The present article, ‘Appeals Under Civil Law’, will discuss first appeals; second appeals; appeals from orders; appeals by indigent persons; and appeals to Supreme Court – as mentioned in the aforementioned provisions and orders of the Code. Appeals, while not defined in the Code of Civil Procedure, 1908 (‘the Code’), are essential components of civil law procedures. In… Read More »

The present article, ‘Appeals Under Civil Law’, will discuss first appeals; second appeals; appeals from orders; appeals by indigent persons; and appeals to Supreme Court – as mentioned in the aforementioned provisions and orders of the Code. Appeals, while not defined in the Code of Civil Procedure, 1908 (‘the Code’), are essential components of civil law procedures. In practice, appeals tend to be applications or petitions to a higher court (known as the appellate court)...

The present article, ‘Appeals Under Civil Law’, will discuss first appeals; second appeals; appeals from orders; appeals by indigent persons; and appeals to Supreme Court – as mentioned in the aforementioned provisions and orders of the Code.

Appeals, while not defined in the Code of Civil Procedure, 1908 (‘the Code’), are essential components of civil law procedures. In practice, appeals tend to be applications or petitions to a higher court (known as the appellate court) for re-visiting a decision, decree, or order of a lower court. The provisions dealing with appeals, and laying down the appropriate procedures to be followed in every case are provided in Sections 96 to 109 of the Code, read with detailed rules in Orders 41-45 of the Code.

Introduction

  • What is an appeal under the Code?

The term “appeal” has not been duly defined in the Code. It is an application or petition to a higher court to reconsider the decision rendered by a lower court. It is ultimately a proceeding to be undertaken by a higher authority in re-appreciating the decision given to the court of lower authority.[1] Thus, as a rule of thumb, any application by a party to a higher court (or appellate court) praying to set aside or reverse a decision of a lower court, is seen as an appeal within the normal use of the term in legalese.[2]

  • Is appeal a matter of, right?

While not defined in the Code, the appeal remains a creation of statute and the right of appeal is not an inherent or natural right accruing to the party seeking it. In Zair Hussain v. Khurshed Jan,[3] the Allahabad High Court held that

“…Unless a right of appeal is clearly given by a statute, it does not exist. Whereas a litigant has independently of any statute a right to institute any suit of civil nature in one court or another.”

  • What are the provisions relating to appeal under the Code?

As for provisions of the Code, they are as follows

  • Appeals from original decrees/judgments: (Section 96-99A)
  • Appeals from appellate decrees/judgments: (Section 100-103)
  • Appeals from Orders (Section 104-106)
  • General Provisions Relating to Appeals (Section 107-108)
  • Appeals to the Supreme Court (Section 109)

As for Orders under the Code, they are as follows

  • Appeals from Original Decrees (Order 41, Rules 1-37)
  • Appeals from Appellate Decrees (Order 42, Rules 1-3)
  • Appeals from Orders (Order 43, Rules 1-2)
  • Appeals by Indigent Persons (Order 44, Rules 1- 17)

I. Appeals from Original and Appellate Decrees (Section 96-103; Order 41-Order 42)

  • Appeals from original decrees

Per Section 96(1) of the Code, an appeal under Section 96 will lie against every decree passed by any court exercising original jurisdiction, unto the court imbued with the authority to hear appeals from decisions of the former court.[4] According to the Code, an appeal may lie from an original decree passed ex parte of the appellant in question.[5] The course of action open to the defendant who has been served with an ex parte decree was discussed in Bhanu Kumar Jain v. Archana Kumar.[6]

In that case, it was held that the defendant has two clear options in case an ex parte decree is passed. One is to file an appeal and another to file an application under Order 9, Rule 13 to set aside the impugned order. However, in case the application under Order 9, Rule 13 is dismissed, he cannot then file a first appeal in order to dispute the correctness of the ex parte decree. In this case, the plaintiff had filed a partition suit against his wife and offspring, however, the latter did not appear in court or file any written statements.

Eventually, an ex-parte decree was passed against them, which they attempted to circumvent by making an application under Order 9, Rule 13 which was dismissed by the lower court. The respondents then tried to file an appeal on the same contention which was challenged by the appellant herein.

