Articles

Appeal from Original Decree under Order 41 of CPC

This article is written by Sreeya Chowdary Kesanapalli, a student of Gitam School of Law, Visakhapatnam

Introduction

Decree is Defined u/s 2(2) of Civil Procedure Code, 1908. It means the formal expression of an adjudication which conclusively determines the rights of the parties concerning all or any of the matter in controversy in the suit. A decree may be either preliminary or final.

Essentials Elements Of A Decree

The decree is a decision of the court. For any decision of the court to be a decree, the following essential elements are required:

  1. There must be adjudication.
  2. The adjudication should be done in a suit.
  3. It must determine the rights of parties regarding the matter in dispute.
  4. The determination of the right should be conclusive.
  5. There must be a formal expression of such adjudication.

Section 96 Of Code Of Civil Procedure 1908 “Appeal From Original Decree” 

(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 the Court authorized to hear appeals from the decisions of such Court.

(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 parties’ consent.

(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 Cause, when the amount or value of the subject matter of the original suit does not exceed three thousand rupees.

According to Section 96:

 a) Appeal will lie from an original decree passed ex-parte, 

b) No appeal will lie from the consent decree. It is based on the principle of estoppels; it presupposes that the parties to an action can, expressly or impliedly, waive or forgo their right of appeal by any lawful agreement or compromise or even by conduct. But it doesn’t apply when it is challenged that the compromise was not arrived at lawfully. 

c) If a decree has been passed by the court of small causes where suit value does not exceed ten thousand rupees, appeal will lie only on a question of law. It has been done so as to reduce appeals in petty cases. It bars appeals except on points of law. 

• Sections 96-99+Section 107+Order 41 deal with first appeals. 

• In the first appeal, parties have a right to be heard- both on questions of law and fact. 

• First appellate court has to write a self-contained judgement, give reasons for its decision on the points of determination, and consider all the evidence on record. Read it with Order XLI Rule 31. 

• First appellate court is the final court of facts; it has to consider all the evidence on record, must consider reasons given by the trial court for its findings. 

• Section 96 provides for the first appeal and section 100 provides for second appeal.

Right Of Appeal 

• There is no natural or inherent right to appeal. It is a statutory right, and it can be conditional or qualified. 

• It exists only when a statute confers it. 

• The scope of such right is also determined by the statute that confers it. 

• It is a substantive right. 

• This vested right can be taken away only by a subsequent enactment if it so provides expressly or by necessary implication and not otherwise. 

• Right to appeal is a universal requirement because all men are fallible, and judges are human beings and may commit a mistake.

 • Right to file a suit is an inherent right unless the suit is barred by a statute but the right to file an appeal is conferred by the Statute only. 

• While a suit creates a cause, an appeal reviews and corrects the proceedings in a cause already constituted

Appeal With The Aid Of Some Of The Parties

 Order 41 Rule 4 offers as under “One of numerous plaintiff or defendants may also reap reversal of entire decree where it proceeds on ground common to all. – Where there are greater plaintiffs or greater defendants than one in a suit, and the decree appealed from proceeds on any floor not unusual to all the plaintiffs or to all of the defendants, any one of the plaintiffs or of the defendants might also enchantment from the whole decree, and thereupon the Appellate Court may additionally opposite or range the decree in favour of all of the plaintiffs or defendants, as the case may be.”

Admission Of Appeal

 Under Order 41 R. 11 C.P.C. Appeal is heard in admission. Prior to 2002 Amendment of C.P.C. Records of the Court below will be referred to as for earlier than such hearing. However, after 1.7.2002 whilst applicable Amendment of 1999 became enforced such electricity is not there. First Appeal under Section 96 C.P.C. shall usually be admitted and now not disregarded in limine vide Union of India v. K. V. Lakshman.

Dismissal In Default Of Appeal Ex-parte Hearing And Restoration

 Before 1976-77 Amendment of Order 41Rule 17 C.P.C. There has been battle of opinion amongst unique High Courts regarding strength of the courtroom in case the appellant does no longer appear and only respondent seems, there has in no way been any doubt that in such a scenario, appeal can be disregarded in default, however, the difference of opinion was as to whether or not in such situation appeal can be brushed off on merit or not.

Judgements

In Union of India v. Ibrahim Uddin,

 Scope of order 41 Rule 27 has been discussed in detail and it has additionally been held that software for additional evidence shall be taken into consideration along with hearing of appeal. 

In Union of India v. K.V. Lakshman 

The High Court in the First Appeal refrained in rejecting the application, and it should have taken additional evidence sought to be adduced by the appellant on file because, among other things, it turned into the Union of India, deserving greater indulgence in such procedural matters, and the documents sought to be adduced public files.

Conclusion

To summarize, the appeal is a substantive right and a matter between parties. The court hearing the appeal will be the only one to decide whether or not the appeal is competent. Appeals are recognized as statutory rights for anyone who has been wronged by a lower court’s decision in the interest of In the case of an appeal to the first appellate authority, the period of limitation is 90 days, and in the case of an appeal to the High Court, it is 180 days. Finally, it can be stated that the CPC’s provisions comprehensively address both substantive and procedural issues of all types of appeals while making explicit revisions to accommodate more specialized legislation. The Code of Civil Procedure specifies a type of appeal known as a first appeal.

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