Right of Appeal in Code of Civil Procedure

Right of Appeal in Code of Civil Procedure

Right of Appeal in Code of Civil Procedure, 1908 Introduction Appeal: 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”1. Stated simply, appeal is a proceeding by which the defeated party approaches a higher authority or court reversed. In Nagendra Nath Dey v. Suresh Chandra Dey2, speaking for the judicial Committee of Privy Council, Sir Dinsha Mulla stated: “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.” An appeal is thus a removal of a cause from an inferior court to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is a remedy provided by law for getting the decree of the lower court set aside. In other words, it is a complaint made to the higher court that the decree passed by the lower court is unsound and wrong. 3 It is “a right of entering a superior court and invoking its aid and interposition to redress an error of the court below”.4 Essentials: Every appeal has three basic elements: 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 original proceeding); and 3. A reviewing body ready and willing to entertain an appeal. 1 Chamber’s 21st Century Dictionary (1997) at p.59 2 (1931-32) 59 IA 283 : AIR 1932 PC 165 3 Nagendra Nath Dey v.Suresh Chandra Dey AIR (1932) PC 165; Shankar Ramchandra Abhyankar v.Krishnaji Dattatreya Bapat, (1969) 2 SCC 74. 4 Attorney General v. Sillem,(1864) 10 HLC 704 at p.715:11 ER 1200 at 1209 Page | 1

Right of Appeal in Code of Civil Procedure

Right of Appeal A right of appeal is not an inherent or natural right. 5 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. 6 It is a vested right and accrues to the litigant and exists as on and from the date the lis commences. Sometimes, appeal is a matter of right; sometimes it depends upon discretion of the court to which such appeal lies. In the latter category of cases, the right is to apply to the court to grant leave to file an appeal; for instance, an appeal to the Supreme Court under Article 136 of the Constitution of India. If a particular Act does not provide a right to appeal, it cannot be declared ultra vires only on that ground.7 Right of appeal is a statutory and substantive right. It is not merely a matter of procedure. Right of appeal is governed by the law prevailing at the date of the suit and not by law that prevails at the date of the decision or at the date of filling of the appeal. This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary implication and not otherwise. In Anant Mills Co. Ltd. v. State of Gujarat,8 speaking for the Supreme Court, Khanna, J. said: “It is well-settled by several decisions of this court that the rights 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.”

5 Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393 at p. 397; Rami Manprasad v. Gopichand (1973) 4 SCC 89 at p. 92: AIR 1974 SC 1126 at p. 1129 6 Anant Mills Co. Ltd. v. State of Gujarat, (1975) 2 SCC 175 at p. 202 7 Kartar Singh v. State of Punjab, (1994) 3 SCC 569 8 (1975) 2 SCC 175 at p. 202 Page | 2

Right of Appeal in Code of Civil Procedure

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 Kumar9 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 in regard to 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 original 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. 10 In Dayawati v. Inderjit11, 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 suit 9 AIR (1974) SC 1126 10 Ramankutty v. Avara, (1994) 2 SCC 642 at p. 645 11 AIR (1966) SC 1423: (1966) 3 SCR 275 Page | 3

Right of Appeal in Code of Civil Procedure

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.12 After referring to the various decisions on the subject, the Supreme Court laid down the following principles relating to the right of appeal in Garikapati v. Subbiah Choudhary.13 These are as follows: 1. That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. 2. The right of appeal is not just a matter of procedure but it is a substantive right.