The Code prohibits that a consent decree (a decree passed by the Court with the consent of the parties) should be appealed.[7] Thus, in keeping with Section 96(3), it follows that no appeal lies from the award of the Lok Adalat as it is an order under the consent of the parties, and is also deemed to be a decree of the civil court, within the meaning of the Code.[8] Further, no appeal lies against the decree passed by small cause court, if the value of the subject matter does not exceed Rs. 10,000/- except on a question of law.[9]

As per Section 97, where a party does not appeal a preliminary decree that he is aggrieved by, he is then precluded from disputing the validity of the same in any appeal preferred against the final decree in the case.[10]

Section 98 sets out the procedure where an appeal is heard by two or more judges. It states that the appeal shall be decided by the bench of such judges or the majority of the bench of such judges.[11] However, in the situation that the bench is unable to come to a consensus opinion as to whether a judgment is rendered such that the appeal is reversed or varied, then the decree shall be confirmed.[12]

The confirmation of this decree, however, is provided that the bench hearing the appeal is [composed of 2 or more even a number of judges belonging to a court comprising of more judges than those constituting the bench] and the judges composing the bench differ on a point of law- then the appeal will be heard upon that point by one or more of the other judges, with the point being decided by the majority opinion of the judges that have first heard the appeal.[13]

Sub-section (3) of Section 98 provides that nothing under this section would alter or affect otherwise the provision of letters patent of any High Court, such as the letters patent appeal which is specifically saved in Section 104(1) of the Code.[14]

Sections 99 and 99A mention negative considerations in the appreciation of a decree during the first appeal before a court. Section 99 provides that no decree would be reversed or substantially varied or remanded or modified for error or irregularities not affecting the merits or jurisdiction of the case. The section sets out a list of such errors or irregularities, and they include misjoinder or non-joinder of parties; or causes of action; or any error, defect, or irregularity in any proceedings in the suit.[15]

The section clarifies that a non-joinder of necessary parties to a suit shall not be included within the meaning of Section 99. Per Section 99A, it is mentioned that no order under Section 47 (attachment of share in movables) is to be reversed or modified unless the decision of the case is prejudicially affected. Similar to the previous provision, this section states that without affecting the generality of the previous section, no order under Section 47 of the Code shall be reversed or substantially varied on account of any error, defect, or irregularities in any proceedings relating to such order unless such errors prejudicially affect the decision of the case.[16]

  • Appeals from Appellate Decrees

Per Section 100 of the Code, an appeal to a high court from a decree of an appellate court subordinate to it is called a second or special appeal.[17] Such an appeal is allowed on the ground that the case involved a substantial question of law.[18] The existence of a substantial question of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code.[19]

A second appeal may also lie from an ex-parte decree.[20] Further, the provision mentions that the memorandum of appeal shall state the substantial question of law that is involved in such appeal.[21] The high court must then also formulate such a question if it is satisfied that question of law is involved.[22]

In addition to this statutory mandate, it has also been held that the high court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the substantial appeal: failure to do so would vitiate the adjudication itself.[23] Further, at the hearing of the appeal, the respondent shall be allowed to contend before the court that the appeal does not involve the formulated question.[24]

However, the proviso to Section 100(5) explains that during the course of the hearing, the high court may hear the appeal on a question not formulated earlier if deemed fit- thus highlighting the discretionary power afforded to the high court in hearing second appeals.[25]

  • What is a substantial question of law for purposes of the second appeal?

What constitutes a substantial question of law is the sole ground upon which a second appeal lies. Various case-law has expanded and clarified what does and does not fall within this ground for the purposes of preferring a second appeal under the Code. As per Govindaraja v. Mariamman,[26] it was held that

“…scope of exercise of the jurisdiction by the High Court in the second appeal under section 100 is limited to the substantial question of law. To be a substantial question of law it must be debatable, not previously settled by the law of the land or a binding precedent, and answer to the same will have a material bearing as to the rights of the parties before the court.”[27]

In that case, the appellant defendant and respondent plaintiff were litigating for possession of the suit property, with both the parties claiming to be purchasers of the suit property, being related to the last undisputed owner of such property. The Supreme Court in this case finally accepted the appeal, but not before making some important observations as to the interpretation of Section 100 of the Code and noted that the counsel for respondent could not formulate a question of law which could be said to be arising in the second appeal.

