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FORM OF APPEAL
FORM
Order 41 Rule 1(1) states that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment. The proviso acts as an exception to this rule which states that where two or more suits have been tried together and a common judgement has been delivered therefor and two or more appeals are filed against any decree covered by that judgement, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgement.
It has been held that filing of certified copy is mandatory and only the appellate court may dispense with the filing of certified copy as enumerated in the proviso, otherwise filing of certified copy of the judgment is mandatory. 46
APPEAL AND MEMORANDUM OF APPEAL
The expressions appeal and memorandum of appeal denote two distinct things. An appeal is the judicial examination by a higher court of the decision of a lower court. The memorandum of appeal contains the grounds on which such judicial examination is invited. For purposes of limitation and for purposes of the rules of the court, a memorandum of appeal is required to be filed.
CONTENTS OF MEMORANDUM OF APPEAL
Order 41 Rule 1(2) gives the contents of a memorandum and it states that the memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree
46
Nagar Palika Parishad, Begumganj v. Ram Shankar Jain, AIR 2004 MP 54.
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appealed from without any argument or narrative; and such grounds shall be numbered consecutively. Sub Rule 3 was added in 1976 and it lays down an additional requirement in case of money decrees. It states where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.
REJECTION OR AMENDMENT OF MEMORANDUM
It is pertinent here to note Rule 3 of Order 41 which deals with the rejection and amendment of memorandum and it states that where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. Where the Court rejects any memorandum, it shall record the reasons for such rejection. 47 Where a memorandum of appeal is amended, the Judge or such officer as he appoints in this behalf, shall sign or initial the amendment.48
GROUNDS THAT MAY BE TAKEN IN APPEAL
Rule 2 deals with the grounds that may be taken in appeal and grounds on which the court can base its judgment. It states that the appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule. The object of this rule is simply that the opposite party should not be taken by surprise. It proviso states that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.
47 48
O. 41 R. 3(2). O. 41 R. 3(3).
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CONDONATION OF DELAY
Rule 3A of Order 41 which was added by the Amendment Act of 1976 deals with condonation of delay. It states that when an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice hereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under rule 11 or rule 13. 49 Where an application has been made under sub-rule (1) the Court shall not make in order fact the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal.50 The Hon’ble Supreme Court has observed in State of MP v. Pradeep Kumar,51 that the object of enacting Rule 3-A in Order 41 of the Code seems to be twofold. First is, to inform the appellant himself who filed a time barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the court will deal with application for condonation of delay as a condition precedent. However, the court further held that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without accompanying the application to condone delay the consequence cannot be fatal. Thus, the provision is merely directory and not mandatory and any such defect is curable and not fatal.
49 50 51
O. O. 41 41 R. R. 3A 3A (2). (3). (2000) 7 SCC 372.
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REVERSAL OF WHOLE DECREE
The general rule is that on an appeal by one of the several plaintiffs or defendants, an appellate court can reverse or vary the decree of the trial court only in favour of the party appealing. Rule 4 is an exception to this principle. It confers on the court the power to make an appropriate order needed in the interests of justice by reversing or varying the decree in favour of all the plaintiffs or defendants. Rule 4 is thus based on the following two principles: 1. To give the appellate court full power to do justice to all parties, whether before it or not. 2. To prevent contradictory decisions in the matter in the same suit.
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STAY OF PROCEEDINGS AND OF E XECUTION
STAY BY APPELLATE COURT
Rule 5 of Order 41 makes it clear that there shall be no automatic stay of proceedings and of execution until and unless there are express orders from the Appellate court. It states that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. 52 It’s explanation states that an order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.
STAY BY COURT WHICH PASSED THE DECREE
Rule 5(2) states that where an application is made for stay of execution of an appeal able decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.
CONSIDERATIONS WHILE MAKING STAY ORDER
Rule 5(3) states that no order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied that:
52
O. 41 R. 5(1).
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a) that substantial loss may result to the party applying for stay of execution unless the order is made; b) that the application has been made without unreasonable delay; and c) that security has been given by the applicant far the due performance of such decree or order as may ultimately be binding upon him. Sub Rule 4 states that subject to the provisions of sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application.
