Free Judiciary Notes · CPC Notes
CPC Sec.96-99
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APPEAL: CONCEPT & MEANING (CPC)
The expression "appeal" has not been defined in the Code. According to dictionary meaning, "appeal" is ‘’the judicial examination of the decision by a higher court of the decision of an inferior court". ▪ In Nagendra Nath v. Suresh Chandra, [AIR 1932 PC 165] 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." 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".
ESSENTIALS OF APPEAL
Every appeal has three basic elements:
i. A decision (usually a judgment of a court or the ruling of an administrative authority);
ii. A person aggrieved (who is often, though not necessarily, a party to the original proceeding); and
iii. A reviewing body ready and willing to entertain an appeal.
RIGHT OF APPEAL
A right of appeal is not a natural or inherent right. It is well-settled that an appeal is a creature of statute and there is no right of appeal unless it is given clearly and in express terms by a statute. Whereas sometimes an 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 of appeal, it cannot be declared ultra vires only on that ground. [Kartar Singh v. Stale of Punjab, (1994) 3 SCC 569.] Again, the right of appeal is a substantive right and not merely a matter of procedure. [Garikapati Veeraya v. N. Subbiah Chaudhry, AIR 1957 SC 540] It is a vested right and 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.[Garikapati Veeraya v. N. Subbiah Chaudhry, AIR 1957 SC 540: 1957 SCR 488; 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. The right being a creature of statute, conditions can always be imposed by the statute for the exercise of such right. In Anant Mills Co. Ltd. v. State of Gujarat[AIR 1975 SC 1234.], speaking for the Supreme Court, Khanna, J. said: "It is well-settled by several decisions of this court that the right 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."
ONE RIGHT OF APPEAL
A single right of appeal is more or less a universal requirement. It is based on the principle that all men are fallible and judges are human beings who may commit a mistake. Absence of even one right of appeal must be considered to be a glaring lacuna in a legal system governed by the Rule of Law. Sections 96, 100, 104 and 109 of the Code of Civil Procedure confer the right of appeal on aggrieved persons in cases mentioned therein. Sections 96 to 99 and 107 read with Order 41 deal with first appeals.
RIGHT TO FILE SUIT AND RIGHT TO APPEAL
There is a fundamental distinction between the right to file a suit and the right to file an appeal. The said distinction has been appropriately explained by Chandrachud, J. (as he then was) in the case of Ganga Bai v. Vijay Kumar[(1974) 2 SCC 393: AIR 1974 SC 1126.] 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 such 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 CONTINUATION OF SUIT
An appeal is a continuation of a suit. A decree passed by an appellate court would be construed to be a decree passed by the Court of the first instance. In Dayawati v. Inderjit [AIR 1966 SC 1423:], speaking for the Supreme Court, Hidayatullah, J. (as he then was) explained the scope of Appeal. In Garikapati Veeraya v. N. Subbiah Chaudhry[AIR 1957 SC 540], referring to various leading decisions on the subject, the Supreme Court laid down the following principles relating to a right of appeal:
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 a mere matter of procedure but 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.
4. The right of appeal is a vested right and such a right to enter the 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 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.
5. This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
RIGHT OF APPEAL: MATERIAL DATE
The right of appeal is a substantive and vested right and accrues in favour of the litigant on the day the lis commences and although it may be actually exercised only after an adverse judgment is pronounced, such a right is governed by the law prevailing at the date of the institution of the suit and not by the law in force at the time when the judgment is rendered or an appeal is preferred. [Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369 (PC); Garikapati Veeraya v. N. Subbiah Chaudhry, AIR 1957 SC 540
WHO MAY APPEAL?
Section 96 of the Code recognises the right of appeal from every decree passed by any court exercising original jurisdiction. It does not refer to or enumerate the persons who may file an appeal. 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. [ Jatan Kanwar v. Golcha Properties (P) Ltd.: AIR 1971 SC 374 ] The test whether a person is an aggrieved person is to see whether he has a genuine grievance because an order has been made which prejudicially affects his interests either pecuniary or otherwise. [Adi Pherozshah Gandhi v. HM. Seervai, AIR 1971 SC 385 at p. 399.