In Smt. Vidya Wati through her LRs. v. Hans Raj through his LR.s[28], it was held that the interpretation of a contract is a substantial question of law and thus can be examined in a second appeal before the appellate court.

Questions before the court may be questions of fact, questions of law, or mixed questions of fact and law. Normally, the high court, while dealing with a second appeal, will not permit a new argument or contention based on a question of the fact to be revised.[29] In fact, is provided in Section 102 that no second appeal shall lie before a court apart from those mentioned under Section 100 of the Code.[30]

This is because the trial court is the first court of instance and appellate courts are statutorily limited to appreciate a substantial question of law that has been formulated, and not review the factual findings of the lower court[31]– however, on occasion, the High Court may interfere with a finding of fact of the lower court if the court below ignored the weight of some key evidence altogether.[32]

In the same way, a plea involving a mixed question of law and fact also cannot be allowed for the first time.[33] The high court cannot interfere in appeal and modify the decree on a question that did not arise for consideration in the suit or in the appeal and on which neither any evidence nor any finding was recorded.

Thus, while there is no absolute bar on the re-appreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances. Section 103 deals with the power of the High Court to determine issues of fact, and states that it is a discretionary power of the High Court to determine issues which have not been determined by either or both of the lower courts; a wrong decision based on a substantial question of law as mentioned in Section 100 of the Code.

There is a bar on appeal in certain cases, and this is discussed in Section 100A of the Code. An intra-Court appeal within a high court against the original or appellate decree or order of a single judge is not maintainable notwithstanding anything contained in the High Court Rules or the Letters Patent to the contrary.[34] Thus a Letters Patent Appeal (‘LPA’) would not be maintainable against the judgment and order passed by a Single Judge of the high court in view of Section 100A.

Order 41

Order 41 deals with appeals from original decrees and is to be read with Sections 96-99A of the Code. This section will focus on the more important rules, and while discussing the other rules in brief.

Rules 1-4 deal with a form of appeal and memorandum. Rules 5-8 deal with a stay of proceedings and execution, while Rules 9-15 state the procedure on the admission of appeal. The procedure on hearing is covered in Rules 16-29 and the judgment in appeal is mentioned under Rules 30- 34. Finally, the procedure related to the decree in the appeal is covered in Rules 35-37.

  • Rule 1: Form of appeal

The form of appeal is to be set forth in the form of a memorandum signed by the appellant or his pleader and presented to the court or to its office.[35] The contents of the memorandum must set forth, in concise terms and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, in numbered form.[36]

According to Rule 1(3), after the memorandum of appeal is ready, it is to be presented to the court along with a copy of the decree and the judgment. The memorandum will be admitted if it is in proper form. Where the appeal is preferred against a decree for payment of money, the appellant shall deposit the disputed amount in court or furnish such other security within the time granted by the court.

  • Rule 2: Grounds that may be taken in the appeal

This rule provides that the appellant shall not, except with the leave of the court, urge to be heard in support of any ground of objection not set forth in the proper form in the memorandum of appeal- however, the appellate court is not prohibited to the grounds of objections set forth in the memorandum in determining the appeal before it. This is provided that the court shall not ground its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

  • Rule 3A: Application for condonation of delay

This rule provides that when an appeal is presented after the expiry of the period of limitation specified for the purpose of that particular suit, it shall then be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period.[37] What constitutes sufficient cause may be determined by the Court itself.