SITUATIONS IN WHICH NO STAY ORDER S HALL BE PASSED
Rule 5(5) states that notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.
SECURITY IN CASE OF ORDER FOR EXECUTION OF DECREE APPEALED FROM
Rule 6(1) states that where an order is made for the execution of a decree from which an appeal is pending, the Court which passed the decree shall, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any property which may be or has been taken in execution of the decree or for the payment of the value of such property and for the due performance of the decree or order of the Appellate Court, or the Appellate Court may for like cause direct the Court which passed the decree to take such security. Rule 6(2) states that where an order has been made for the sale of immovable property in execution of a decree and an appeal is pending from such decree, the sale shall, on the application of the judgement-debtor to the Court which made the order, be stayed on such terms as to giving security or otherwise as the Court thinks fit until the appeal is disposed of. 53
53
Order XLI Rule 6
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EXERCISE OF POWERS IN APPEAL FROM ORDER MADE IN EXECUTION OF DECREE
Rule 8 states that the powers conferred by rules 5 and 6 shall be exercisable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree. This rule has been added to avoid any confusion when the appeal is from an order and not from an appeal.
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PROCEDURE ON ADMISSION OF APPEAL
PRESENTATION OF APPEAL
Rule 9 and 10 of Order 41 deal with presentation of appeals, and these are enumerated as follows: 9. Registry of memorandum of appeal
(1) Where a memorandum of appeal is admitted, the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose. (2) Register of Appeals —Such book shall be called the Register of Appeals. 10. Appellate Court may require appellant to furnish 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 appellant security for the costs of the appeal, or of the srcinal suit, or of both: Where appellant resides out of India- Provided that the Court shall demand such security in all cases in which 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 within such time as the Court orders, the Court shall reject the appeal.
SUMMARY DISMISSAL
Rule 11 deals with the power of the appellate court to dismiss an appeal summarily. This rule refers to a stage after the memorandum of appeal has been filed and the appeal has been registered under Rule 9. An appeal is generally dismissed summarily when the court sees no substance in it. FIRST APPEALS UNDER CPC
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Sub Rule (1) describes the manner in which a summary dismissal can be made. It states that the Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. Sub Rule (2) states that if on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. The word may shows that the court has discretion in the matter and is not bound to dismiss the appeal for default of appearance. 54 The court may even adjourn the matter to another date. However, the appeal so dismissed under this rule can be restored on showing of sufficient cause.55 The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.56 Where an Appellate Court, not being the Hi gh Court, dismisses an appeal under sub rule (1), it shall deliver a judgement, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgement.57 Rule 11A prescribes the time within which hearing under rule 11 should be concluded and it states that every appeal shall be heard under rule 11 as expeditiously as possible and endeavor shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed.
DATE OF HEARING
Rule 12 and 14 of Order 41 deal with this aspect and they read as follows: 12. Day for hearing appeal
(1) Unless the Appellate Court dismisses the appeal under rule 11, it should fix a day for
54
C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013, p. 498.
55 56 57
O. O. 41 41 R. R. 19. 11(3). O. 41 R. 11(4).
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hearing the appeal. (2) Such day shall be fixed with reference to the current business of the Court, the place of residence of the respondent, and the time necessary for the service of the notice of appeal, so as to allow the respondent sufficient time to appear and answer the appeal on such day. 14. Publication and service of notice of day for hearing appeal
(1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice. (2) Appellate Court may itself cause notice to be served —Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to. (3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal. (4) Notwithstanding anything to the contrary contained in sub- rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal. (5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it.
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PROCEDURE ON HEARING
RIGHT TO BEGIN
The appellant has the right to begin. Rule 16(1) states that on the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. Rule 16(2) states that the Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal and in such case the appellant shall be entitled to reply.
DISMISSAL FOR DEFAULT AND RESTORATION
Rule 17(1) states that where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. The explanation states that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. The appeal can however be restored by following the procedure laid down under Rule 19.
EX PARTE HEARING AND REHEARING
Where the appellant appears and the respondent does not appear the appeal shall be heard ex parte.58 Rule 21 prescribes the procedure for re-hearing on application of respondent against whom ex parte decree made and states that where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.
