Introduction-

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. An appeal is appeal creature of statute and right to appeal is neither an inherent nor natural
right.
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.

Any person who feels aggrieved by any decree or order of the court may prefer an appeal in the
superior court if the appeal is provided against that decree or order. An appeal is a creature of the
statute and there is no right of appeal unless it is given clearly and in express terms. It is a vested
right and accrues to the litigant and exists as on and from the date the lies commences. The expression
“appeal”may be defined as the judicial examination of the decision by a higher court of the decision
of an inferior court1 . It means removal of a 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 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. The right to appeal must, at
this juncture, be compared and distinguished from a right to file a suit.2 As said, the right to appeal
is a statutory right and any such right must have the express authority of a law. The right to sue or to
file a suit is, however, an inherent right and no express authorization from any statute may be required
to institute a suit. It is enough that no statute expressly bars the institution of such suit. The appellate
court would give weight to that finding, but where disbelief is based upon comparison of the evidence
given, the appellate court can arrive at an independent decision.

History of Appeal3

Appellate courts and other systems of error correction have existed for many millennia. During the
first dynasty of Babylon, Hammurabi and his governors served as the highest appellate courts of the

1 Thakker, C.K., Civil Procedure Code, 3rd Edition, Eastern book Company, p - 260
2 (1931-32) 59 IA 283 : AIR 1932 PC 165
3 Paul Du Plessis, Borkowski's Textbook on Roman Law 82 (2015).
land. Ancient Roman law employed a complex hierarchy of appellate courts, where some appeals
would be heard by the emperor. Additionally, appellate courts have existed in Japan since at least the
Kamakura Shogunate (1185–1333 CE). During this time, the Shogunate established Hikitsuke, a high
appellate court to aid the state in adjudicating lawsuits. In the Eighteenth century, William Blackstone
observed in his Commentaries on the Laws of England that appeals existed as a form of error
correction in the common law during the reign of Edward III of England. Although some scholars
argue that "the right to appeal is itself a substantive liberty interest," the notion of a right to appeal is
a relatively recent advent in common law jurisdictions. In fact, commentators have observed that
common law jurisdictions were particularly "slow to incorporate a right to appeal into either its civil
or criminal jurisprudence. For example, the United States first created a system of federal appellate
courts in 1789, but a federal right to appeal did not exist in the United States until 1889, when
Congress passed the Judiciary Act to permit appeals in capital cases. Two years later, the right to
appeals was extended to other criminal cases, and the United States Courts of Appeals were
established to review decisions from district courts. Some states, such as Minnesota, still do not
formally recognize a right to criminal appeals.

In Nagendra Nath Dey v. Suresh Chandra Dey4 , 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. It is “a right of entering a superior court
and invoking its aid and interposition to redress an error of the court below”.

When a party to a decision of the court is not satisfied with the verdict and decides to appeal against
the decision, it is said to be an appeal. There are always people who feel cheated or disappointed by
a verdict of the court. These people seek relief from the judgment as they appeal in a higher court of
law for the reversal or modification of the verdict. An appeal is, therefore, a plea for a second
judgment on the same matter by the aggrieved party. In most judicial systems, an appeal is considered
a right of the people and a tool to seek redressal if a party feels it has been wronged by the decision

4 (1931-32) 59 IA 283 : AIR 1932 PC 165

of the court. 5An appeal is always preferred in a higher court of law. In case an appeal fails, a second
appeal can be filed. An appeal is always filed by one of the concerned parties.6

Essentials elements of appeal7

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.

Procedure Related to Appeal8

The appeal being the continuation of the suit is held not without any reason; it may be examined in
the light of the following propositions:

1. The appellate court has all the powers and has to do all those things necessary that a trial
court has and has to do. In this sense, even when the case goes on appeal, it is just the name that has
undergone a change; the form and substance still remain the same.

2. In the same vein as above, the appellate court has to do all that has been done by the trail
court in that particular case, and then either agree or disagree from the trial court.

3. Hence, even the appellate court has to write a judgement and pass a decree. In the event of
the court upholding the lower court’s decision, the appellate court may write down the same decree,
without changing it, and the decree will now be deemed to have been that of the appellate court.