12 Collector of Customs v. East India Commercial Co. Ltd., AIR (1963) SC 1124 at p. 1126 13 AIR (1957) SC 540 Page | 4

Right of Appeal in Code of Civil Procedure

3. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. 4. The right of appeal is a vested right and such a right to enter a superior Court the litigant and exists on and from the date the lis commences and,

accrues to

although it may be

actually exercised when the adverse judgment is pronounced, such right 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 filing of the appeal. 5. This vested right of appeal can be taken away only by a subsequent enactment, if it is so provided expressly or by necessary intendment and not otherwise. 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.14 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.15 Revisional jurisdiction is not wide enough to make the High Court a second court of first appeal.16 The High Court cannot, in exercise of revisional powers, substitute its own view for the view taken by a subordinate court.17 14 Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, AIR 1970 SC 1, (1970) 72 BOMLR 179, (1969) 2 SCC 74, 1970 1 SCR 322

15 Hari Shankar v. Rao Girdhari Lal Chowdhury, 1963 AIR 698, 1962 SCR Supl. (1) 933

16 Dattopant v. Vitthalrao, (1975) 2 SCC 246: AIR 1975 SC 1111 17 Girdharbhai v. Saiyed Mohd. Mirasaheb Kadri, (1987) 3 SCC 538 at p. 551 Page | 5

Right of Appeal in Code of Civil Procedure

In State of Kerala v. K.M. Charia Abdullah & Co.18, Court has highlighted the difference between the two jurisdictions in the following words: “There is an essential distinction between an appeal and a revision. The distinction is based on the differences implicit in the said two expressions. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a revision, whatever powers the reversional authority may or may not have, it has not the power to review the evidence unless the statute expressly confers on it that power.”

In Associated Cement Co. Ltd. v. Keshavanand 19, the Supreme Court stated, “It is trite legal position that appellate jurisdiction is coextensive with original court's jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and appellate court is free to reach its own conclusion on evidence untrammeled by any finding entered by the trial court. Reversional powers on the other hand belong to supervisory jurisdiction of a superior court. While exercising reversional powers the court has to confine to the legality and propriety of the findings and also whether the subordinate court has kept itself within the bounds of its jurisdiction vested in it. Though the difference between the two jurisdictions is subtle, it is quite real and has now become well recognised in legal provinces.” It is submitted that the following observations of Hidayatullah, J. in Hari Shankar v. Rao Girdhari Lal Chowdhury20 laid down correct law on the point. Speaking for the majority, His Lordship concluded: “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 in some way as, we find, has been done is second appeals arising under the Code of Civil Procedure. 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 18 AIR 1965 SC 1585 19 (1998) 1 SCC 687: SIR 1998 SC 596 20 AIR 1963 SC 698 Page | 6

Right of Appeal in Code of Civil Procedure

to law. Under s. 115 of the Code of Civil Procedure. the High Court's power are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other acts, the power is not so limited, and the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law and to pass such orders in relation to the case, as it thinks fit.”

First Appeal and Second Appeal The First Appeal can be admitted on the grounds – (1) question of fact; and also (2) question of law. The Second Appeal can be admitted only on the point of ‘substantial question of law’. The First Appeal can be entertained by subordinate Courts to District Judge’s Court and to High Courts. Example: An appeal from the District Munsiff Magistrate s Court or Subordinate Judge’s Court to the District Judge. The Second Appeal can only be entertained by the High Court. Sections 96 to 99-A, 107 and Order 41 deals with First Appeals. Sections 100 to 103 and Order 42 deal with Second Appeal. The Memorandum of first appeal must set out the grounds of objections to the decree appealed from. Since the second appeal is maintainable only when it involves a substantial question of law, a memorandum of second appeal must precisely state such question. It need not set out the grounds of objections to the decree appealed from. Conversion of Appeal into Revision If an appeal is preferred in a case in which no appeal lies, the court may treat the memorandum of appeal s a revision or vice versa. 21 Since there is no specific provision for such conversion, the court would be justified in invoking the inherent powers under Section 151 and in passing appropriate orders as may be necessary in the interests of justice. There is 21 Reliable Water Supply Service of India v. Union of India, (1972) 4 SCC 168 Page | 7

Right of Appeal in Code of Civil Procedure

nothing like a period of limitation for making an application for conversion of an appeal into revision or vice versa. All that is required to be seen is if the appeal or the revision had been filed within the time prescribed for the filing of the appeal, or the revision, as the case may be.22 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.23 Section 96 Section 96 of the Code confers a right of appeal. 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 original jurisdiction the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original 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 cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten]24 thousand rupees. Who may Appeal?