58
O. 41 R. 17(2).
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However, no ex parte decree should be passed by the court except on highly reliable evidence. 59
ADDITION OF RESPONDENT
Rule 20 states that where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, 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 to a future day to be fixed by the Court and direct that such person be made a respondent. Sub Rule (2) further states that no respondent shall be added under this rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit. It has also been held that over and above rule 20, the appellate court has the inherent power to add a party as respondent or to transpose a party from one category to another. 60
59 60
Sudha Devi v. M.P. Narayanan, AIR 1988 SC 1381. Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394.
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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.61 One cannot treat an objection b y 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.62 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.63
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 decree64; or 2. he is aggrieved by any finding in the judgment, even though the decree is in his favour.65 This right to file cross objections is substantive in nature and not merely procedural. 66
61
C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013, p.502. Vadlamudi Venkateshwarlu v. Ravipati Ramamma, AIR 1950 Mad 379. 63 N. Jayaram Reddy v. Revenue Divisional Officer, AIR 1979 SC 1393. 62
64 65 66
O. O. 41 41 R. R. 22(1). 22(1) Explanation. Panna Lal v. State of Bombay, AIR 1963 SC 1516.
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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.67 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. 68
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.69 Mere posting of preliminary hearing of an appeal is not enough.70
AMBIT AND SCOPE
Where the respondent has filed cross objections, even if the srcinal appeal is withdrawn or dismissed for default, they will be heard and decided on merits. 71 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. 72 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.73
67
Ibid. C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013, p. 504. 69 Balwant Singh v. State of MP, 1986 MPLJ 571. 70 C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013, p. 504. 68
71 72 73
O. 41 R.Gopinathan 22(4). v. Neelakantan Balakrishnan, AIR 1990 Ker 197. Nanoo N. Jayaram Reddy v. Revenue Divisional Officer, AIR 1979 SC 1393.
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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. 74
FORM
Cross Objections shall be in the form of a memorandum of appeal and they should be served on the party affected thereby or his pleader. 75
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. 76 The appellate court may, at its discretion, extend the period within which cross objections can be filed.77 The discretion, however, must be exercised judicially and on sufficient cause for delay being shown and is open to review by the superior court.78
CROSS OBJECTION AGAINST FINDING
Explanation to Rule 22(1) of Order 41 was added in 1976 and it reads as follows: A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent. The position, however, of filing an appeal against finding has remained as it was before the amendment.
74 75
Nripjit Kaur v. Sardar Satinder Singh, AIR 1955 Punj 190. O. 41 R. 22(2).
76 77 78
O. 41 R.Nath 22(1). v. Maharaji, AIR 1977 All 459. Vishwa C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013, p. 505.
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PROCEDURE AND COURT FEES
The appeal and cross objections should be heard together and they should be disposed of by a common judgment incorporating the decisions on both. This approach seeks to avoid contradictory and inconsistent decisions on the same questions in one and the same suit. Court fees is payable on cross objection like that on memorandum of appeal, as it is like an appeal.
CROSS OBJECTIONS BY INDIGENT PERSONS
Rule 22(5) reads as under: The provisions-relating to appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule.
OMISSION TO FILE CROSS OBJECTIONS
A party in whose favour a decree has been passed has a substantive and valuable right which should not be lightly interfered with. As an ordinary rule, in absence of a cross appeal or a cross objection by a respondent, the appellate court has no power to disturb the decree of the lower court so far as it is in favour of the appellant. This is however subject to the provisions under Order 41 Rule 33.79 It reads as follows: 33. Power of Court of Appeal
The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two
79
Choudhary Sahu v. State of Bihar, AIR 1982 SC 98.
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or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order.
