By - Chandan Kumar, Student, Central University of South Bihar.
Introduction:
The term 'appeal' is not defined in the Code. Generally, it means the judicial examination of the decision by a higher court of the decision of an interior court. It is a proceeding initiated by an aggrieved party in the superior court against the decision of a subordinate court.
Right of appeal: It is settled law that the right to appeal is not inherent. It is a right created by a law. Supreme Court in Anant Mills Co. Ltd. v. the State of Gujarat, (1975) 2 SCC 175 held that there is no right to appeal unless it is provided by the statute. In Garikapti Veerya v. N. Subbiah Chaudhary, AIR 1957 SC 540 Supreme Court held that this vested right of appeal can be taken away only by a subsequent enactment and not otherwise.
Material date of right to appeal: The right to appeal accrues on the date of suit. In other words, it is a right that is governed by the law prevailing on the date of institution of the suit and not on the date of decision [Garikapti Veerya v. N. Subbiah Chaudhary, AIR 1957 SC 540]. Thus, if on the date of institution of suit the right of appeal was provided by the statute it will be available to the aggrieved party after the decree/ordinance is passed even though subsequently it is taken away by the legislature.
Essentials of appeal: Following are the essentials of appeal:
1. A decision [decree or order].
2. An aggrieved person.
3. A superior forum/court.
Who may file an appeal: Following persons can file an appeal:
1. A party to the suit who is peeved;
2. If such party is dead, his legal representatives; [see Section 146]
3. Any person claiming under aggrieved person; [see Section 146]
4. Guardian ad litem appointed by the court in case of a suit by or against a minor, [see Section 147 and Order 32 Rule 5]
5. Any other person if he is adversely affected by the decision of the court, with the leave of the court. [Adi Pherozshah Gandhi v. H.M. Seervai, (1970) 2 SC 484).
The appeal is a continuation of the suit: Appeal is considered to be the continuation of the suit. A decree passed by the appellate court would be construed as the decree passed by the court of the first instance. First appellate court can do all that which could be done by the trial court [Tajinder Singh Gambhir v. Gurpreet Singh, (2014) 10 SCC 702].
Right of appeal under code of civil procedure:
As stated above, there can be no right of appeal unless created by statute; the code of civil procedure provides the following instances when appeal lies:
1) Appeal from original decrees or first appeal.
2) Appeal from appellate decrees or second appeal.
3) Appeal from orders.
4) Appeal by indigent persons.
5) Appeal to the Supreme Court.
Instances where there is no right of appeal under code of civil procedure:
The opening words of Section 96 mention 'save as otherwise expressly provided by this Code or under any other law' clearly indicates that the right of appeal is not available in all cases. Right to appeal is subject to various restrictions which are discussed below:
- No appeal against consent decree [Section 96 (3)]: Section 96 (3) provides that no appeal shall lie from a decree passed by the court with the consent of parties. However, Order 43 Rule 1-A provides that it shall be open to the appellant to contest the decree on the ground that compromise should or should not have been recorded. In Banwari Lal v. Chando Devi, (1993) 1 SCC 581. Supreme Court held that this provision is not applicable when the factum of compromise is in the dispute or the compromise decree is challenged on the ground that such compromise had not arrived lawfully.
- Bar on appeal against preliminary decree [Section 97]: As a general rule, an appeal lies against preliminary decree but Section 97 provides that where a party fails to appeal against preliminary decree, he cannot challenge its correctness subsequently when he appeals against the final desire, passed in the suit.
- No appeal in petty cases (Section 96(4) and 102]: Section 96(4) provides that no appeal shall lie against the decree passed by the Court of Small Causes except a question of law and where the value of subject matter of the suit does not exceed ten thousand rupees. Similarly, according to Section 102, Second Appeal is barred where of subject matter is less than Rs. 25,000.
- No appeal if decree passed by single judge [Section 100-A]: This section provides that where any first appeal or second appeal or appeal from the order is heard and decided by a single judge of High Court, no further appeal will lie from the decree of such judge.
- Non-appealable orders [Section 105]: Section 105 provides that except provided under Section 43 Rule 104 and Order 1, all the orders passed by the court are non-appealable except in the case where a decree is appealed from and the defect or error in the order affects the decision of the case.
First Appeal:
Let’s assume that one Ramesh entered into an agreement with one M/s Fraud Constructions for the purchase of a plot of land. M/s Fraud Constructions does not sell the plot to Ramesh and Ramesh comes to know that M/s Fraud Constructions is negotiating with certain third parties to sell the plot to someone else. In such circumstances, Ramesh files a suit for specific performance of an agreement praying the court to direct M/s Fraud Constructions to execute and register the sale deed. The Trial Court, after considering the evidence, decrees the suit and holds that Ramesh is entitled to the direction and passes a judgment on the finding that Ramesh was always ready and willing to purchase the plot and that M/s Fraud Construction was not justified in refusing to execute the sale deed.