22 Bahori v. Vidya Ram, AIR 1978 All 299 23 Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369 (PC) 24 S.96 as amended by CPC (Amendment) Act, 1999 Page | 8

Right of Appeal in Code of Civil Procedure

Section 96 of the Code recognizes the right of appeal from every decree passed by any court exercising original jurisdiction. It does not refer to oe\r enumerate the persons who may file an appeal. But before an appeal can be filed under this section, 2 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.25 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 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.

It was observed in the case of Krishna Chandra Golder v. Mahesh Chandra Sahu 26, “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 the transferee of interest of such party, has been adversely affected by the decree provided his name was entered into record of suit. 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. 3. A guardian ad litem appointed by the court in a suit by or against a minor.27 4. Any other person, with the leave of the court, if he is adversely affected by the decree.28

25 State of Punjab v. Amar Singh, (1974) 2 SCC 70 at p. 89 26 (1905) 9 C.W.N. 584 27 S. 147, Or. 32 R. 5 Page | 9

Right of Appeal in Code of Civil Procedure

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.29 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.30

Who Cannot Appeal? 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. 31 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. 32Similarly, where a party has accepted the benefits under a decree of the court, he can be stopped from questioning the legality of the decree.33

28 State of Punjab v. Amar Singh, (1974) 2 SCC 70 29 Vithu v. Bhima, ILR (1891) 15 Bom 145 30 Nirmala Bala v. Balai Chand, AIR 1965 SC 1874 31 Amir Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC) 32 Protap Chunder v. Arathoon, ILR (1882) 8 Cal 455 33 Dexters Ltd. v. Hill Crest Oil Co., (1926) 1 KB 348 Page | 10

Right of Appeal in Code of Civil Procedure

As Scrutton, L.J.34 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.” 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. 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. Appeal: Nomenclature not Material The use of expression “appeal”, “first appeal” or “second appeal” is neither material nor decisive. It is the substance and not the form which is relevant. In Ramchandra Goverdhan Pandit v. Charity Commr35, a first appeal was filed in the High Court against an order passed by the Commissioner on an application under Section 72 of the Bombay Public Trusts Act, 195. The Supreme Court held that the appeal before the single judge of the High Court was in substance and in reality Second Appeal and Letters Patent Appeal was not maintainable against the “judgment” by the Single judge.

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. 34 See supra Note 33 35 (1987) 3 SCC273: AIR 1987 SC 1598 Page | 11

Right of Appeal in Code of Civil Procedure

The above remedies are concurrent and they can be prosecuted simultaneously or concurrently. As has been rightly said: “Where two proceedings or two remedies are provided by a statute, one of them must not be taken as operating in derogation of the other.”36 In an appeal against an ex parte decree, the appellate court is competent to go into the question of the propriety or otherwise 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 estoppels. 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.37 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 contest.38 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.39

Appeal against Preliminary Decree An appeal lies against a preliminary decree.40 A preliminary decree is as much a final decree. In fact, a final decree is but machinery for the implementation of a preliminary decree. Failure to appeal against a preliminary decree, hence, preludes the aggrieved party from 36 Ajudhia Prasad v. Balmukund, ILR (1866) 8 All 354 (FB) 37 Katikara Chintamani Dora v. Guntreddi Annamanaidu, (1974) 1 SCC 567 at pp. 584-85 38 Thakur Prasad v. Bhagwan Das, AIR 1985 MP 171 39 Banwari Lal v. Chando Devi, (1993) 1 SCC 581 40 Phoolchand v. Gopal Lal, AIR 1963 SC 992 at pp. 994-95 Page | 12

Right of Appeal in Code of Civil Procedure

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. 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-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. It would be relevant to refer to s. 97 of the Code of Civil Procedure which provides 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.41 Appeal against judgment 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.