In case the Court sees no reason to reject the application without the issue of a notice to the respondent, a notice to that effect shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Order 41, rule 11 or rule 13 (it should be noted that rule 13 has been repealed by the 1999 amendment to the Code) as the case may be.[38] This rule also provides that the court shall not order a stay of execution of the impugned decree unless the court decides against hearing the appeal as provided in rule 11 of the Code.[39]

  • Rule 11: Power to dismiss the appeal without sending a notice to the lower court

The appellate court has the discretion to dismiss the appeal after hearing the appellant on a stipulated day.[40] In case the appellant does not appeal on the stipulated day for which hearing the appeal is scheduled, the court has the discretion to order the dismissal of the appeal.[41] This rule provides that the dismissal of an appeal under this rule is statutorily required to be notified to the lower court from whose decree the appeal is preferred.[42]

In case of an appellate court that is not the High Court, dismissing an appeal under this rule, a judgment is required to be delivered with grounds for the dismissal and a decree must accompany said judgment.[43]

  • Rules 17: Dismissal of appeal for appellant’s default

This rule provides that the court has the discretion to order the dismissal of an appeal in case the appellant does not appear when the appeal is called on for hearing: although it is clarified that in sub-rule (1) of Rule 17 shall be construed as empowering the Court to dismiss the appeal on the merits.[44] In case the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.[45]

  • Rule(s) 23-23A: Remand

These rules speak of remand of the case by appellate court and remand in other cases. Rule 23 provides that Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, with specific directions to the lower court to re-admit the suit under its original number in the register of civil suits and proceed to determine the suit.

Further, any evidence recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. This is in a situation wherein the impugned decree has been disposed on a preliminary point by the court against whose decree an appeal is preferred and decree is reversed in appeal.

According to Rule 23A, the Appellate Court is statutorily endowed with the same powers as it has under rule 23 when a re-trial of a case is considered necessary where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point.

  • Rule 26-27: Findings and evidence to be put on record

With reference to the procedure followed in the appellate court, it is stated that the relevant evidence and findings shall form part of the record in the suit and either party has the discretion to present a memorandum of objections to any finding, within a time to be fixed by the Appellate Court.[46] After the expiration of the period so fixed for presenting such a memorandum, the Appellate Court is mandatorily required to determine the appeal.[47]

Rule 27 deals with the production of additional evidence before the appellate court. As mentioned above, additional evidence, either oral or documentary, is generally not presented by either party at the appellate stage, however, the exceptions to this are listed in this provision. If any additional evidence is allowed, the court is mandated to record the reasons for such admission.[48] Additional evidence is allowed in the following conditions:[49]

“(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.”[50]

  • Rule(s) 30-34: Judgment in appeal

Rule 30 mentions when and where the judgment is to be pronounced and provides that the court shall pronounce the judgment in open court, with due notice to the parties or their pleaders.[51] Further, in case of a written judgment, it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment is pronounced.[52]

The rule states that it is sufficient if the points for determination, the decision thereon, and the final order passed in the appeal are read out. The judgment itself may be for confirming, varying, or reversing the decree from which the appeal is preferred.[53] Otherwise, if the parties to the appeal agree as to the form which the decree or order in appeal shall take, the Appellate Court may pass a decree or make an order accordingly.[54]

Rule 31 provides that the following must be contained in the written judgment:[55]

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and,

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

Rule 33 deals with the power of a court of appeal and lays down that Appellate Court shall have the power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. This power is notwithstanding that the appeal is preferred to only part of the decree, and such power may be exercised as against or in favor of all or any of the respondents or parties, regardless of whether such respondents or parties may not have filed an appeal or objection.

In case of cross-suits or in case of two more decrees passed in one suit, the Appellate Court can exercise said power in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. However, this is provided that Appellate Court shall not make any order under section 35A, that is order as to costs, for purposes of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. The illustration provided in the rule reads as follows:

Illustration. ‘A’ claims a sum of money as due to him from ‘X’ or ‘Y’, and in a suit against both obtains a decree against ‘X’. ‘X’, appeals, and ‘A’ and ‘Y’ are respondents. The Appellate Court decides in favor of X. It has the power to pass a decree against ‘Y’.

Finally, Rule 34 holds that dissent is to be recorded, in writing when any judges dissents from the judgment of the court where the appeal is heard by more than one judge. Reasons may be provided for the same.

