ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE

GCT 1
TOPIC- SECTION 96 APPEAL FROM
ORIGINAL DECREES
SUBMMITED BY  SUBMITTED TO 
ABDUL AZEEM  DR. ALINIHAS V.
GI9887  ASSIT.PROFESSOR
18BALLB31 DEPARTMENT OF LAW
 CONTENTS

 INTRODUCTION

 SEC 96 OF CPC

 LEADING CASE LAW

 LEADING CASE OF
DOCTRINE OF MERGER
INTRODUCTION

This article basically focuses on appeal from original decrees made under Section 96 of the Code
of Civil Procedure. The First part of the Project Report deals with introduction as to what is
meant by appeal and especially appeal from original decrees. The second Part of the Project
Report deals with the nature and scope of the Section. The third part of the Project Repot deals
with the leading case laws on right to appeal and Doctrine of Merger and lastly, the conclusion of
the article.
 
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.1 It is appeal proceeding for review to be carried out by appeal higher authority of
appeal decision given by appeal lower one. An appeal is appeal creature of statute and right to
appeal is neither an inherent nor natural right.1
 
Appeal person 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.

SECTION 96 OF CODE OF CIVIL PROCEDURE2

Appeal from Original decrees 3

Appeal is provided under Section 96 of the CPC, which says that except as provided in CPC or
any other law for timbering in force, an appeal shall lie from any decree passed by court
exercising Original Jurisdiction to appeal Court authorized to hear the appeal from the decision
of the Court i.e.

Section 96 makes it clear that no appeal lies from appeal decree passed by the Court with the
consent of the parties. However, an appeal may lie fro original decrees which is passed exparte
i.e. without hearing of the parties. No appeal lies against the decree passed by small cause court,
if the value of the subject-matter does not exceed Rs. 10,0004 except on appeal question of law.
Ordinarily, only appeal party to the suit adversely affected by appeal decree or any of his
representatives in interest may file an appeal. However, appeal person who is not appeal party to

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the decree or order may prefer an appeal with leave of the court, if he is bound or otherwise
prejudicially affected by such decree or odder, as in such an eventuality he may be said to be an
“aggrieved person.3

Right To Appeal: A Statutory And Substantive Right

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
retros0pectively because general rule of specific interpretation. Substantive law operates
prospectively unless an express statute provides so.

When does right to appeal to appeal accrues to any person?

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. The right
to appeal can be waived by a party under a legal and valid agreement, and if a party has
accepted the benefits under the decree, he is stopped from challenging its legality. The
right to appeal also stands destroyed if the court to which appeal lies is abolished
altogether without any forum being substituted in its place

The Court hearing the appeal, has the power to implead a person as respondent who has
not been so impleaded where it appears to the court that he may be a person and
interested in the result of the appeal. 6

Appeal from final decree when no appeal from preliminary decrees

In cases where preliminary and final decree are required to be passed, and if a party
aggrieved by preliminary decree does not prefer an appeal, he cannot be permitted to
raise disputes about correctness of such decree in any appeal against final decree.

An appeal is a constitution of proceedings. The appellate court can re-examine questions

of fact and law and May even re-appreciate evidence. The powers of the first appellate
court are co-extensive with those of the civil court of original jurisdiction. However,
there may be certain self-imposed restraints in the exercise of such powers. However they
are discretionary and Do not fetter jurisdiction of the courts. Unlike revision or review
where limited grounds of interference are available, the appellate proceedings offer a
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CPC BY C K TAKWANI
 much wider scope in deciding about correctness of the judgments of the courts below.
First appeal may be filed on a question of fact or on a question of law or on a mixed
question of fact and law may arise in a case.7 In determining the appellate forum, the
value of the subject matter of the suit is material and not the claim in appeal.8

The judgment of the appellate court should state the points for determination, the decision
thereon, the reasons fro the decision, and the relief to which the appellant is entitled. The
appellate court should state its own reasons; thus it is not enough to say in the judgment,
“I concur with the decision of the Munsiff has given on each point.' If this is done, the
judgment will be set aside by the High court in second appeal. After the judgment is
pronounced, the decree will be drawn up.

Who can appeal?4

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. An auction purchaser from an order in execution of a decree to set aside the same
on the grounds of fraud.
3. Any person who is bound by the decree and decree would operate res judicata
against him.
Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316
In this case, the Trial Court judge prohibited the exhibition of film both in India and
abroad. Session Judge permitted the exhibition of film in abroad. Subsequently, a
party who moved in appeal did not have locus standi. It was reversed by division
bench saying that its not proper on the part of judge as he entertained the suit on
which party has no locus standi.9

Leading Case Law On Right To Appeal And Doctrine Of Merger

1. Sadhu Singh v. Dharam Dev 1981 SCC 510

In this case, in Punjab there used to appeal right of preemption and in Muslim Personal Law, if
appeal person wants to sell immovable property, he must ask the person who have adjoining
property.
In 1973, an Act was passed, Punjab Premption Repeal Act, 1973 by which premptory right was
abolished. Provision: “No Court shall pass appeal decree in any preemption suit.” In this case,
decree has already been passed by Court of Original jurisdiction and matter was pending in
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appeal.
The issue before the Court was that: Whether the appellate Court can pass appeal decree?

It was held that the lower Courts decree would get merged into appellate Courts decree. Where
decree is drawn on appellate order and once act passed, no premptory right. In this proceeding
the appellate Court is deprived of power to pass appeal decree.
 
Conflicting situation when legislation is passed
There may be two situations:
1. A right to appeal exist on the date of institution of suit and subsequent law passed taking right
to appeal.
2. No right to appeal on the date of institution of suit but subsequently law passed granting right
to appeal.
 
2. State of Bombay v. Supreme General Films and Exchange
 AIR 1960 SC 980
In this case it was held that right to appeal cannot be taken away, if available on the date of
institution of suit and subsequently law passed taking away right to appeal.
 
3. Delhi Cloth & General Mills v. I T Commissioner AIR 1927 PC 242
Where right to appeal is created subsequently shall not be available to a litigant if the suit was
instituted prior to such creation.
 

Conclusion5

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.

Appeal person 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
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CPC BY AVTAR SINGH
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.