Appeal against dead person No appeal can be instituted against a dead person. Such an appeal, therefore, can be regarded as a “stillborn” appeal. 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 41 Venkata Reddi and Others v. Pothi Reddi, 1963 AIR 992, 1963 SCR Supl. (2) 616 Page | 13

Right of Appeal in Code of Civil Procedure

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.42 Form of Appeal What to accompany memorandum (1) 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 decree appealed from and (unless the Appellate Court dispenses therewith) of the judgement on which it is founded: [Provided 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.] (2) Contents of memorandum- The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively. [(3) 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.]43

Grounds which may be taken in appeal

42 Bank of Commerce Ltd. v. Protap Chandra Ghose, AIR 1946 FC 43 Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977. Page | 14

Right of Appeal in Code of Civil Procedure

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: Provided 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. Rejection or amendment of memorandums (1) 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. (2) Where the Court rejects any memorandum, it shall record the reasons for such rejection. (3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment. Application for condonation of delay (1) 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 Pot preferring the appeal within such period. (2) 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, as the case may be. (3) 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.]44 44 Rule 3-A Page | 15

Right of Appeal in Code of Civil Procedure

Stay of Proceedings: Rules 5-8 Rule 5: Stay by Appellate Court (1) 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. 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. (2) Stay by Court which passed the decree- 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. (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied(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. (4) [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.

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Right of Appeal in Code of Civil Procedure

(5) 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.] Rule 6. Security in case of order for execution of decree appealed from (1) 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. (2) 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.45 Rule 8. Exercise of powers in appeal from order made in execution of decree46 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.

Summary Dismissal: Rules 11-11-A 45 Order XLI Rule 6 46 Rule 7 has been repealed by the A.O, 1937 Page | 17

Right of Appeal in Code of Civil Procedure

Rule 11- Power to dismiss appeal without sending notice to Lower Courts (1) 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. (2) 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 (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. (4) Where an Appellate Court, not being the High 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. Rule 11A-Time within which under rule 11 should be concluded Every appeal shall be heard under rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed. Procedure at Hearing: Rules 16-21 (a) Right to begin: Rule 16 (1) 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. (2) 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.

(b) Dismissal for default and restoration Rules 17-19

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Right of Appeal in Code of Civil Procedure

Rule 17. Dismissal of appeal for appellants’ default (1) 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. Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. (2) Hearing appeal ex parte- Where the appellant appears and the respondent does not appear the appeal shall be heard ex parte. Rule 18. Dismissal of and where notice not served in consequence of appellant’s failure to deposit costs On the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the Period fixed, the sum required to defray the cost of serving the notice or, if the notice is returned and it is found that the notice to the respondent has not been issued in consequence of the failure of the appellant to deposit, within any subsequent period fixed, the sum required to defray of the cost of any further attempt to serve the notice,] the Court may make an order that the appeal be dismissed. Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing. Rule 19. Re-admission of appeal dismissed for default Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 or rule 18, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. (c) Ex parte hearing and rehearing: Rules 17 and 21

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Right of Appeal in Code of Civil Procedure

Where the appellant appears and the respondent does not appear the appeal shall be heard ex parte.47 Rule 21: Re-hearing on application of respondent against whom ex parte decree made 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. (d) Addition of respondent: Rule 20 Rule 20: Power to adjourn hearing and direct persons appearing interested to be made respondents (1) 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. (2) 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.

Conclusion 47 R. 17(2) Page | 20

Right of Appeal in Code of Civil Procedure

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.

Appellant aggrieved by appeal decree is not entitled as or right to appeal from decree. The right to appeal must be given by statute. Section 9 confers on appeal litigant, independently of any statute, appeal right to institute appeal suit of civil nature in appeal court of law. So he has appeal right to apply for execution of appeal decree passed in his favour, but he has no right to appeal from appeal decree or order made against him, unless the right is clearly conferred by statute. Section 96 of the Code gives appeal right to litigant to appeal from an original decree. Section 100 gives him appeal right to appeal from an appellate decree in certain cases. Section 109 gives him right to appeal to the Supreme Court in certain cases. Section 104 gives him right to appeal from orders as distinguished from decrees. 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.

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