Code of Civil Procedure, 1908 (CPC)
First Appeals: Sections 96 to 99A and Order XLI CPC
A first appeal is not a review of the trial court's reasoning but a rehearing of the case. The appellate court may look again at the whole evidence, reach its own conclusions on fact as well as law, and pass whatever decree the trial court should have passed. Sections 96 to 99A of the Code of Civil Procedure, 1908 confer and limit the right, and Order XLI supplies the procedure from the memorandum to the judgment. These notes cover the nature and scope of the right, the memorandum and grounds, stay of execution, the powers of the appellate court including remand and additional evidence, cross-objections, and the doctrine of merger.
The appellate ladder, and how much of the case travels up each rung
1. The Right of Appeal: Sections 96 to 99A
§ Section 96, CPC 1908 (in substance) (1) Save where otherwise expressly provided, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised 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 consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject matter does not exceed ten thousand rupees. |
§ Five propositions on the right Each is regularly tested: • It is a creature of statute. There is no inherent right of appeal; it exists only where a statute gives it, and a first appeal lies from a decree, not from a judgment or an order. • It is a rehearing on fact and law. The appellate court is the last court of fact, and it may reappreciate the whole evidence and substitute its own findings. • An ex parte decree is appealable. Section 96(2) puts it beyond doubt. The defendant thus has two concurrent remedies: an application under Order IX Rule 13 to the trial court, and an appeal under Section 96(2). Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787 holds that both are available, but that where an application under Rule 13 has been dismissed, the appellant cannot in the appeal agitate the sufficiency of the cause for his non-appearance, that question being concluded. • A consent decree is not appealable. Section 96(3) bars it, because there is no adjudication to appeal against; the remedy is an application to the same court under the proviso to Order XXIII Rule 3. • Sections 97 to 99A limit what can be raised. Section 97: a party who does not appeal a preliminary decree is precluded from disputing its correctness in an appeal from the final decree. Section 99: no decree is reversed or varied for misjoinder or non-joinder of parties or causes of action, or for any error or irregularity not affecting the merits or the jurisdiction of the court. Section 99A applies the same principle to orders under Section 47. |
2. The Memorandum and the Grounds: Rules 1 to 4
Rule | Requirement |
|---|---|
Rule 1 | The memorandum of appeal is presented to the court, signed by the appellant or his pleader, accompanied by a copy of the judgment; the court may dispense with the copy of the decree |
Rule 1(2) | The memorandum shall set forth, CONCISELY AND UNDER DISTINCT HEADS, the grounds of objection to the decree appealed from, WITHOUT ANY ARGUMENT OR NARRATIVE, and the grounds shall be numbered consecutively |
Rule 2 | The appellant shall not, except by leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum; but the court shall not rest its decision on any other ground unless the party affected has had a sufficient opportunity of contesting the case on that ground |
Rule 3 | Where the memorandum is not drawn up in the manner prescribed, it may be rejected, or returned for amendment within a time fixed, or amended then and there |
Rule 3A | Where an appeal is presented after the expiry of the period of limitation, it shall 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 it within time |
Rule 9 | The court from whose decree the appeal is preferred shall entertain the memorandum, endorse the date of presentation, and register the appeal in the register of appeals |
Rules 11 and 11A | The appellate court may dismiss the appeal SUMMARILY after hearing the appellant, without sending notice to the court from whose decree the appeal is preferred; every such appeal shall be heard as expeditiously as possible, and endeavour made to conclude the hearing within sixty days |
Rules 12 and 14 | Where the appeal is not dismissed summarily, the court fixes a day for hearing and notice is given to the respondent |
3. Stay of Execution: Rules 5 to 8
§ Order XLI Rule 5, CPC 1908 (in substance) (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred; but the Appellate Court may, for sufficient cause, order stay of execution of such decree. (3) No order for stay of execution shall be made under sub-rule (1) or (2) unless the Court making it is satisfied — (a) that substantial loss may result to the party applying for stay unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. |
§ Four points on stay The rule is strict, and deliberately so: • An appeal is not a stay. The decree-holder is entitled to the fruits of his decree, and the mere filing of an appeal does not suspend it. • Three cumulative conditions. Substantial loss, no unreasonable delay, and security. All three must be satisfied; the security requirement is not a formality and is what distinguishes a genuine application from a delaying one. • Rule 6: sale of immovable property. Where an order is made for the execution of a decree against immovable property, and an appeal is pending, the court shall, on the appellant's application and on security being furnished, stay the sale. • Rule 8: the effect of an order of stay made by the appellate court is to bind the court that passed the decree, which must give effect to it in execution. |
4. Powers of the Appellate Court: Rules 23 to 33
