Short essay on Appeals

Part 7 of CPC consisting of Sections 96 to 112 as well as Order 41 to 45 CPC deal with appeals.

Out of these Sections 100 to 103 CPC deal with second appeals before High Courts whereas Sections 109 to 112 CPC deal with appeals to the Apex Court.

Similarly, Order 42 deals with second appeals to High Court whereas Order 45 deal with appeals to Supreme Court [Chapter 13 of Civil Rules of Practice: Rules 166 to 171 also deal with appeals].

Section 109 CPC empowers the Supreme Court to hear appeal from any civil proceeding before a High Court, subject to any limitation prescribed by the constitution, and if the High Court concerned certifies that the case involves a substantial question of general importance or that the High Court considers that the question involved in the case needs to be decided by the Supreme Court.

However, Section 112 CPC saves the power vested in the Supreme Court under Article 136 of the Constitution. Article 136 of the Constitution provides that the Supreme Court may hear any appeal passed by any Court or Tribunal in India if the Supreme Court considers it just and proper.

Thus, irrespective of the savings under Section 112, CPC, the Supreme Court has power to hear an appeal from any order of any Court or Tribunal, whether the order is of civil, criminal, constitutional, administrative, or revenue jurisdiction otherwise.

Order 45 provides rules for laying appeals before Supreme Court.

Bar of appeals from decrees in suits of the nature cognizable by Small Cause Courts: – The bar of appeal, except on a question of law, has been increased from Rs.3, 000/- to Rs. 10,000/- (the value of the subject matter of the suit) in respect of suits cognizable by Small Cause Courts.

This amendment does not apply to appeals already admitted before the commencement of the amending Acts.

All High Courts are empowered to hear appeals from appellate decrees, known as Second Appeals. Section 102 CPC prohibits Second Appeal from a Small Cause Appeal where the amount involved is less than Rs. 10,000/- This is so since no appeal lies from a small cause suit’s decree, except on a question of law, if the value of the case is less than Rs. 10,000/-.

Hence the Parliament thought it fit not to provide for a Second Appeal on question of law if the subject matter of the list is less than Rs. 25,000/-.

Section 100 CPC is positive in wording that a Second appeal lies on a question of law from an appellate decree. In fact, the law is pronounced in negative terms in this regard that no Second Appeal lies on question of fact. In practice, when a Second Appeal is filed before the High Court, it should be shown to the court that there is a substantial question of law involved in the case before the Second Appeal could be admitted for hearing.

Order 42 CPC prescribes the rules for Second Appeals.

Under the Amendment Act 22 of 2002, where a single Judge of High Court disposed of an appeal either from an appellate decree or original decree, no further appeal lies.

But, the said bar does not apply to proceedings under Article 226 or 227 of the Constitution.

Section 102 has also been amended to the effect that no second appeal lies against a decree where the value of the subject matter of the suit for recovery of money does not exceed Rs.25,000/-.

In mofussils, the Courts come across only appeals from decrees or orders. They are provided by Section 96 to 99-A & 104, 108 CPC as well as Order 41 & 43 CPC.

General Rule is that every decree is appealable. But, appeal does not lie from a decree passed on the consent of parties on both sides. Further, in small cause cases, no appeal lies except on a question of law, if the value of the case is less than Rs. 10,000/-. However, appeal may lie from ex parte decree.

Revision is provided under Section 115 CPC. Revision lies only to High Courts when subordinate court either has failed to excercise the jurisdiction vested in it or have acted on the jurisdiction illegally, or has excercised jurisdiction not vested in law and Courts inferior to High Courts do not have power of Revision. There is distinction between Appeal and Revision.

Apart from the Scopes of Revision being limited vis-a-vis appeals, an appeal is a continuation of the proceedings. Consequently an appellate authority has the power to review the evidence. [AIR 1982 SC 1585]. A revision lies when no appeal is provided.

Section 97 envisages the principle of estoppel. It provides that if no appeal is preferred from a preliminary decree, the preliminary decree cannot be assailed in an appeal preferred from a final decree. In other words, the appellant shall confine himself the question involved in the final decree only, if appeal had not been preferred from a preliminary decree.

The Code provides a bar in respect of appeals regarding procedural matters. Section 99 CPC ordains that no appeal can be allowed merely because there was procedural irregularity including mis-joinder or non-joinder of parties or causes of action: the embargo does not apply to questions of non-joinder of necessary parties.

This is so since the non-joinder of a necessary party hits the case at the roots. Section 99-A CPC further provides that an order passed under Section 47 CPC (arising in execution proceedings) cannot be interfered in appeal even on grounds of error, defect or irregularity unless it is shown that the order has prejudicially affected the decision of the case.

While Sections 96 to 99-A CPC deal with appeals from decrees, i.e., in suits, Section 104 CPC provides for appeals from four varieties of orders and also provides that appeals can be preferred from any other order if so provided in Order 43 Rule 1 CPC lists out appealable orders in respect of which also appeals can be filed.

Appellate courts decide the case finally, or remand the appeal to trial court, or frame issues and refer them for trial or take additional evidence, [Section 107 CPC]. These powers are in addition to the powers that a trial court possesses.

The right of appeal is a substantive right. It is not a procedural right. [AIR 1959 Punjab 123], consequently, if right of appeal exists on the date of the decree, it cannot be taken away latter by enactment, though new enactment can change the forum. For instance, instead of providing appeal to a civil court, appeal can be provided to lie to a Tribunal.