Appeal

Appeals – Civil Law

Appeals – Civil Law

Almost all major legal jurisdictions consist of appeal provisions, and the civil laws are not on the contrary. The rights of appeal under the Civil Procedure Code are not natural or inherently attached to the litigation but is rendered by the statue or by rules enforced by the statue. This article delves into the concept of appeals under the Civil Procedure Code.

Grounds of an Appeal

An appeal under the Civil Procedure Code can be made under the following grounds:

  • A decision has already been made by a judicial or administrative authority.
  • A person is aggrieved of such decision, whether or not he is a party to the proceeding.
  • The appeal is entertained by a reviewing body.

Who Can File an Appeal?

Any of the following persons can file an appeal:

  • Any party to the original proceeding or his/her legal representatives.
  • Any person claiming under such party or a transferee of interests of such party.
  • Any person appointed by the court as the legal guardian of a minor.
  • Any other aggrieved person after taking leave of the court.

Who Cannot?

  • A party which has relinquished its right of appeal as per an agreement which is clear and unambiguous.
  • A party which has availed the benefits under a decree.
  • Parties with a consent decree. Consent, in this case, could be a lawful agreement or compromise, or could even be presumed from the conduct of the parties.
  • Parties, whose factum or compromise is in dispute or hasn’t been formulated.
  • Parties involved in petty cases.
  • No legal representatives are entitled to file an appeal against a deceased person.

Features of an Appeal

  • The rights of appealing are not inherent, and therefore must be created in express terms by the statue. Thus, these rights differ from the rights of filing suits, which is inherent in nature.
  • It is a substantive right.
  • The rights under this provision accrue from the day of the institution of the suit.
  • These rights cannot be made void, except through a statue (either expressly or by implication).
  • The discretion of the appellate authority is conclusive.

Appellate Authority – refers to the authority which undertakes and adjudicates the initial review appeal.

Memorandum of Appeal

Any appeal under these provisions must be supported with a memorandum of appeal, which is a document comprising of the grounds of appeal. The constituents of a valid memorandum of appeal include:

  • The grounds for filing an appeal.
  • Signature of the appellant or his/her pleader.
  • The attachment of the certified copy of the original judgement.
  • The remittance of the decretal amount or security (in case of a money decree).

The appellant, with respect to this provision, is not entitled to take any grounds or objection except the ones mentioned in the memorandum. However, the court may accept such objections on its own accord, provided the opposite party is provided with adequate opportunities to contest such grounds.

The court has the right to reject or amend any memorandum which it finds to be inappropriate. The court shall record the reasons for such rejection.

Decretal – “of the nature of a decree.”

Appeals from Original Decrees

  • Appeals from original decrees, which is performed by the appellate court, are preferred in a court which is superior in rank to the Court passing the decree.
  • Appeal for such decrees may lie on an original decree passed ex parte.
  • No appeals will be placed if the decree is passed with the consent of the parties.
  • The appeal from original decrees lies on a question of law.
  • No appeal lies in any suit of the nature cognizable by Courts of small causes if the amount or value of the subject matter of the original suit is confined to a sum of Rs. 10,000.
  • The appellate court may remand a case to a trial court if the latter has dispensed of the case without recording any findings.
  • The decision of the appellate authority is conclusive.
  • If an appeal under this provision is heard by a bench of multiple judges, the opinion of the majority will be considered.
  • In the absence of a majority, the original decree will stay.
  • Where the bench digresses on any point of view, the same may be determined by any number of the remaining judges of the court, and the decision shall be taken by a majority of the judges hearing the appeal, which includes the judges who have heard it originally.
  • The judgement may confirm, modify or reverse the decree.

Remand of a Case

Remand, in this context, refers to the reverting of a case. The appellate court may revert the case to the trial court if the latter has disposed the suit on a preliminary point without recording any findings. The appellate court may also demand the trial court to admit the suit in its original number in the register of civil suits. The evidence (if any) recorded in the original suit could be used as evidence if the case is remanded to the trial court. An order of demand disqualifies the verdict of the lower court and is appealable.

On the other hand, the appellate court is not entitled to remand a case if the lower court has misconceived the evidence or, the lower court has provided a verdict on insufficient material.