4. Finally, the suit is not deemed to be “finally concluded” for matters of res judicata till the
appeals are over. This implies that it is deemed that the same suit is progress even while the appeals

are on. It is only when the courts have finally come to a conclusion, after all possible appeals have
been used and tried by the appellant, that the suit is said to have been conclusively decided.

The above said propositions point out, in essence, what is implied when it is said that the appeal is
a continuation of the suit. The various provisions relating to the appeals have already been stated in
the introduction to this work. A detailed look into these provisions at this juncture becomes
pertinent.

5 Attorney General v. Sillem,(1864) 10 HLC 704 at p.715:11 ER 1200 at 1209

6 Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, 2014,P,255
7 iBID
8 Order XLI of the Code of Civil Procedure,1908
Right of Appeal9

A right of appeal is not an inherent or natural right.10 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. 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. 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, 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.”

Comparison between Right to suit and right to appeal11

There is a fundamental difference between suit and appeal and the same is being explained properly
by J. Chandrachud in Ganga Bai v. Vijay Kumar 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.

9 Ganga Bai v. Vijay Kumar, (1974)

10 Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393 at p. 397
11 Dayawati v. Inderjit
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. In
Dayawati v. Inderjit , 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 and an
appeal is that an appeal ‘only reviews and corrects the proceeding in a cause already constituted but
does not create the cause’.”12

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.

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. 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.

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.

12 Ramankutty v. Avara, (1994) 2 SCC 642 at p. 645

 4. The right of appeal is a vested right and such a right to enter a superior Court accrues to the
litigant and exists on and from the date the lis commences and, 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

First Appeal and Second Appeal13

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
XLI deals with First Appeals. Sections 100 to 103 and Order XLII 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.14

Appeal from Original decree15

Section 96 of the code of Civil Procedure,1908 deals with 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.

13 Ibid
14 National Bank vs Sunil 45DLR 547
15 Section 96
(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] thousand rupees.

Who may Appeal?

Section 96 of the Code recognizes the right of appeal from every decree passed by any court
exercising original jurisdiction. 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.

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.16

It was observed in the case of Krishna Chandra Golder v. Mahesh Chandra Sahu , “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.”17

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.

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

16 Biscttits vs Prince Hotel, l2 BLC 169

17Krishna Chandra Golder v. Mahesh Chandra Sahu
Who Cannot Appeal?18

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.19 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.20 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.21

As Scrutton, L.J. 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.

Appeal by one Plaintiff against another Plaintiff22

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.23

Appeal by one Defendant against another Defendant24

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.25 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.26

Agreement not to Appeal27

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

18 ibid
19 Amir Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC)
20 Protap Chunder v. Arathoon, ILR (1882) 8 Cal 455
21 Dexters Ltd. v. Hill Crest Oil Co., (1926) 1 KB 348
22 ibid
23 Vithu v. Bhima, ILR (1891) 15 Bom 145
24l3 DLR 15
25 Nirmala Bala v. Balai Chand, AIR 1965 SC 1874
26 Joy vs Sita. 4 DLR 400
27 ibid
illegal.28With the leave of the court any ground can be urged before the court and particularly a
ground on a question of law can be urged provided the other side is heard without being prejudiced.29
Abduvs Tazlu. 48 DLR 361.

Appeal Against Ex Parte Decree30

Section 96(2) of the Code of Civil Procedure,1908 deals with Appeal Against Ex Parte Decree. The
defendant, against whom an ex parte decree has been passed, has the following remedies available
to him:31

(1) Apply to the court by which such decree is passed to set it aside: Order IX 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 XLVII 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. 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.”32

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 Decree33

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.34

2828 DLR (SC)

29 Abduvs Tazlu. 48 DLR 361
30 Anwara vs Shahttnetrctz.

43 DLR (AD) 156

31 Section 96(2)
32 Ajudhia Prasad v. Balmukund, ILR (1866) 8 All 354 (FB)
33 Section 96(3)
34 Katikara Chintamani Dora v. Guntreddi Annamanaidu, (1974) 1 SCC 567 at pp. 584-85
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. 35
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.

Appeals against Preliminary Decree36

An appeal lies against a preliminary decree. 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 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.37

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 it38. 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, 39 a
preliminary decree is regarded as embodying the final decision of the court passing that decree.40

Procedure-

 While filing an appeal, a memorandum of appeal must necessarily be submitted.