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POWERS OF APPELLATE COURT
CPC gives wide powers to an appellate while deciding the case. The powers of an appellate court may be discussed as follows:
A. POWER TO DECIDE A CASE FINALLY
Section 107 (1) (a) and Rule 24 of Order 41 enables the Appellate court to decide the case finally. Rule 24 states that where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which Appellate Court proceeds. The general rule is that a case should, as far as possible, be disposed of on the evidence on record and should not be remanded for fresh evidence, except in rare cases.80
B. POWER TO REMAND
Remand means to send back. Rules 23 and 23A of Order 41 and section 107 (1) (b) deal with the power to remand of the appellate court. By passing an order of remand, an appellate court directs the lower court to reopen and retry the case. On remand, the trial court will remit the suit under its srcinal number in the register of civil suits and will proceed to determine it as per the directions issued by the appellate court. 81 An order of remand reverses the decision of the lower court and reopens the case for retrial by the lower court except in regard to the matters decided by the appellate court. 82
80 81 82
Sunder Singh v.“Civil Narain Singh, 1969 SCD 900. Book Company, Lucknow, Seventh edition, 2013, p. 509. C.K. Takwani, Procedure Code”, Eastern C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013, p. 511.
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An order for remand is appealable. 83 If the party aggrieved by an order for remand does not appeal therefrom, he cannot subsequently question its correctness under the inherent powers of the court u/s 151 of the Code. Rule 26A of the said order further states that where the Appellate Court remands a case under rule 23 or rule 23A, or frames issues and refers them for trial under rule 25, it shall fix a date for the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court as to further proceedings in the suit. After the order of remand, the trial court has to decide the matter as per the directions of the court. A case can be remanded back if the following conditions are satisfied: i)
The suit must have been disposed of by the trial court on a preliminary point
Rule 23 states that where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its srcinal number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the srcinal trial shall, subject to all just exceptions, be evidence during the trial after remand. A point can be said to be a preliminary point, if it is such that the decision thereon in a particular way is sufficient to dispose of the whole suit, without the necessity for a decision on the other points in the case.84 Such preliminary point may be one of fact or of law, but the decision must have avoided the necessity for a full hearing of the suit. ii)
The decree under appeal must have been reversed
No remand can be ordered under Rule 23 unless the decision of the lower court on the preliminary point is reversed in appeal.
83 84
O. 43 R. 1(u). Malayath Veetil Raman v. C. Krishnan Nambudripad, AIR 1922 Mad 505.
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iii)
Other grounds
Rule 23A, as inserted by amendment in 1976, states that where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. Even before the insertion of new rule 23A, it was held an order of remand can be passed, if it is necessary to do so in the interests of justice.85
C. POWER TO FRAME ISSUES AND REFER THEM FOR TRIAL
Rules 25 and 26 of Order 41 and section 107 (1) (c) deal with the power to frame issues and refer them for trial of the appellate court. Rule 25 states that where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.
Rule 26 states that such evidence and findings shall form part of the record in the suit and either party may file in the appellate court a memorandum of objections to any such finding of the lower court within a time fixed by the appellate court. The appellate court should hear the whole appeal and hearing should not be confined to the points on which the findings were called for.86 An order under this rule is not appealable. The main point of distinction between Rule 23 or 23A and Rule 25 is whereas whole case goes to the lower court under Rule 23 or 23A, only certain issues go to the lower in case of an order under rule 25.
85 86
State of TN v. S. Kumaraswami, AIR 1977 SC 2026. Gogula Gurumurthy v. Kurimeti Ayyappa, AIR 1974 SC 1702.
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D. POWER TO TAKE ADDITIONAL EVIDENCE
Rules 27-29 of Order 41 and Section 107 (1) (d) deal with the power of appellate court to take additional evidence. As a general rule, the appellate court shall decide an appeal on the evidence led by the parties before the trial court and should not admit additional evidence for the purpose of disposal of an appeal.87 Sub rule (1) of Rule 27 states that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. The basic principle of admission of additional evidence is that •
The person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance.
•
The party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence.
•
The additional evidence must be relevant for the determination of issue.
Rule 27 enumerates circumstances in which the appellate court may admit additional evidence, whether oral or documentary, in appeal, which are as under: i)
Where the lower court has improperly refused to admit evidence which ought to have been admitted, the appellate court may admit such evidence at the appellate stage.88 The expression ought to have been means should be admitted in exercise of sound discretion.89 Refusal on account of late production cannot be said to be unjustified.
ii)
Where the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, the appellate court can admit
87 88 89
MC41ofR. Greater v. Lala Pancham, AIR 1965 SC 1008. O. 27 (1) Bombay (a). Sumitra v. Maharaja, AIR 1963 HP 21.
