Saturday, 12 May 2018

Good article on appeal from original decree and orders

APPEALS FROM ORIGINAL DECREE: S 96-99A .Order 41 of CPC.

The word appeal has not been defined in the code. The term refers to the removal of cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. It is thus a remedy provided by law for getting the decree of lower court nullified, and is in fact,a complaint made to a higher court that the decree of lower court is unsound and wrong. An appeal must be preferred against
the whole decree and not any item or items in it. An appeal is only a continuation of original proceedings and it is a stage in the suit itself.

S 96 of CPC lays down four primary rules regarding appeals from original decree as follows:
1) Unless otherwise provided, an appeal lies from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from decisions of such a court.
2) An appeal can be even from an exparte decree.
3) However,no appeal lies from a consent decree.
4) Except on a question of law,no appeal lies from a decree in any suit cognizable by a small causes court,if value of subject matter of original suit does not exceed Rs. Ten Thousand.
In order to give a person a right of appeal under this section following two conditions must be satisfied:
1) The subject matter of appeal must be a decree, that is a conclusive determination of 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.


 It will be seen that an appeal lies U/S 96 only from a decree. No appeal lies from a mere finding.

When appeal can be filed against consent decree?
1) Where appeal is filed on the ground that it was not a decree passed with the consent of parties,as where lawyers of parties have consented without any authority from their respective clients.
2) Where consent decree was passed without an order recording compromise. The reason is that such recording is not a mere matter of form, but its absence deprives the party of a right of appeal against the order if it had been passed.
3) Where the appellant was not a party to consent decree and decree affects him prejudicially.

S 97 of CPC

Appeal is not permissible from final decree when there is not appeal from preliminary decree.

S 99 of CPC

No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction-
No decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any mis joinder, non joinder of parties or causes of action or any error ,defect or irregularity in any proceeding in the suit not affecting the merits of the case or the jurisdiction of court.
However S 99 does not apply to non joinder of a necessary party. Aim of S 99 is prevent technicalities from overcoming the ends of justice. In other words, a decision which is correct on the merits and is within the jurisdiction of court should not be upset merely for technical and immaterial defects.

S 104 of CPC
Orders from which appeal lies

S 105 of CPC:
No appeal lies from any order made by a court in the exercise of its original or appellate jurisdiction, but where a decree is appealed from ,any error,defect or irregularity in any order affecting the decision of the case,may be set forth as a ground of objection in the memorandum of appeal.



S 107 of CPC.Powers of appellate court
1) An appellate court shall have power-
A) to determine a case finally;
B) to remand a case;
C)to frame issues and refer them for trial;
D) to take additional evidence or to require such evidence to be taken.
2)The appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred on courts of original jurisdiction in respect of suits instituted therein.

O 41 Rule 1 to 37 of CPC lay down detailed rules governing appeal from original decree.


O 41 R 1 of CPC- Form of appeal-What to accompany memorandum

In case of common judgment ,appellate court may dispense with filing of more than one copy of judgment
O 41 R 2 of CPC- Grounds which may be taken in appeal

The appellant is not allowed to argue on any ground not set out in memorandum, unless he obtains leave of court to do so. However the decision of court is not to be confined to the grounds set out in appeal memo. In other words the court can rest its decision on other grounds also, provided that the party affected is given a sufficient opportunity to contest the case on that ground.

O 41 R 3-A of CPC
If appeal is presented after the expiry of limitation period,it should also be accompanied by an application for condonation of delay.

O 41 R 4 of CPC
One of several plaintiffs or defendants may obtain reversal of whole decree where it proceed on grounds common to all.

O 41 R 5 of CPC-
1) Stay by appellate court

2) Stay by court which passed the decree
No such order for stay shall be made unless it is satisfied-
A) that substantial loss may result to the party applying for stay of execution unless order is made;
B) that the application has been made without unreasonable delay; and
C) that security has been given by applicant for due performance of such decree or orders as may be ultimately be binding upon him.

O 41 R 11 of CPC- Power to dismiss appeal without sending notice to lower court.

O 41 R 16 of CPC- Right to begin
Hearing appellant and respondent

O 41 R 17 of CPC-
1) Dismissal of appeal for appellant's default
2)Hearing appeal exparte

O 41 R 19 of CPC- Re-admission of appeal dismissed for default

O 41 R 20 of CPC- Power to adjourn hearing and direct persons appearing interested to be made respondents.

O 41 R 21 of CPC- Re hearing on application of respondent against whom exparte decree is made.

O 41 R 22 of CPC
Upon hearing responndent may object to decree as if he had preferred a separate appeal
1) Any respondent though he may not have appealed from any part of decree, may not only support the decree,but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take any cross objection to the decree which he could have taken by any of appeal provided he has filed such objection in appellate court within one month from date of service on him or his pleader of notice of the day fixed for hearing of appeal or within such further time as the appellate court may see fit to allow.
2) Such cross objection shall be in the form of memorandum.
4) Even if appeal is withdrawn ,cross objection will be decided.

O 41 R 23 of CPC Remand of case by appellate court
Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and decree is reversed in appeal,the appellate court may 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 appeal is preferred, with direction to re-admit the suit under its original number in the register of civil suits and proceed to determine the suit; and evidence recorded during original trial shall be evidence during the trial after remand.

O 41 R 23-A of CPC -Remand in other cases

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 re-trial is considered necessary,the appellate court shall have the same power as it has under R 23.
Orders of remand can be divided in to two classes:
1) Appealable orders of remand: O 41 R 23 and O 43 R 1 of CPC.
2) Orders of remand which are not appealable O 41 R 25.

As regards the latter, they stand on same footing as any other order,and can be challenged in appeal from the final decree.
Read important judgment here:
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