APPEALS
FROM ORIGINAL DECREE: S 96-99A .Order 41 of CPC.
The word appeal has not been
defined in the code. The term refers to the removal of cause from an
inferior to a superior court for the purpose of testing the
soundness of the decision of the inferior court. It is thus a remedy
provided by law for getting the decree of lower court nullified, and
is in fact,a complaint made to a higher court that the decree of
lower court is unsound and wrong. An appeal must be preferred against
the whole decree and not any
item or items in it. An appeal is only a continuation of original
proceedings and it is a stage in the suit itself.
S
96 of CPC lays down four primary rules regarding appeals from
original decree as follows:
1) Unless otherwise provided,
an appeal lies from every decree passed by any court exercising
original jurisdiction to the court authorised to hear appeals from
decisions of such a court.
2) An appeal can be even from
an exparte decree.
3) However,no appeal lies from
a consent decree.
In
order to give a person a right of appeal under this section following
two conditions must be satisfied:
1) The subject matter of
appeal must be a decree, that is a conclusive determination of rights
of the parties with regard to all or any of the matters in
controversy in the suit: and
2)The party appealing must
have been adversely affected by such determination.
It will be seen that an
appeal lies U/S 96 only from a decree. No appeal lies from a mere
finding.
When
appeal can be filed against consent decree?
1) Where appeal is filed on
the ground that it was not a decree passed with the consent of
parties,as where lawyers of parties have consented without any
authority from their respective clients.
2) Where consent decree was
passed without an order recording compromise. The reason is that such
recording is not a mere matter of form, but its absence deprives the
party of a right of appeal against the order if it had been passed.
3) Where the appellant was not
a party to consent decree and decree affects him prejudicially.
S
97 of CPC
Appeal is not permissible from
final decree when there is not appeal from preliminary decree.
S
99 of CPC
No
decree to be reversed or modified for error or irregularity not
affecting merits or jurisdiction-
No decree shall be reversed or
substantially varied nor shall any case be remanded in appeal on
account of any mis joinder, non joinder of parties or causes of
action or any error ,defect or irregularity in any proceeding in the
suit not affecting the merits of the case or the jurisdiction of
court.
However S 99 does not apply to
non joinder of a necessary party. Aim of S 99 is prevent
technicalities from overcoming the ends of justice. In other words, a
decision which is correct on the merits and is within the
jurisdiction of court should not be upset merely for technical and
immaterial defects.
S
104 of CPC
Orders
from which appeal lies
S
105 of CPC:
No
appeal lies from any order made
by a court in the exercise of its original or appellate jurisdiction,
but where a decree is appealed from ,any error,defect or irregularity
in any order affecting the decision of the case,may be set forth as a
ground of objection in the memorandum of appeal.
S
107 of CPC.Powers of appellate court
1)
An appellate court shall have power-
A) to determine a case
finally;
B) to remand a case;
C)to frame issues and refer
them for trial;
D) to take additional evidence
or to require such evidence to be taken.
2)The appellate court shall
have the same powers and shall perform as nearly as may be the same
duties as are conferred on courts of original jurisdiction in respect
of suits instituted therein.
O
41 Rule 1 to 37 of CPC lay down detailed rules governing appeal from
original decree.
O
41 R 1 of CPC- Form of appeal-What to accompany memorandum
In case of common judgment
,appellate court may dispense with filing of more than one copy of
judgment
O
41 R 2 of CPC- Grounds which may be taken in appeal
The appellant is not allowed
to argue on any ground not set out in memorandum, unless he obtains
leave of court to do so. However the decision of court is not to be
confined to the grounds set out in appeal memo. In other words the
court can rest its decision on other grounds also, provided that the
party affected is given a sufficient opportunity to contest the case
on that ground.
O
41 R 3-A of CPC
If appeal is presented after
the expiry of limitation period,it should also be accompanied by an
application for condonation of delay.
O
41 R 4 of CPC
One of several plaintiffs or
defendants may obtain reversal of whole decree where it proceed on
grounds common to all.
O
41 R 5 of CPC-
1)
Stay by appellate court
2)
Stay by court which passed the decree
No such order for stay shall
be made unless it is satisfied-
A) that substantial loss may
result to the party applying for stay of execution unless order is
made;
B) that the application has
been made without unreasonable delay; and
C) that security has been
given by applicant for due performance of such decree or orders as
may be ultimately be binding upon him.
O
41 R 11 of CPC- Power to dismiss appeal without sending notice to
lower court.
O
41 R 16 of CPC- Right to begin
Hearing
appellant and respondent
O
41 R 17 of CPC-
1)
Dismissal of appeal for appellant's default
2)Hearing
appeal exparte
O
41 R 19 of CPC- Re-admission of appeal dismissed for default
O
41 R 20 of CPC- Power to adjourn hearing and direct persons appearing
interested to be made respondents.
O
41 R 21 of CPC- Re hearing on application of respondent against whom
exparte decree is made.
O
41 R 22 of CPC
Upon
hearing responndent may object to decree as if he had preferred a
separate appeal
1) Any respondent though he
may not have appealed from any part of decree, may not only support
the decree,but may also state that the finding against him in the
court below in respect of any issue ought to have been in his favour;
and may also take any cross objection to the decree which he could
have taken by any of appeal provided he has filed such objection in
appellate court within one month from date of service on him or his
pleader of notice of the day fixed for hearing of appeal or within
such further time as the appellate court may see fit to allow.
2) Such cross objection shall
be in the form of memorandum.
4) Even if appeal is withdrawn
,cross objection will be decided.
O
41 R 23 of CPC Remand of case by appellate court
Where the court from whose
decree an appeal is preferred has disposed of the suit upon a
preliminary point and decree is reversed in appeal,the appellate
court may by order remand the case and may further direct what issue
or issues shall be tried in the case so remanded and shall send a
copy of its judgment and order to the court from whose decree appeal
is preferred, with direction to re-admit the suit under its original
number in the register of civil suits and proceed to determine the
suit; and evidence recorded during original trial shall be evidence
during the trial after remand.
O
41 R 23-A of CPC -Remand in other cases
Where the court from whose
decree an appeal is preferred has disposed of the case otherwise than
on a preliminary point, and the decree is reversed in appeal and a
re-trial is considered necessary,the appellate court shall have the
same power as it has under R 23.
Orders
of remand can be divided in to two classes:
1) Appealable orders of
remand: O 41 R 23 and O 43 R 1 of CPC.
2) Orders of remand which are
not appealable O 41 R 25.
As regards the latter, they
stand on same footing as any other order,and can be challenged in
appeal from the final decree.
O.41 R 33 of CPC: This order enables the appellate court to pass any order which ought to have been passed by trial court and to make such further or other orders as the case may require.
Read important judgment on O 41 R 33 of CPC: Click here
O.41 R 27 of CPC: Production of additional evidence in Appellate court.
Read important judgment here:
Click here
O.41 R 33 of CPC: This order enables the appellate court to pass any order which ought to have been passed by trial court and to make such further or other orders as the case may require.
Read important judgment on O 41 R 33 of CPC: Click here
O.41 R 27 of CPC: Production of additional evidence in Appellate court.
Read important judgment here:
Click here
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