FIRST APPEAL UNDER CPC
Authored by Dipali Jagannath Nikam
Keywords: First Appeal, Appeal under Original Decree, Exparte-Order, Section 96-99 of CPC, Code of Civil Procedure (CPC), Consent Decree, Order 41, Section 151 of CPC, Article 133 of Constitution of India, Section 109 of CPC, Section 107 of CPC.
An appeal is a legal term that denotes challenging an order passed by any authority or court. The Code of Civil Procedure (CPC) act governs the procedure under which the civil litigation is filed and the appellant can file an appeal against an order or a judgment passed by a civil court. First Appeal or appeal under Original Decree is usually made to the superior court than the court which has passed the decree. The important factor to note before appealing is that a decision or an order of the court has to be passed. Apart from this, many other factors need to be covered. All of these are mentioned under Section 96-99 of CPC. [i]
Any person who is hurt or feels hurt through any order or decree passed by the court may appeal in a superior court against that decree. There is no exact definition of appeal given under the code but Black's Law dictionary defines "appeal as a proceeding through which a decision made by an inferior court is challenged before a superior court for correctness". As the judicial system depends on the human being there is always a possibility of errors or mistakes. [ii]
The only way to keep it in check or to rectify the errors is by giving the right of appeals to the parties in a suit. A decree has to be received from the court against which the appeal will be made. There should at least be one aggrieved party who can be either be a plaintiff or defendant and who will be requesting for appeal and only they can if needed authorize a person to fight the case for them. Even a third party can appeal if the decree by the court is somehow affecting his rights. Party can also appeal in an ex parte order.
One has to have substantial right to appeal against the decree and if such right is not provided then they cannot file an appeal. If both the parties in the case have agreed to consent then there can be no appeal. And finally, an appeal cannot be made on an act or order which is barred in law or if the appeal value is below Rs Ten thousand. But there is an exception to this act if it is about the question of law.
Right to Appeal
Who may appeal - A right to appeal is a substantive and statutory right. As a principle, no one can appeal unless he was a party to the proceedings or if he is the legal representative of the party. An appeal can be made by a person who is affected by the decree but was not part of the proceedings and there is a special provision for this. A legal representative can also appeal on behalf of the minor for any decree by the court.
Who may not Appeal - If a party waives his right or agrees not to appeal cannot file an appeal and will be bound by such agreement. Also, an important factor to note while not allowing the right to appeal is whether the party is adversely affected by such decree or decision which is a fact to be determined in each case. Also, an appeal cannot be made if there is an act passed by a legislative body under which the decree is made. [iii]
An Appeal against Ex parte decree - Under Section 96(2), the defendant can file an appeal if the materials brought on record by the plaintiff were either insufficient or not true to nature. Also, an application may be presented to set aside the decree passed on the absence of the defendant.
No Appeal against Consent Decree – An appeal cannot be made on a decree which is agreed upon by both the parties and its principle is provided under Section 96(3).
No Appeal in Petty Cases – An appeal cannot be made against the decree if the value of the suit is below Rs. 10,000 as cognizable by the Court of Small Causes. This is given under Section 96(4).
An Appeal against Preliminary Decree – As per Section 97 of CPC an appeal can be filed against both preliminary and final decree however if an appeal is not filed against a preliminary decree then it cannot be questioned against the final decree.
An Appeal against Judgement – An appeal though is usually filed against a decree but can be made on the judgment itself if a decree is not passed.
No Appeal against a finding – An appeal cannot be made against incorrectness or mistakes in terms and can only be filed against the decision or decree of the court.
An Appeal against a dead person – A person who has filed an appeal against a dead person unknowingly can file afresh against the legal heirs of such deceased person in compliance with the Limitation Act.
Forum of Appeal
The forum of appeal depends on the value of the suit. If the value of the suit is below two lakhs then the first appeal lies to the district court and anything higher than that sum will be taken into High Court.
Presentation of Appeal
Order 41 provides the valid presentation and requirements of an appeal and it has been laid down in the memorandum of appeal the rules for such judicial examination.
Section 151 of CPC mentions that a dismissal of an appeal has to have valid reasons and a statement has to be issued against such judgment along with a formal decree.
Doctrine of Merger
The Doctrine of Merger is the merging of any decree that is already passed with the new one. Any decree passed by the appellate court will stand in the place of the original decree for all purposes and will henceforth be known as a final decree.
Cross Objection of a Decree
Cross objections are made by defendants and they are necessary when a decree or directions are issued against them and have to be challenged based on the part where relief needs to be granted to the plaintiff. This is laid down under Order 41, R.22 (1) & 33.
Powers and Duties of Appellate court
Section 107 describes the power of an appellate court. The Appellate court can remand a case, frame issues, and refer them for trial, reappraise evidence, summon witnesses, reverse the decision of the lower court if found unjustified. The duties of an appellate court are to analyze the factual position before deciding on taking the appeal. To provide cogent reasons if an appeal is dismissed and also to delve into the question of limitation under Section 3(1) of the Limitation Act.
Appeal to Supreme Court
An appeal can be made to Supreme Court and the conditions of such appeal are given under Article 133 of the Constitution of India and Section 109 of CPC. This kind of case usually involves a substantial question of law of general importance and if the high court believes that such a question should be answered or such cases need to be decided by Supreme Court then an appeal is made to Supreme Court.
It is a statutory right of a person to file an appeal against a decision or decree of court if they find it unjustified but at the same, not everyone can file for an appeal. One has to be directly involved in the case or would have been aggrieved with the decision of the court to file an appeal. An appeal can be made once the suit is set into motion and the limitation period to file an appeal in the high court is within 90 days of the decree. There are many factors to be considered in the first appeal and these points are discussed above in the article. Finally, it can be summarized that the above sections mentioned in the article under the Code of Civil Procedures deal with the First Appeal part.
i] Dev Dube, “Appeal against original decree-First appeal, Civil procedure code 1908, Hindi section 96-99”, YouTube, May.25.2020 https://www.youtube.com/watch?v=5VPULfnc2Qs
[ii] Mariya Pallwala,“First appeal under the code of civil procedure,1908” Ipleaders, Jan.17.2020 https://blog.ipleaders.in/first-appeals-under-the-code-of-civil-procedure-1908/
[iii] Shuvneek Hayer,“First Appeal”, Law Time Journal, Jan.13.2019 http://lawtimesjournal.in/first-appeal/