 A memorandum of appeal is a document containing the grounds on which such appeal is invited. It
is generally filed for the purposes of the court and for the purposes of limitation.
 Rules 1 and 2 of Order XLI lay down the requirements which must be complied with for a valid
memorandum of appeal which are as follows-

35 Thakur Prasad v. Bhagwan Das, AIR 1985 MP 171

36 ibid
37 Phoolchand v. Gopal Lal, AIR 1963 SC 992 at pp. 994-95
38Jobeda vs Kshenta' 8 DLR 258
39 Banwari Lal v. Chando Devi, (1993) 1 SCC 581
40 Venkata Reddi and Others v. Pothi Reddi, 1963 AIR 992, 1963 SCR Supl. (2) 616
(a) It must be in the form of a memorandum stating the grounds for filing the appeal.

(b) It must be signed by the appellant or his pleader.

(c) It must be presented to the court or any other officer appointed on its behalf.

(d) It must be accompanied by a certified copy of the decree.

(e) It must be accompanied by a certified copy of the judgment unless the same is dispensed with.

(f) Incase of a money decree, the appellant must deposit the decretal amount or the security, as per
the court’s discretion.

 As per Rule 2, the appellant shall not except with the leave of the court take any grounds of objection
other than those mentioned in the memorandum. This is so that the opposite party is given notice of
the objections raised.
 However, the court may suo moto decide to take such objections as it deems fit even though they
haven’t been specified in the memorandum, provided the opposite party is given sufficient
opportunity to contest such grounds.
 As per Rule 3, where the memorandum is not in correct form, the court may even reject or amend
the same. Where the memorandum is rejected, reasons shall be recorded by the court and where the
memorandum is amended; the judge must initial or sign the same.
 Rule4 provides that where there are more than one plaintiffs/defendants, and the decree proceeds
on grounds which are common to all, the court may reverse or vary such decree in favour of all such
persons.
 This rule thus gives the court the full power to do justice to all parties even where only one of
them files an appeal and not all of them are parties to such appeal.
 As the right to appeal is not a procedural right, the defence that one’s rights were adversely
affected as the appeal was not filed in an appropriate forum shall not be allowed.
 The appeal must be valued as well.
 Rule 9 of Order XLI states that the Court against whose decree the appeal is being made shall
entertain the Memorandum of appeal, make an endorsement thereon as to the date of presentation
and record the same in the register of appeals.
 However, there is no provision for transmission of such record from the trial court to the appellate
court.
 Rule 5 deals with stay of proceedings or execution of a decree or order in case of an appeal.
Generally speaking, there shall be no stay of such decree or order on the mere ground that there has
been an appeal unless the appellate court passes an order to that effect and gives sufficient cause for
the same.
 Such decree or order shall be stayed from the date of communication of the order of the appellate
court to the trial court. Further, in certain special circumstances even where the order of the appellate
court to stay the decree or order has not been received by the trial court, if the appellant makes a
sworn statement on affidavit that according to his personal knowledge the appellate court has infact
made such order, the proceedings or execution shall be stayed.
 Rule 5 also states that where an application for stay of execution of a decree has been made before
the expiration of the time for preferring an appeal, the Court which passes such decree may after
showing sufficient cause stay such execution.
 However, for stay of execution of decree in both these abovementioned cases, the following must
be shown-

(a) That the party asking for stay would suffer substantial loss if such order is not passed.

(b) The application for stay has been made without any unreasonable delay.

(c) Security has been given by the given by the applicant for the due performance of such order/decree
as may be binding on him later.

