Aligarh Muslim University Malappuram Centre
Aligarh Muslim University Malappuram Centre
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 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 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
1
www.legalbites.com
2
www.indianlegalservice
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
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
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.
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.