Furnishing of Additional Evidence

The general course of law doesn’t allow any parties to an appeal to produce additional evidence, be it oral or documentary. However, the appellate court may permit the same under the following circumstances:

  •  If the lower court declined the acceptance of any evidence despite having the grounds to accept the same.
  • The party adducing the evidence substantiates that the evidence was not within his/her knowledge despite exercising due diligence earlier.
  •   If the party substantiates that proper evidence could not be produced by him/her in spite of exercising due diligence.
  • The appellate court finds it essential to examine any document or witnesses to facilitate the adjudication of the case

Decree of the Appellate Court

Decree refers to the legal implications of a particular act. The decree of the appellate court shall include:

  • The date of the judgement.
  • The number of the appeal.
  • The names and description of the parties.
  • The grant of relief and any other adjudication made.
  • The total cost incurred.
  • The property from which the cost was incurred.
  • The property from which the cost will be payable.
  • The proportion of payment of costs.
  • Signature and date of the judges.

Second Appeal

Section 100 of the Civil Procedure Code provides that an appeal can be moved to the High Court from every decree passed in appeal by any subordinate Court if the High Court finds that the case includes a substantial question of law.

Taking this into context, the memorandum of appeal must clearly state the substantial question of law in this appeal. If the High Court deems it to be satisfactory, it may go on to formulate the pertinent questions, based on which the appeal would be heard. Also, the High Court may hear the appeal on any other substantial question of law not formulated by it if it feels that the case involves such question.

It may be noted that a second appeal is only meant for questions of law and hence cannot be made on the grounds of an erroneous finding of fact. On the same page, in the absence of any errors or defects in the procedure, the finding of the first appellate court will be considered as final, if the particular Court produces evidence to support its findings.

In another important note, second appeals cannot be made for a decree if the subject matter of the original suit is intended to recover a sum of Rs. 25,000.

Difference Between Second Appeal and Revision

Despite the similarities in outlook, the nature of a second appeal and revision vary, the likes of which has been elaborated below:

S. NoSecond AppealRevision
1Involves a substantial question of lawInvolves a jurisdictional error
2Filed to oppose a decree passed by the appellate courtFiled in cases where there was not any appeal in the first place
3The High Court is entitled to rectify a legal error of the lower courtThe High Court is not entitled to amend the decision of a lower court even in the case of a legal mistake
4The High Court may decide an issue of factAn issue of fact cannot be decided by the jurisdictional body
5The High Court is not vested with any discretionary powers, and hence it cannot refuse to grant relief on equitable groundsThe High Court may decline interference on the satisfaction that substantial justice has been done

Appeals from Orders

Appeals from orders could be placed with respect to the following pronouncements on the grounds of any defect or irregularity in law:

  • Any orders under Section 35A of the Code allowing special costs, and orders under section 91 or 92 refusing leave to institute a suit of the kind referred to in Section 91 or Section 92.
  • Any orders under Section 95, which involves the compensation for obtaining attachment or injunction on insufficient grounds.
  • Orders under the code which deals with the imposition of fine, direction of detention or arrest of any person except in execution of a decree.
  • Appealable orders as prescribed under Order 43, R.I. However, appeals cannot be filed based on any order enlisted in clause (a) and from any order passed in appeal under Section 100.

Appeals by Indigent Persons

Any person who is not capacitated to remit the fee required to file the memorandum may file an appeal as an indignant person. If the court declines the application of a person to appeal in this manner, it may necessitate the applicant to remit the required court fee within a prescribed time-frame.

Appeals to the Supreme Court

Appeals to India’s highest jurisdictional body can be made if the former considers the case to be appropriate for an appeal to the Supreme Court or when a special leave is granted by the Supreme Court itself. Appeals can be filed to the Supreme court by filing a petition with the court which enacted the decree, upon which the petition would be heard and disposed of within a period of sixty days. Petitions submitted for this purpose must state the grounds of appeal. Also, it must include a plea for the issuance of a certificate stating that the case involves a substantial question of law which needs to be decided by the Supreme Court.

The opposite party will be provided with an opportunity for raising any objections against the issue of such certificate. The petition would be disposed of if the applicant is denied the certificate. If accepted, the appellant would be required to deposit the required security and costs within a prescribed time-frame.

After the applicant performs the above obligations, the court from whose decision an appeal is preferred shall declare the appeal as admitted, an intimation of which will be addressed to the respondent. Further to this, the jurisdictional body forwards a precise copy of the record under seal and furnishes the copies of such papers in the suit.

Circumstances for Stay of Execution of Decree

Stay of execution of decree can be made under the following circumstances:

  • The party requesting for the stay is likely to incur substantial losses in the absence of such discretion.
  • The application for stay is made without any unreasonable delay.
  • The applicant has provided security for the due performance of the particular order or decree. If the applicant has failed in this commitment due to which the application gets rejected, the security can still be deposited within a time-frame of 30 days, upon which the application would be accepted.

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