Order 42

Order 42 deals with the appropriate procedure to be followed in Appeals from Appellate Decrees. This Order is to be read with Section(s) 100-103 of the Code. This Order holds that the rules for original decrees (Order 41) shall apply as much as may be, to appellate decrees. [56]

Further, Rule 2 provides that the Court is statutorily required to formulate the substantial question of law as required by section 100 of the Code, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, complying with the section 100.[57]

Rule 3 states it shall not be necessary to serve notice of any incidental proceeding to an appeal on any respondent other than one impleaded unless he has appeared and filed an address for the service in the Court to which the appeal was preferred from the original decree or order or has appeared in the appeal.

II. Appeals From Orders (Sections. 104-106; Order. 43)

The lists of suits are given in Section. 104 and Order 43, Rule. 1 gives an idea of which orders are appealable at a glance. Further, this Order holds that the rules for original decrees (Order 41) shall apply as much as may be, to appeals from orders.[58] Under Section 104, which is an exhaustive provision, it follows that appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force

(ff) an order under Section 35A;

(ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;

(g) an order under Section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in the execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules:
[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]

Section 104 also provides that no appeal shall lie from any order passed in appeal under this section.[59]

Section 105 provides that no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction. However, where a decree is appealed from, any error, defect, or irregularity in any order, affecting the decision of the case, maybe set forth as a ground of objection in the memorandum of appeal.[60] It also provides that any party so aggrieved by an order of remand, does not appeal where an appeal lies, he thereafter is precluded from disputing its correctness.[61]

Section 106 lays out what Courts will hear appeals. It follows where an appeal from any order is so allowed, it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or

As mentioned above, Order 43, Rule 1 is to be read with Section 104. According to Order 43, Rule 1, an appeal shall lie from the following orders under the provisions of section 104, namely: — [62]

“(a) An Order under Rule 10 of Order VII returning a plaint to be presented to the proper Court 1[except where the procedure specified in Rule 10A of Order VII has been followed];

(c). An Order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

(d) An Order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;

(f) An Order under Rule 21 of Order XI;

(i) An Order under Rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;

(j) An Order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale;

1[ja) An Order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that order on the original application, that is to say, the application referred to in sub-rule (l) of rule 105 of that Order is appealable;]

(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;

(l) an order under rule 10 of Order XXII giving or refusing to give leave;

(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;

1[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;]

(p) orders in interpleader-suits under rule 3, rule 4, or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3, or rule 6 of Order XXVIII;
(r) an order under rule 1, rule 2, 1[rule 2A], rule 4 or rule 10 of Order XXXIX;

(s) an order under rule 1 or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal;

(u) an order under rule 23 1[or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate court;

(w) an order under rule 4 of Order XLVII granting an application for review.”

Rule 1A(1) states that there exists the right to challenge non-appealable orders in an appeal against decrees by contending that such order should not have been made and the judgment should not have been pronounced, where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up. This also refers to consent or compromise decrees.[63]

III. General Provisions (Section 107-108)

The general provisions herein relate to the powers of Appellate Court, and subject to such conditions and limitations as may be prescribed, the Appellate court has the power to do the following[64]

(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.

Section 107(2) of the Code notes that the appellate court has the same powers as the courts of original jurisdiction in respect of suits instituted therein as specified under Section 107. Section 108 deals with general procedure in appeals from appellate decrees and orders. It follows that the parts that apply to appeals from original decrees shall, so far as may be, also apply to appeals:[65]

(a) from appellate decrees, and
(b) from orders made under this Code or under any special or local law in which a different procedure is not provided.

IV. Appeals To Supreme Court (Section 109; Order 45)

Section 109 of the Code states that an appeal lies to the Supreme Court from any judgment, decree, or final order of a high court in a civil proceeding of the high court, if the high court in question, provides certification to the effect that the case involves a substantial question of law of general importance, and that in the opinion of the high court, the said question needs to be decided by the Supreme Court. Section 109 provides for the substantive provision relating to appeals to the Supreme Court. However, the procedure in such cases is provided in Order 45, which is to be read with Section 109.