Power | Rule | When it is exercised |
|---|---|---|
Remand of the case | Rule 23 | Where the trial court has disposed of the suit upon a PRELIMINARY POINT and the decree is reversed in appeal, the appellate court may remand the case and direct the issues to be tried |
Remand in other cases | Rule 23A | Where the suit has been disposed of otherwise than on a preliminary point and the decree is reversed, the appellate court may remand if a RETRIAL IS CONSIDERED NECESSARY |
Determination of the case finally | Rule 24 | Where the evidence on record is sufficient, the appellate court may itself determine the suit finally, notwithstanding that the judgment proceeded wholly on a ground other than that on which the appellate court proceeds |
Framing issues and referring them for trial | Rule 25 | Where the trial court has omitted to frame or try any issue, or to determine any question of fact essential to the right decision, the appellate court may frame the issues and refer them for trial to the trial court, which returns the evidence and its findings |
Objections to the findings on remand | Rule 26 | The findings and evidence returned form part of the record; a party may, within the time allowed, present a memorandum of objections to any finding |
Additional evidence | Rule 27 | Only in the three situations the rule allows, dealt with below |
Mode of taking additional evidence | Rules 28 and 29 | The appellate court may take the evidence itself or direct the trial court or another subordinate court to take it, and must specify the points to which it is to be confined |
Passing any decree the case requires | Rule 33 | The appellate court has power to pass any decree and make any order which ought to have been passed, and to do so IN FAVOUR OF ALL OR ANY OF THE RESPONDENTS OR PARTIES, although they may not have filed any appeal or objection |
§ Order XLI Rule 27: additional evidence The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if — (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 it 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; and it shall record its reason for admission. |
The rule is restrictive on purpose. An appeal is a rehearing on the record made at the trial, and a party who failed to produce his evidence there is not given a second opportunity merely because he has lost. Clause (b) is the one most often invoked, and its limit should be stated with it: the requirement must be the court's, to enable it to pronounce judgment, and not the party's desire to fill a gap in his own case.
5. Cross-Objections: Rule 22
§ Order XLI Rule 22, CPC 1908 (in substance) (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. |
Basis | Cross-objection, Rule 22 | Cross-appeal |
|---|---|---|
What it is | An objection filed by the respondent in the pending appeal | A separate and independent appeal filed by the other party |
When filed | Within one month from service of notice of the hearing date, or such further time as the court allows | Within the ordinary period of limitation for an appeal |
Court fee | Payable on the memorandum of objection as on a memorandum of appeal | Payable as on an appeal |
If the appeal is withdrawn or dismissed for default | Rule 22(4): the cross-objection survives and may still be heard and determined | Unaffected; it stands on its own footing |
Scope | Any objection to the decree which the respondent could have taken by way of appeal | The same, as an independent appeal |
Supporting the decree | A respondent may support the decree on grounds decided against him WITHOUT filing any cross-objection at all | Not applicable |
6. The Judgment, and the Doctrine of Merger
§ Order XLI Rules 30 to 32 Rule 30. The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings to which reference may be considered necessary, shall pronounce judgment in open court, either at once or on some future day of which notice shall be given. Rule 31. The judgment of the Appellate Court shall be in writing and shall state — (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; and shall at the time that it is pronounced be signed and dated by the judge or judges concurring in it. Rule 32. The Appellate Court may confirm, vary or reverse the decree from which the appeal is preferred, or may remand the case, or frame issues and refer them for trial, or take additional evidence, as the case may require. |
§ The doctrine of merger The rule. When an appellate court passes a decree, whether it confirms, varies or reverses the decree appealed from, the decree of the lower court merges in the decree of the appellate court. Thereafter there is only one operative decree, that of the appellate court. Three practical consequences. Execution proceeds on the appellate decree, though by Section 37 it is executed by the court of first instance. Limitation for execution runs from the appellate decree. And a review or other proceeding must be directed at the surviving decree. The limits. The doctrine applies where the appellate court has considered and disposed of the matter. It does not apply where the appeal was dismissed for default or as withdrawn, nor where the superior court declined to entertain the challenge, as on a summary dismissal of a special leave petition, which is a refusal of leave rather than an adjudication. The reason it matters. A litigant who attacks the wrong decree attacks nothing, and a party who calculates limitation from the trial decree after an appeal has been decided will be out of time. |
7. Landmark Points
- Section 96. An appeal lies from every decree of a court exercising original jurisdiction; an ex parte decree is appealable; a consent decree is not; and no appeal on facts lies in small-cause suits below the prescribed value.
- Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787. Both an appeal under Section 96(2) and an application under Order IX Rule 13 are available against an ex parte decree, but a dismissed Rule 13 application concludes the question of sufficiency of cause for non-appearance.
- Order XLI Rule 1(2) and Rule 2. Grounds must be set out concisely under distinct heads without argument or narrative, and no other ground may be urged except by leave.
- Order XLI Rule 5(3). No stay without substantial loss, no unreasonable delay, and security for due performance of the decree.
- Order XLI Rules 23 and 23A. Remand where the suit was disposed of on a preliminary point and that decree is reversed, or where a retrial is otherwise considered necessary.
- Order XLI Rule 27. Additional evidence only where evidence was wrongly refused, or could not with due diligence have been produced, or where the court requires it to pronounce judgment; and reasons must be recorded.
- Order XLI Rule 22(4). A cross-objection survives the withdrawal or dismissal for default of the original appeal.
- Order XLI Rule 33. The appellate court may pass any decree that ought to have been passed, in favour of any respondent, even one who has not appealed or objected.
8. Frequently Asked Questions
What is the nature of a first appeal?
A rehearing on fact and law. The appellate court may reappreciate the whole evidence, reach its own findings and pass any decree the trial court ought to have passed. It is the last court of fact in the hierarchy.
Can an ex parte decree be appealed?
Yes. Section 96(2) expressly allows an appeal from an original decree passed ex parte, and the remedy is concurrent with an application under Order IX Rule 13. Where a Rule 13 application has been dismissed, the appellant cannot re-agitate the sufficiency of his cause for non-appearance in the appeal.
Why is no appeal allowed from a consent decree?
Because there has been no adjudication to appeal against: the decree records the parties' own agreement. Section 96(3) bars the appeal, and the remedy against a compromise decree is an application to the same court under the proviso to Order XXIII Rule 3.
Does filing an appeal stay the decree?
No. Order XLI Rule 5(1) provides that an appeal shall not operate as a stay and that execution is not stayed merely by an appeal having been preferred. A stay requires an order, and no order is made unless there is substantial loss, no unreasonable delay, and security.
When can additional evidence be produced in appeal?
Under Order XLI Rule 27: where the trial court refused evidence that ought to have been admitted; where the party shows that despite due diligence the evidence was not within his knowledge or could not be produced; or where the appellate court itself requires it to pronounce judgment or for any other substantial cause. Reasons must be recorded.
What is the difference between remand under Rule 23 and Rule 23A?
Rule 23 applies where the trial court disposed of the suit on a preliminary point and that decree is reversed in appeal. Rule 23A applies where the suit was disposed of otherwise than on a preliminary point and the decree is reversed, and the appellate court considers a retrial necessary.
What is a cross-objection?
An objection to the decree filed by a respondent in the pending appeal, which he could have taken by way of appeal, filed within one month of service of notice of the hearing date. It survives even if the original appeal is withdrawn or dismissed for default.
What is the doctrine of merger?
That once an appellate court passes a decree, the decree of the lower court merges in it, leaving one operative decree. Execution and limitation then run on the appellate decree. The doctrine does not apply where the appeal was dismissed for default or withdrawn, or where the superior court merely declined to entertain the challenge.
9. Related Topics in This CPC Series
- Second Appeals: Sections 100 to 103 and Order XLII
- Appeals from Orders: Sections 104 to 106 and Order XLIII
- Setting Aside an Ex Parte Decree under Order IX Rule 13
- Section 33 and Order XX: Judgment and Decree