Now M/s Fraud Construction against whom the judgment is passed will file the first appeal under Sec.96. It is settled law that the court of the first appeal is entitled to reconsider the entire case i.e. both on facts and on the law. The first appellate court can hold that the conclusion arrived by the trial court on a particular fact is incorrect and on the basis of the evidence available before the trial court held that such a finding could not be returned. Thus, the first appellate court can reverse a finding of fact by the trial court. The same holds good on a question of law also. The first appellate court is thus the last court where facts are also questioned. Going back to the example suppose the first appellate court finds that Ramesh is not entitled to succeed on account of the fact that he was not always ready and willing to purchase the plot it would reverse the trial court judgment and set aside the decree. Therefore Ramesh would lose on a question of fact (finding on a question of readiness and willingness is always a question of fact).
Second Appeal:
Ramesh having lost in the first appeal would want to file a second appeal. The second appeal under the CPC is always before the High Court under Sec.100. The primary difference between the first appeal and the second appeal is that a second appeal is maintainable only on a 'substantial question of law' and a question of fact cannot be raised. Here Ramesh would not be permitted to argue again that he was ready and willing but he has to make out a question of law and that question of law must of substantial nature which pertains to a question on which the Courts had not laid down the law or if the law had been laid down had not been applied to the facts of a given case. The ground of hearing Ramesh would be extremely limited. He has to show something beyond the fact that there is material to show his readiness and willingness. He has to raise a substantial question of law. Let's assume for a moment that the Ld. The judge of the first appellate court who signed the judgment was not the one who had written it (Trust me! stranger things have happened albeit that it is not a common occurrence) then Ramesh can raise this as a substantial question of law and the High Court would entertain it.
Thus, in brief, the difference between the first appeal and the second appeal is a question of jurisdiction. The jurisdiction in the second appeal is limited to substantial questions of law whereas in the first appeal the jurisdiction extends to examine both facts and law.
Appeal from orders:
Section 104 and Order 43 Rule 1 enumerate certain orders of the court from which an appeal may be preferred. Following are few illustrations:
- Order under Section 35A imposing costs for vexatious claims or defenses.
- Order under Section 91 and 92 refusing leave to institute a suit of nature referred to in Section 91 and 92.
- Order under Section 95 providing compensation for obtaining arrest, attachment, etc.
- Order imposing a fine or directing arrest or detention in the civil prison of any person except in execution of the decree.
- An order under Rule 10 of Order 7 returning a plaint to be presented in proper court except where the procedure specified in Rule 10 A has been followed.
- An order under Rule 9 of Order 9 rejecting an application for an order to set aside the dismissal of the suit.
- An order under Rule 13 of Order 9 rejecting an application for an order to set aside a decree passed ex parte.
- An order under Rule 21 of Order 11.
- An order under rule 34 of order 21 on an objection to the draft of a document or endorsement.
- Other others enumerated under rule 1 of order 43.
No second appeal from orders: section 105 of the code provides that no appeal from orders of the court can be preferred unless provided by the code under section 104 and orders 43 rule 1. However, if the decree is appealed against and the defect or error in order affects the decision of the case, in such case, even though non-appealed, an order may be objected.
Appeal to the Supreme Court:
Section 109 allows appeal to the Supreme Court against any judgment, decree, or final order in a civil proceeding of a High Court if the latter certifies that the case involves a substantial question of law that needs to be decided by the Supreme Court. Such right is subject to constitutional provisions and rules Supreme Court.
CONCLUSION:
The expression appeal has not been characterized in the Code of Civil Procedure 1908. It is an application or a request to appeal higher Court for this consideration of the decision of the appeal lower court. It is an appeal proceeding for review to be done by an appeal higher authority of the appeal decision given by an appeal lower one. In appeal is an appealing creature of statute and the right to appeal is neither an inherent nor natural right. Appeal individual aggrieved by appeal decree isn't qualified as or right for appeal from the decree. The right to appeal should be given by statute. Area 9 gives on appeal litigant, independently of any statute, appeal right to institute appeal suit of civil nature in appeal court of law. So he has the appeal right to apply for execution of an investigative decree passed in support of himself, however, he has no option to appeal from an appeal decree or request made against him unless the right is unmistakably given by statute. Segment 96 of the Code gives appeal right to litigants to appeal from a unique decree. Area 100 gives him appeal right to appeal from a redrafting decree in specific cases. Area 109 gives him the right to appeal to the Supreme Court in specific cases. Area 104 gives him the right to appeal from orders as distinguished from decrees. When judgment is pronounced against the gathering, the right to appeal emerges. Right to appeal doesn't emerge when the adverse decision is given, yet on the day suit is instituted for example proceedings commenced, right to appeal get given. In this way, it very well may be said the Right to appeal is an appeal substantive right vested in parties from the date suit instituted.
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