Order 45, Rule(s) 1-3 states that a party desiring to appeal to the Supreme Court should apply by petition to the court. Every petition should state the grounds of appeal, a prayer for a certificate, that the case fulfills the conditions mentioned above, that is the conditions mentioned in Section 100 of the Code, as regards appeal to the Supreme Court.[66]

Further, in accordance with Order 45, Rule(s) 3-7, upon the receipt of such petition, the court shall direct that notice be served on the opposite party to show cause why the certificate should not be granted. When granted, the applicant should, within ninety days, furnish security for the cost of the respondent and deposit the amount required to defray expense for preparing a copy record of the for transmitting it to the Supreme Court.

Where security has been permitted and a deposit made in the prescribed form, the court should declare appeal admitted, give notice thereof to the respondent, and transmit to Supreme Court, the correct copy of the said record. Pending the appeal, the Court retains the power to order certain actions in case it thinks fit and on special cause shown by any party interested in the suit or appearing to the Court. These include:[67]

“(a) impound any movable property in dispute or any part thereof, or

(b) allow the decree appealed from to be executed, taking such security from the respondent as the Court thinks fit for the due performance of any order which [the Supreme Court] may make on the appeal, or

(c) stay the execution of the decree appealed from, taking such security from the appellant as the Court thinks fit for the due performance of the decree appealed from, or of [any decree or order] which the [the Supreme Court] may make on the appeal, or

(d) place any party seeking the assistance of the Court under such conditions or give such other direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a receiver or otherwise”.

Order 45, Rule 13 states that the court stay the execution, taking proper security from the appellant, or it may allow the decree to be executed while taking proper security from the respondent. Order 45, Rule 15 states that a party desiring obtains the execution of the order of the Supreme Court should apply by petition the court from which the appeal was preferred. Such court should then transmit the order to the court which passed the first decree appealed from with directions to execute it.[68]

V. Appeals By Indigent Persons (O. 44)

Rule 1 of this Order defines who may appeal as an indigent person and holds that “Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal,” may be allowed, to present an application along with the memorandum of appeal. With the leave of the court, such a person may be allowed to appeal as an indigent person.[69]

It is to be noted that Order 44 should be read with Order 33, Rules 1-18, which deal with ‘Suits by Indigent Persons.’

In case an application is rejected under Order 44, Rule 1, then Order 44, Rule 2 grants time for payment of court fee within a specified time, and upon such payment, the memorandum of appeal will have the same force and effect as if the court fee had been paid in the first instance.

As is also mentioned in Order 33, Rule 1A, this Order also contains a rule dealing with an inquiry as to whether the applicant is an indigent person. To this end, in case an applicant was allowed to sue under Rule 1 of this Order, Rule 3(1) states that no further inquiry in respect of the question of whether or not he is an indigent person shall be necessary.

This is provided that the applicant has made an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from.[70] Moreover, in case the Government pleader or the respondent disputes this, an inquiry into the question may be made by the appellate court, by or through an officer of the court.[71]

Rule 3(2) provides for the circumstance wherein the applicant alleged to have become an indigent person since the date of the decree appealed from, the inquiry into whether the same is indeed indigent is statutorily required to be made by the Appellate Court or, under the orders of the Appellate Court, by an officer of that Court, unless held unnecessary by the Appellate Court.

Conclusion

The present article has discussed in detail the provisions under the Code that deal with appeals under civil law including first appeals, second appeals, appeals from orders, appeals by indigent persons, appeals to the supreme court. In this regard, the discussion has included Sections 96 to 109 of the Code and Orders 41 to 45 of the Code.


[1] Sita Ram v. State of Uttar Pradesh, AIR 1979 SC 745.

[2] D.F. Mulla, Key to Indian Practice: A Summary of the Code of Civil Procedure, 11th ed., 2016.

[3] (1906) 28 All. 545

[4] Section 96(1), Code of Civil Procedure, 1908.

[5] Section 96(2), Code of Civil Procedure, 1908.

[6] AIR 2005 SC 626.

[7] Section 96(3), Code of Civil Procedure, 1908.

[8] Supra, at note 2.

[9] Ibid.

[10] Section 97, Code of Civil Procedure, 1908.

[11] Section 98(1), Code of Civil Procedure, 1908.

[12] Section 98(2), Code of Civil Procedure, 1908.

