Concept of appeals under the Code of Civil Procedure

Concept of appeals under the Code of Civil Procedure

An appeal consists of a process where superior court reconsiders the decision of inferior court. The consideration may be made on the question of fact as well as question of law. The court while exercising its appellate jurisdiction can confirm, reverse, modify or remand the matter to lower court for fresh decision in terms of its direction. However, the term ‘Appeal’ is not defined under the Civil law.  Appeal is a creature of statute and right to appeal is a substantive right. It is notable here that suo moto appeal is not possible.

Meaning of appeal:

The Black’s Law Dictionary defines appeal as “the complaint to a superior court for an injustice done or error committed by an inferior one, whose judgement or decision the court above is called upon to correct or reverse. It is the removal of a cause from a court of inferior jurisdiction to one of superior jurisdiction, for the purpose of obtaining a review and retrial.”

Who can file an appeal?

This is a first and foremost question that stuck in mind of litigants that who is authorized to file an appeal. Here are the persons who can file appeal before the court of law:-

  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 is entered on the record of the suit.
  2. If such party is dead who get affected by the decree then its legal representatives can file an appeal by virtue of Section 146 CPC.
  3. An auction purchaser may file appeal against an order in execution of a decree to set aside the sale on ground of fraud.
  4. No other unless he/she is a party to a suit can file appeal.

Howbeit, if any person is prejudicially affected by the decree or order, where he/she was not a party to the suit may prefer an appeal via special leave of the appellate court.

Who cannot file an appeal?

As per law if any person waives his/her right to file an appeal against decree or order cannot file it at a later stage. Apart from this, if any party ratifies any decision of the court by accepting and acknowledging the provisions under it, then may be estopped that party from appealing that judgement in a higher court.

What are the various forms of appeal under civil law?

The broad categorization of appeal divides it into two parts i.e. first appeal and second appeal. The first appeal is described under Section 96 of the CPC and it provides that an appeal shall lie from a decree passed by any Court exercising original jurisdiction to the authorized appellate courts, except where expressly prohibited.

The provision of second appeal is provided under Section 100 of CPC which states that an appeal shall lie to the High Court from a decree passed in the first appeal by a subordinate court, excepting the provisions speaking to the contrary. The scope of exercise of jurisdiction under this Section is limited to a substantial question of law framed at the time of admission of appeal.

Moreover, there are sub-categories under appeals which are mentioned below:-

  1. Appeal from original decree.
  2. Appeal from order.
  3. Appeal from appellate decree/Second appeal to High Court.
  4. Appeal to Supreme Court.

Appeal from original decree:

Section 96 of CPC deals with appeals from original decree. Usually, first appeal lies from every original decree passed by any court. It is marked here that appeal may lie from an ex-parte decree, but appeal shall not lie from a decree passed with consent of both parties.

Appeal from order:

Sections 104 to 108 and Order 43 of the CPC talks about appeals against orders. According to these provisions, certain order are appealable other whereas, appeal could not be lie against some orders. Order can be defined as “the formal expression of any decision of a civil court which is not a decree.” An appeal from order can be filed within ninety days before the concerned High Court and within thirty days from the date of order, before another court.

Section 106 provides that appeals against orders in cases in which they are appealable shall be brought before the court to where an appeal would lie from the original suit. Howbeit, Section 105 states that every whether appealable or not, except an order of remand can be attacked in an appeal from the final decree on the ground that there is an error, defect or irregularity in the order and that such error, defect or irregularity affects the decision of the case.

Appeal from appellate decree:

Section 100 of the CPC provides for second appeal to High Court against decree passed by appellate court. The procedural right of the second decree is provided to either of the parties to a civil suit who has been adversely affected by the decree passed by a civil court. It is notable here that general rule is that second appeal lies to the High Court only if the court is satisfied that it involves a substantial question of law.

In Mahindra & Mahindra Ltd. v. Union of India & Anr. 1979 AIR 798, the Apex Court observed that under the proviso, the Court be ‘satisfied’ that the case involves a substantial question of law and not a mere question of law. The reason for permitting the substantial question of law to be raised should be recorded by the Court.

However, as per Section 103, the High Court has power to determine the issues of fact if there is sufficient evidence on record.

Provisions related to appeal to Supreme Court in civil case:

Primarily, the Indian Constitution under Article 133 provides provision to file an appeal to the Apex Court. Further, Section 109 of the CPC provides the conditions under which an appeal could be filed before the Supreme Court, these are enumerated below:-

  1. An appeal can be filed from a judgement, decree, or final order of the High Court.
  2. A case which involves the substantial question of law of general significance.
  3. Where High Court opines it to be fit for the Supreme Court to deal with such a question.

Can we file an appeal in small cases?

No, Section 96 (4) of the CPC put a restriction on filing appeal in cases where the value of subject matter of the original suit does not exceed Rs. 10,000/- except where any point of law exists. The idea behind enacting this provision is to reduce the number of appeals in petty cases.

What is difference between civil suit and appeal?

The basic distinction lies between two is that suit is filed for cause and issues are disputed on questions of law and facts as well whereas, appeal only reviews and corrects the proceedings in case already constituted but does not create a issue.  The another difference is that suit is filed before the lower court in its respective hierarchy for trial on the flip side, an appeal is filed before an Appellate Court for the purpose of reviewing the decision of the inferior court.

-Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar Mohali