Discuss the purpose of ‘appeal’. What are the essential ingredients of an appeal?

APPEALS

Q. Discuss the purpose of ‘appeal’. What are the essential ingredients of an appeal?

The expression ‘appeal’ has not been defined any where under the Code of Civil Procedure, 1908. However, it may be defined as “the judicial examination of decision by a Higher Court of the decision of an inferior court”.¹

The Privy Council in Nagendra Nath v. Suresh Chandra, MANU/PR/0017/1932 : AIR 1932 PC 165: (1932) 34 Bom LR 1065, however, held that “any application by a party of an Appellate Court, asking to set aside or reverse a decision of a subordinate court, is an appeal within the ordinary meaning of the term. It is a right of entering a superior court and invoking its aid and interposition to redress an error in the Court below”; Dayawati v. Inderjit, MANU/SC/0022/1966 : AIR 1966 SC 1423: (1966) 3 SCR 275.

Essential Ingredients of an Appeal

Every appeal has three basic/essential elements:

(i) an adjudication of a suit by a court;

(ii) an aggrieved person (not necessarily a party to the proceedings);

(iii) a review body ready and willing to entertain a appeal.

Section 96 of the Code of Civil Procedure, 1908 provides for the ‘appeal from original decree’ as under:

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such court.

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1. Chamber’s 21st Century Dictionary (1997, Edn.), p. 59.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees.

Section 96 of the Code of Civil Procedure, 1908 as mentioned above distinguishes the cases fit as well as unfit for appeal. It does not enumerate the person who may file appeal. Thus, as per the section, the right to appeal is recognized:

(a) from every decree passed by court of original jurisdiction;

(b) from an original decree which is passed ex parte, i.e., without hearing the respondent(s);

The vested right of appeal is destroyed when:

(a) the original decree is shown to have been passed with the consent of parties. The rational behind this is, it creates an estoppel between the parties as a judgment on consent.

(b) decree passed is in petty suits where the amount of value of suit does not exceed ten thousand rupees.

Nature of Right of Appeal

Q. Discuss the nature of right of appeal.

A right of appeal is not a natural inherent right, rather appeal is a creature of statute and there is no right to appeal unless clearly granted and in express terms by statute. In other words, a right of appeal infers in no one and therefore an appeal for its maintainability must have the clear authority of law; Ganga Bai v. Vijay Kumar, MANU/SC/0020/1974 : (1974) 2 SCC 393: AIR 1974 SC 1126: (1974) 3 SCR 882. The right of appeal, which is a statutory right, can be conditional and qualified. It cannot be said that such a law would be violative of article 14 of the Constitution. If the statute does not create any right of appeal, no appeal can be filed. The right of appeal inheres in no one and, therefore, for the maintainability of an appeal there must be authority of law; Gujarat Agro Industries Co. Ltd. v. Municipal Corp. of City of Ahmedabad, (1999)

3 LRI 14: MANU/SC/0300/1999 : AIR 1999 SC 1818: JT 1999 (3) SC 259: (1999) 3 SCALE 40: (1999)

4 SCC 468: (1999) 2 SCR 895: 1999 (2) UJ 792 (SC). 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. 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. An appeal is a continuation of a suit. An appeal from an original decree is called a first appeal. An appeal from an appellate decree is called a second or special appeal. The Appellate Court in case of first appeal can re-examine the questions of fact and law and may even re-appreciate evidence. The powers of first Appellate Courts are coextensive with those of Civil Courts of original jurisdiction. First appeal may be filed on a question of law or on a mixed question of fact and law which arise in the case; Manikchandra v. Devdas Nandy, AIR 1986 SC 556.

Who may File an Appeal?

The following persons are entitled to file appeal under section 96 of the Code of Civil Procedure, 1908:

(i) A party to a suit, who is aggrieved or adversely affected by the decree, or if such party is dead his legal representative.

(ii) A person claiming under a party to the suit a transfer of the interests of such party, who so far as such interest is concerned, is bound by the decree, provided his name is entrusted on the record of the suit.

(iii) A guardian ad litem appointed by the Court in a suit by or against a minor.

(iv) Any other person, with the leave of the Court, if he is adversely affected by the decree.

The ordinary rule is that only a party to a suit adversely affected by the decree or any of his representative in interest may file an appeal. But a person who is not a party to a 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, MANU/SC/0041/1970 : AIR 1971 SC 374: (1971) 41 Comp Cas 230 (SC): (1970) 3 SCC 573: (1971) 3 SCR 247.

Maintainability of Appeal

(i) Appeal against preliminary decree.–

All decrees are appealable unless barred by the Code of Civil Procedure, 1908. Therefore, an appeal lies against preliminary decree as final decree but as a machinery for the implementation of a preliminary decree. Failure to appeal against preliminary decree precludes the aggrieved party from challenging the final decree. Hence, no appeal lies against the final decree, where no appeal was filed against preliminary decree.

(ii) Appeal against judgment.–

Appeal against judgment is not maintainable under the Code of Civil Procedure, 1908. However, the aggrieved party, may file appeal against judgment, if a decree is not drawn up by the Court.

(iii) Appeal against ex parte decree.–

An appellant in an appeal against ex parte decree can question the validity of order and plead to adjourn and proceed with the suit since the corrective jurisdiction of the Appellate Court includes consideration of procedural errors; Muttangi Ranga Nayakamma v. WKV Mahalakhmi, MANU/AP/0096/1972 : AIR 1972 AP 117. The Code prescribes for setting aside of the ex parte decree under Order IX, rule 13 and when a plea under the said provision fails, an appeal is specifically provided under clause (d) of Order XLIII, rule 1 of the Code of Civil Procedure, 1908 against an order of a Trial Court refusing to set aside ex parte decree.

(iv) Appeal against ‘Finding’ and ‘Dead Person’.–

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. Similarly, no appeal can be instituted against ‘Dead person