 The court may also stay the execution ex parte pending the hearing of the application for stay.
 However, there shall be no stay if the requisite security amount is not deposited with the court.
 Rule 10 states that the court on application made by the respondents may require the appellant to
deposit security for costs to be incurred for the appeal or the original suit or for both, either before or
after the respondent is called upon to appear and answer.
 In case of appellants who are not residents of India and have no substantial immovable property
in the country except probably for the one involved in such suit, security shall be demanded in all
cases.
 Where such security is not furnished within the requisite time period, the court shall reject the
appeal. However, an application to restore such appeal even after rejection may be made within a
period of 30 days from such rejection.
 The limitation act provides that the period of limitation for filing an appeal before the High Court
is 90 days from the date of the decree and in case of any other court, within 30 days from the date of
the decree.
 Rule 3-A of the CPC however states that delay in filing an appeal may be condoned if an application
stating reasons for the same and an affidavit are given to the court. If the court then wishes to allow
the appeal, it shall send out notices to the defendant.
 Where an application to condone such delay has been made, the appellate court shall not stay an
execution of a decree unless it decides to hear the appeal as under Rule 11.
 Further, under Rule 6, on an application made by the appellant, the appellate court may either on
its own or by directing the lower court order that security be taken for restitution of any property
taken in the execution of the decree or order payment of value of such property.
 Also,under this rule where under the original decree, sale of an immovable property has been
ordered, the appellate court may order stay of such sale as security till the time the appeal is disposed
off.
 The powers conferred under Rules 5 and 6 are exercisable not as regards an appeal from a decree
but an appeal from an order for execution of the decree. (Rule 8)
 Rule 11 deals with summary dismissal of appeal by the appellate court after hearing the appellant
or his pleader on the fixed day.
 The appeal may also be dismissed where the appellant does not appear before the court on the day
so fixed.
 The dismissal shall be notified to the court which originally passed the decree.
 Where the appellate court is not the High Court, it shall record its reasons for dismissing the appeal,
give a judgment on the same and draw up a decree.
 Every
appeal under this provision shall be heard within 60 days from the date of filing the
memorandum of appeal. (Rule 11-A)
 Where the appeal is not dismissed as under Rule 11, a day shall be fixed for hearing of the appeal
under Rule 12.For the same, a notice shall be issued which shall be affixed to the Appellate court
house and shall also be sent to the court from whose decree or order an appeal has been sought. (Rule
14)
 The lower court shall then serve the notice on the respondent in the same way as a summons is
served. However, the notice may even be served by the appellate court itself.
 The notice shall be accompanied by the memorandum of appeal.
 Itshall not be necessary to serve a notice of any incidental proceedings in the Appellate court on
the respondent unless he was impleaded the first time in the court or where he has appeared before
the court of first instance and filed his address for service or where he appears in appeal. However,
nothing shall bar such respondent from defending the appeal.

Procedure of Hearing-

 Where the appeal has not been dismissed summarily, a date for hearing the appellant shall be fixed.
Where the Appellate court does not dismiss the appeal at once, it shall hear the respondent as well.
 Where the appellant fails to appear on the day fixed, the appeal shall be dismissed. Where the
respondent does not appear, the Appellate court shall decide against him ex parte. (Rule 17)
 However, where an appeal has been dismissed under rules 11 or 17, the appellant may apply to the
court to re-admit the appeal and where it is shown that there was sufficient cause for non-appearance,
the court shall allow the appeal to be admitted again.
 Where the appeal has been decided ex parte, the respondent may apply to the court to re-hear the
appeal and the court will allow the same where the respondent proves that the notice was not duly
served on him or that he was prevented due to some other sufficient cause from appearing.
 The main difference between a cross appeal and a cross objection is that a cross appeal involves
two distinct and independent proceedings while cross objections are taken in the same proceeding.
 Cross objections can be filed by a respondent where he could have appealed against any part of the
decree or where he is aggrieved by a finding in the judgment even though the decree is in his favour
due to some other finding.
 Crossobjections are generally filed against an appellant. However, they may also be filed against
co-respondents where the appeal cannot be proceeded with without deciding issues between
respondents inter-se.
 However, there can be cross objections against a person who is not a party to the suit.
 The cross objections may be heard and decided on merits even where the appeal has been withdrawn
or dismissed for default.
 However, they will not be heard where the appeal has become time barred or has abated or is not
maintainable as they depend on the hearing of the appeal.
 Cross objections must be in the form of a memorandum of appeal and must be served on other party
or his pleader.
 A respondent may file cross objections even as an indigent person.
 The appeal and the cross objections must be heard together as they are part of the same proceeding.
Thereafter, the judgment shall be delivered on both the appeal and the cross objections.
 Where no cross appeal or cross objection is filed, the appellate court shall not disturb the decree of
the lower court so far as it is in the favour of the appellant.
 Court fee is payable on the cross objection in the same manner as it is payable on the memorandum
of appeal.
 Crossobjections must be filed within one month from the date on which notice is served on the
respondent as regards the date fixed for the hearing.