Generally speaking, a decision cannot be said to adversely affect a person unless it will operate as res judicata against him in any future suit. [State of Punjab v. Amar Singh; Adi Pherozshah Gandhi v. H.M. Seervai,.] ▪ The question whether a party is or is not adversely affected by a decree is a question of fact to be determined in each case according to its particular circumstances and no rule of universal application can be laid down. From the above general principles, the following persons are entitled to appeal under this section: 1. A party to the suit who is aggrieved or adversely affected by the decree, or if such party is dead, his legal representatives. [S. 146]
2. 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. [S. 147, Or. 32 R. 5.] 4. Any other person, with the leave of the court, if he is adversely affected by the decree. [State of Punjab v. Amar Singh; Adi Pherozshah Gandhi v. H.M. Seervai,]
146. Proceedings by or against representatives—
Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person then the proceeding may be taken or the application may be made by or against any person claiming under him.
147. Consent or agreement by persons under disability—
In all suits to which any person under disability is a party, any consent or agreement, as to any proceeding shall, if given or made with the express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if such person, were under no disability and had given such consent or made such agreement.
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.
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 the plaintiffs and the defendants but between defendants inter se and such decision adversely affects one defendant against the other than such appeal would be competent.
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.[Ameer Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC).] Such an agreement, however, 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. Similarly, where a party has accepted the benefits under a decree of the court, he can be estopped from questioning the legality of the decree. As Scrutton, L.J.[Dexters Ltd. v. Hill Crest Oil Co., supra.] observed, " 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. [Daji Saheb v. Shankar Rao, AIR 1956 SC 29]
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 Commr, [AIR 1987 SC 1598] a first appeal was filed in the High Court against an order passed by the Charity Commissioner on an application under Section 72 of the Bombay Public Trusts Act, 1950.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 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. [Or. 20 Rr. 6-A, 6-B; Or. 41 R. 1 (1)]
ORDER – XX -- JUDGMENT AND DECREE
1. Judgment when pronounced —
1. The Court, after the case has been heard shall pronounce judgment in open Court either at once or, as soon thereafter as may be practicable, on some future day; and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleader:
Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within fifteen days from the date on which the hearing of the case was concluded but, where it is not practicable so to do, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond thirty days from the date on which the hearing of the case was concluded, adduce notice of the day so fixed shall be given to the parties or their pleader:
Provided further that, where a judgment is not pronounced within thirty days from the date on which the hearing of the case was concluded, the Court shall record the reasons for such delay and shall fix a future day on which the judgment will be pronounced and due notice of the day so fixed shall be given to the parties or their pleaders.
2. Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court on each issue and the final order passed in the case are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or the pleaders immediately after the judgment is pronounced.
3. The judgment may be pronounced by dictation in open Court to a shorthand writer if the Judge is specially empowered by the High Court in this behalf:
Provided that, where the judgment is pronounced by dictation in open Court, the transcript of the judgment so pronounced shall, after making such correction therein as may be necessary, be signed by the judge, bear the date on which it was pronounced, and form a part of the record.
6A. Preparation of decree — (subs. By 2002 amendment Act.)
1. Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounced.
2. an appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall, for the purposes of rule 1 of Order XLI, be treated as the decree; But as soon as a decree is drawn up the judgment shall cease to have the effect a decree for the purpose of execution or for any other propose :
6 - B. Copies of judgments when to be made available — (subs. By 2002 amendment Act.)
Where the judgment is pronounced, copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of such charges as may be specified in the rules made by the High Court.
NO APPEAL AGAINST FINDING
Section 96 of the Code enacts that an appeal shall lie from every decree passed by any court exercising original jurisdiction. So also, Section 100 allows a second appeal to the High Court from every decree passed in appeal. Likewise, an appeal lies against an order under Section 104 read with Order 43 Rule 1 of the Code. It, however, states that no appeal shall lie from other orders. [S. 105.]
Hence, an appeal lies only against a "decree" or an "order" which is expressly made appealable under the Code. A finding recorded by a court of law may or may not amount to a "decree" or an "order". Where such a finding does not amount to a "decree" or an "order", no appeal lies against such adverse finding.
Thus, where a suit is dismissed, the defendant against whom some adverse finding has been recorded on some issue has no right of appeal and he cannot question the finding by instituting an appeal.
The Explanation to Rule 22 of Order 41, as added by the Amendment Act of 1976, however, enables the respondent to file cross-objections against any finding recorded against him even though the ultimate decree may be in his favour.
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 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.
DOCTRINE OF MERGER
Where an appeal is provided against a decree passed by the trial court and such appeal is preferred, it is the decree of the appellate court which is operative in law, which can be enforced. The doctrine of merger is based on the principle that there cannot be, at one and the same time, more than one operative decree governing the same subject-matter. Hence, as soon as an appeal is decided by an appellate court, the decree of the trial court ceases to have existence in the eyes of the law and is superseded by a decree by an appellate court. In other words, the decree passed by the trial court merges with the decree of the appellate court.