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such evidence. Clause (aa) of sub Rule (1) of Rule 27 deals with this and was added by Amendment Act of 1976. iii)
Where the appellate court itself requires additional evidence to enable it to pronounce judgement or for any other substantial cause.90 The expression any substantial cause should be liberally construed so as to advance substantial justice between the parties.91 The true test is whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced.92 The ability to pronounce judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of the court delivering it. 93 It does not allow the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way.94 ‘
Wherever the appellate court admits additional evidence, it should record reasons for doing it.95 PC said, “…the statement of reasons may inspire confidence and disarm objection.” 96 Rule 28 deals with the mode of taking additional evidence and it states that wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court. Rule 29 deals with the points to be defined and recorded and it states that where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified.
E. POWER TO MODIFY DECREE
Rule 33 of Order 41 states that the Appellate Court shall have power to pass any decree and
90
O. 41 R. 27 (1) (b). K. Venkataramaiah v. A. Seetharama Reddy, AIR 1963 SC 1526. 92 Arjan Singh v. Kartar Singh, AIR 1951 SC 193. 93 Mahavir Singh v. Naresh Chandra, AIR 2001 SC 134. 91
94 95 96
MC41ofR. Greater O. 27(2). Bombay v. Lala Pancham, AIR 1965 SC 1008. Ganga Gobind Mundul v. Collector of Twenty-Four Pergunnahs, (1867) 11 MIA 345 (PC).
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make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. Its proviso then states that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order. Section 35A deals with compensatory costs in respect of false or vexatious claims or defences. The underlying object of Rule 33 is to enable the appellate court to do full and complete justice between the parties. This power is discretionary. But it should be properly exercised. The court should not refuse to exercise it on mere technicalities.97 The sweep of power under Rule 33 is wide enough to determine any question not only between the appellant and the respondent but also between the respondents and co-respondents. The court can pass any decree to meet the ends of justice. But the rule does not confer unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the trial court. Nor the appellate court will interfere with finding of fact.98 Such power is to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the various parties.99 F. OTHER POWERS
Section 107(2) of the Code enacts that over and above the aforesaid powers, an appellate court has the same powers as an srcinal court. This provision is based on the principle that appeal is continuation of the suit and therefore, an appellate court can do, while the appeal is pending, what the srcinal court could have done while the suit is pending.
97
100
Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54.
98 99
C.K. Takwani, “Civilv.Procedure Code”, Eastern Book Lucknow, Seventh edition, 2013, p. 522. AIRCompany, 1963 SC 1901. Rameshwar Prasad Shambehari Lal Jagannath, RS Lala Praduman v. Virendra Goyal, AIR 1969 SC 1349.
100
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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. 101
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.”102 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.”103
C. DUTY
NOT
TO
REAPPRECIATE
EVIDENCE
UNLESS
THERE
IS
MATERIAL
IRREGULARITY
An appeal is a continuation of a suit. Inasmuch as an appeal is a rehearing of the matter, the appellate court can reappreciate entire evidence and can arrive at its own conclusion. However, the appellate court will bear in mind a finding recorded by the trial court on oral evidence. It 101 102 103
State TN v.v.S.Chaman Kumaraswami, AIR1977 1954SC SC2026. 340. KiranofSingh Paswan,AIR Ibid.
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should not forget that the trial court had the advantage and opportunity of watching the demeanour of witnesses and hence, the trial court’s conclusions should not normally be disturbed. No doubt, the appellate court has the same powers as the srcinal court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been arrived at by the trial court by mainly appreciating oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is materially erroneous, contrary to well-established principles.104 In TD Gopalan v. Hindu Religious and Charitable Endowments,105 it was held that, “We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court.” In Radha Prasad v. Gajadhar Singh,106 it was held that, “The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the Trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a Trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the Trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the Trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the Trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved
104 105 106
C.K. 1972 Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013, p. 525. AIR SC 1716. AIR 1960 SC 115.
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primary facts the Court of Appeal is in as good a position as the Trial Judge and is free to reverse the findings if it thinks that the inference made by the Trial Judge is not justified.”