Duties of the Appellate Court-

 To decide the appeal finally

 Not to interfere with the decree for technical errors (S.99) As per S.99-A, an order passed by a court
executing a decree should not be varied or reversed on account of any error, defect or irregularity
unless the same has prejudicially affected the decision in the case.
 Appreciation of evidence
 Recording of reasons

Judgment and Decree in Appeal-

 Section 98 and Rules 30 to 34 deal with judgment in appeal.

 S.98provides that where an appeal is heard by a bench of more than one judge, the appeal shall be
decided in accordance with the opinion of the majority of the judges.
 Where there isno majority concurring with the varying or reversing the decree, the original decree
shall be confirmed.
 There may be a situation where the appeal is being decided by a bench comprising an even number
of judges (say 2 or 4 or 6) and there are more judges in the entire court than on the bench.
 In such a case where the
bench differs on an point of law, such point of law may be decided by any
number of the remaining judges of the court and the decision shall be taken by a majority of the
judges who have heard the appeal, including the judges who heard it originally.
 This shall not affect the letters patent of any High Court.
 Rule 30 provides that the appellate court shall pronounce its judgment either at once or on later date
notice of which has been given to the parties.
 The judgment shall be pronounced after hearing both parties and their pleaders and making
reference to any proceedings of the appellate court as well as the lower court.
 The judgment shall be read out in open court.
 Where it is a written judgment, it is sufficient that only the points of determination, the decision on
such points and the final order are read out.
 Rule 31 provides that apart from the particulars mentioned above (point 10), the judgment must
also state the relief granted to the appellant where the decree is varied or reversed.
 The judgment shall be signed by the judge(s).
 As per Rule 32, the judgment may confirm, vary or reverse the original decree.
 It may even be in such form as may have been required by the parties.
 The court of appeal also has the power to make or pass any other order as is necessary even where
only a part of the decree is appealed.
 Such order may be exercised against all or any of the parties even where they had not filed an appeal
or cross objection.
 Where there are decrees in cross suits or more than one decree passed in a suit, such power shall be
exercised as regards all such decrees.
 Rule 34 states that where a judge dissents from the decision given, he shall record the order or
decision which must have been passed in his opinion and he shall also record reasons for the same.
 The decree of the appellate court shall contain the following particulars-

(a) The date of the judgment

(b) The number of the appeal

(c) The names and description of the parties

(d) The relief granted and any other adjudication made

(e) The amount of costs incurred

(f) From what property has such costs incurred

(g) From what property and in what proportions will the costs be payable

(h) Should be signed and dated by the judges

 It shall not be necessary for the dissenting judge to sign the decree.
A certified copy of the judgment and decree shall be furnished to the parties on payment of the
requisite amount.
A certified copy of the judgment and decree shall also be sent to the lower court. This shall form
part of the original proceedings and shall be entered into the register of civil suits.
Conclusion41
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. 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.

42
In this recent case of C. Venkata Swamy v. H.N. Shivana taken up by the Two-Judge Bench of
Supreme Court, the Court elucidated on the powers and duties of the First Appellate Court under
the Code of Civil Procedure. The Court while analysing of the law also delved into the earlier
judgments of the Supreme Court. First appeal has been recognized as a valuable right of a litigant
and at this stage it is duty of the first Appellate Court to hear the parties on both the questions of law
as well as facts and accordingly decide issues and pass a reasoned judgment.

41
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LAST VISITED ON 20th August 2018
42
AIR 2017 SC 224
BIBLIOGRAPHY

1. Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, 2014

2. Mahmud Wazedd: Hand book on code of civil procedure;

3. Mahbudul Islam: Law of Civil Procedure, ed.2nd , Volume 2 (or 21r. 60 to end)

4. Md. Abdul Halim: Text Book on Civil Procedure

5. A. M Moniruzzaman, Civil Procedure Code, 3rd ed., (Dhaka: Shams Publications, 2007

6. Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 755.

7. The Code of Civil Procedure, 1908

8. Md. Abul Kalam Azad, The Code of Civil Procedure, 3rd ed., (Dhaka: Lipi Law Book House,
2008)