Appeals

appeals from original decree

1. Appeals from original Decree Presented by :- Trisom Sahu(14IP60011) RGSOIPL,IIT Kharagpur

2. What is an appeal? The expression Appeal is not defined the Code anywhere. In Nagendra Nath V. Suresh Chandra-1932 Sir Dinshaw Mulla stated :- “ There is no definition of appeal in the code, but their Lordships have no doubt that any application by a party to appellate court asking to set aside or reverse a decision os a subordiante Court, is an appeal within the ordinary acceptation of the term… ”

3. High courts Section – 96 doesnot apply to appeals from decree passed by original side of Highcourt . It is governed by Letters Patent clauses. CPC- Section104 also governs the same.

4. SEC-96 Nature and Scope An appeal is maintainable against any decree from a Court exercising original jurisdiction. Appeal also applicable for an ex-parte decree. Bars an appeal against consent decree. No appeal from a decree of petty cases unless a question of law arises.

5. Legislative Changes Section 96 corresponds to Section 540 of the Code of 1882. Subsection – 4 inserted in CPC in 1976 to reduce appeal on a question of facts in petty cases. Law Commission(54 th Report) : - “ No first appeal should lie in any suit of the nature cognizable by Court of Small Causes where the amount ….. Doesnot exceed three thousand”

6. Extent and Applicability S.96 expressly confers a right of appeal from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decision of such Court. Deep Chand V. Land Acquision Officer, the Apex Court held : - “…where a legal right of a party to dispute has to be adjudicated by a Court exercising ordinary civil jursidiction , ordinary rule of civil procedure applies and an appeal lies, if not otherwise provided by such rules.”

7. Essential elements A decision from which an appeal is made. A person or person aggrieved. Reviewing body ready to review the appeal In Shankar Ramachandran V. Krishnaji SC stated: - “ Two thing required to constitute appellate jurisdiction were the existence of the relation of superior and inferior court and the power on the part of the dormer to review. ”

8. Right to Appeal A right to appeal is not natural or Inherent right. It is only conferred by statute. It is not an fundamental or a constitutional right. In Attorney General V. Sillem :- “the creation of new right is plainly an act which requires legislative authority… ”

9. Who may appeal The subject matter of an appeal must be a decree where a conclusive determination of the rights of a party is done The party appearing must have been adversly affected by such determination.

10. Appeal against ex-parte Did not exist in the old code of 1882 Inserted in the new code. The defendant against whom exparte is passed, has a remedy to appeal against it. Even after dismissal under order9 rule 13, a regular appeal is maintainable.

11. Letters patent appeal The code doesnot make provision for an appeal within the HighCourts . Such appeals are addressed by Letters Patent Clauses. Under the judgement of a single bench may be appealed before a division bench of the same court provided that such is not prohibited by the Court. To be filed within 30 days. Order41 rules applies to letters patent also.

12. Limitation The Code doesnot provide for a limitation period. The limitaiton act of 1963 provides for limitation. Rule 3-A of Order 41 prescribes when can an appeal be presented after the limitation is over.

13. Thank You