[13] Proviso to Section 98(2), Code of Civil Procedure, 1908.

[14] Supra, at note 2.

[15] Section 99, Code of Civil Procedure, 1908.

[16] Section 99A, Code of Civil Procedure, 1908.

[17] Section 100(1), Code of Civil Procedure, 1908.

[18] Ibid.

[19] Commr. of Hindu Religious & Charitable Endowment vs. P. Sharmugama & Anr., AIR 2005 SC 770.

[20] Section 100(2), Code of Civil Procedure, 1908.

[21] Section 100(3), Code of Civil Procedure, 1908.

[22] Section 100(4), Code of Civil Procedure, 1908.

[23] Bashir Ahmed v. Abdul Rahman, AIR 2004 SC 3284.

[24] Section 100(5), Code of Civil Procedure, 1908.

[25] Proviso to Section 100(5), Code of Civil Procedure, 1908.

[26] AIR 2005 SC 1008.

[27] Ibid.

[28] AIR 1993 Del 187.

[29] Tirumala Tirupati Devasthanam vs. KM Krishnaiah, AIR 1998 SC 1132.

[30] Section 102, Code of Civil Procedure, 1908.

[31] Supra, at note 2.

[32] Ajab Singh vs. Shital Puri, AIR 1993 All 138.

[33] Supra, at note 2.

[34] Section 100A, Code of Civil Procedure, 1908.

[35] Order 41, Rule 1(1), Code of Civil Procedure, 1908.

[36] Order 41, Rule 1(2), Code of Civil Procedure, 1908.

[37] Order 41, Rule 3(1), Code of Civil Procedure, 1908.

[38] Order 41, Rule 3(2), Code of Civil Procedure, 1908.

[39] Order 41, Rule 3(3), Code of Civil Procedure, 1908.

[40] Order 41, Rule 11(1), Code of Civil Procedure, 1908.

[41] Order 41, Rule 11(2), Code of Civil Procedure, 1908.

[42] Order 41, Rule 11(3), Code of Civil Procedure, 1908.

[43] Order 41, Rule 11(4), Code of Civil Procedure, 1908.

[44] Order 41, Rule 17(1), Code of Civil Procedure, 1908.

[45] Order 41, Rule 17(2), Code of Civil Procedure, 1908.

[46] Order 41, Rule 26(1), Code of Civil Procedure, 1908.

[47] Order 41, Rule 26(2), Code of Civil Procedure, 1908.

[48] Order 41, Rule 27(2), Code of Civil Procedure, 1908.

[49] Order 41, Rule 27(1), Code of Civil Procedure, 1908.

[50] Ibid.

[51] Order 41, Rule 30(1), Code of Civil Procedure, 1908.

[52] Order 41, Rule 30(2), Code of Civil Procedure, 1908.

[53] Order 41, Rule 32, Code of Civil Procedure, 1908.

[54] Ibid.

[55] Order 41, Rule 31, Code of Civil Procedure, 1908.

[56] Order 42, Rule 1, Code of Civil Procedure, 1908.

[57] Supra, at note 2.

[58] Order 43, Rule 2, Code of Civil Procedure, 1908

[59] Section 104(2), Code of Civil Procedure, 1908.

[60] Section 105(1), Code of Civil Procedure, 1908.

[61] Section 105(2), Code of Civil Procedure, 1908.

[62] Section 104(1), Code of Civil Procedure, 1908.

[63] Order 43, Rule 1A(2), Code of Civil Procedure, 1908.

[64] Section 107, Code of Civil Procedure, 1908.

[65] Section 108, Code of Civil Procedure, 1908.

[66] Supra, at note 2.

[67] Order 41, Rule 13(2)(a)-(d), Code of Civil Procedure, 1908.

[68] Order 45, Rule 15(2), Code of Civil Procedure, 1908.

[69] Order 44, Rule 1, Code of Civil Procedure, 1908.

[70] Order 44, Rule 3(1), Code of Civil Procedure, 1908.

[71] Ibid.


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Updated On 2022-02-19T15:45:43+05:30
Devanjali Banerjee

Devanjali Banerjee

West Bengal National University of Juridical Sciences

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