D. 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. In State of Punjab v. Jagdev Singh,107 the High Court allowed the petition of the detenu and set aside an order of detention passed against him. The reasons in support of the judgment were not recorded. The Supreme Court highlighting the importance of reasoned judgment held that, “We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.” Highlighting the duty of Supreme Court to record reasons the court held, “It may be thought that such orders are passed by this Court and therefore there is no reason why the High Courts 107
AIR 1984 SC 444.
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should not do the same. We would like to point out respectfully that the orders passed by this Court are final and no appeal lies against them. The Supreme Court is the final Court in the hierarchy of our courts. Besides, orders without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances. Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of the concerned statutes. We thought it necessary to make these observations in order that a practice which is not very desirable and which achieves no useful purpose may not grow out of its present infancy.”
E. OTHER DUTIES An appellate court should not dismiss an appeal in limine raising triable issues. 108 Similarly, when two cognate appeals are filed against the same judgment, both the appeals should be taken up for hearing and decided together.109 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. 110
108 109 110
Mahadev Tukaram v. Sugandha, AIR1972 1985SC SC1932. 109. CST v. Vijai International Udyog,AIR DK Trivedi v. State of Gujarat, AIR 1986 SC 1323.
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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 impugned in the appeal should be confirmed.111 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.
111
Sikkim Subba Associates v. State of Sikkim, AIR 2001 SC 2062.
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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 statea) 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. 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.
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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 srcinal proceedings in the suit, and an entry of the judgment of the Appellate Court shall be made in the register of civil suits.
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APPEAL AND REVISION
The revisional jurisdiction of a High Court is a part and parcel of the appellate jurisdiction of the High Court. When the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.112 The distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing one way or the other. The power to hear a revision is generally given to a superior Court so that it may satisfy itself that a particular case has been decided according to law. 113 Revisional jurisdiction is not wide enough to make the High Court a second court of first appeal.114 The High Court cannot, in exercise of revisional powers, substitute its own view for the view taken by a subordinate court.115
112
Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat , AIR 1970 SC 1.
113 114 115
Hari Shankar v. Rao Girdhari Lal Chowdhury v. Vitthalrao , AIR 1975 SC 1111. , AIR 1963 SC 698. Dattopant Girdharbhai v. Saiyed Mohd. Mirasaheb Kadri, (1987) 3 SCC 538.
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CONCLUSION
The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an application or petition to appeal higher Court for are consideration of the decision of appeal lower court. It is appeal proceeding for review to be carried out by appeal higher authority of appeal decision given by appeal lower one. In appeal is appeal creature of statute and right to appeal is neither an inherent nor natural right. In CPC, appeal has been made a substantive right and a person may appeal from srcinal decrees. Other rights such as that of second appeal and appeal to the Supreme Court have also been provided for in the Code. As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesn’t arise when adverse decision is given, but on the day suit is instituted i.e. proceedings commenced, right to appeal get conferred. Thus, it can be said the Right to appeal is appeal substantive right vested in parties from the date suit instituted. But this is always a conditional right except for appeal against srcinal decrees. Certain conditions have to be fulfilled before this right can be exercised.
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REFERENCES
BOOKS REFERRED:
1. C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013. 2. Jatindra Kumar Das, “Code of Civil Procedure” , PHI Learning Pvt. Ltd. Delhi, ed. 2014. 3. Mulla, “The Code of Civil Procedure”, LexisNexis, Gurgaon, 14th edition, 2010. 4. Sukumar Ray, “The Code of Civil Procedure” , Universal Law Publishing Pvt. Ltd., Delhi, ed. 2008.
WEB LINKS REFERRED:
1. http://www.academia.edu/6004824/Vijeth_CPC_Appeals_under_Civil_Procedure. 2. http://www.legalserviceindia.com/article/l63-Appeals. 3. http://ijtr.nic.in/APPELLATE%20JURISDICTION.pdf. 4. http://thelawstudy.blogspot.in/2015/05/appeal-and-its-kinds-under-cpc.html.
REPORTS REFERRED:
1. Law Commission’s 44th Report.
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