Introduction 

• Appeal is an application against the order of the subordinate court to the superior court to check the validity of the order passed by the court. 
• Appeal is not an inherent right of a person but a remedy available to the aggrieved party.  
• Part VII of the Code of Civil Procedure, 1908 (CPC) states the provisions for an appeal from the original decree. 

What is an Appeal? 

• Appeal is not specifically defined under CPC.  
• It is a judicial examination by the superior court of the order of the inferior court to test the correctness of the inferior court. 
• The person preferring an appeal is the appellant and the Court to which the appeal is preferred is the Appellate Court. 
• Anyone aggrieved by a decree or order of a court has the right to appeal to a higher court, provided such appeal is allowed against that decree or order. 
• In cases where an original jurisdiction court issues a decree, the first appeal typically lies with the appellate court authorized to hear appeals from decisions of that specific court. 
• Exceptions to this rule may exist if expressly provided by the Code of Civil Procedure, 1908 (CPC) or any other applicable law. 
• Sections 96, 100,104 and 109 of CPC confer the right of appeal. 

Who can appeal? 

• Legal representatives of the original parties or the original parties themselves. 
• Legal guardian of the minor appointed by the court. 
• Any aggrieved person after taking leave of the court. 

Right to Appeal? 

• Appeal is both statutory and substantive right. 
• Appeal is a statutory right only when it is expressly given under the statute that an appeal can be preferred. 
• Appeal is a substantive right when it gives the party a right to appeal the higher court against the order passed by the subordinate court. 

What is the First Appeal Under Code of Civil Procedure,1908? 

• Sections 96 to 99-A, 107 read with Order 41 of the CPC deal with first appeal. 
• The first appeal lies against a decree passed by a court exercising original jurisdiction. 
• The first appeal can be filed in a superior court which may or may not be a High Court. 
• A first appeal is maintainable on a question of fact, or on a question of law, or on a mixed question of fact and law.

Appeal from an Original Decree

About:

• Section 96 of the CPC states the provisions regarding the appeal from the original decree. 
• It states that 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 to the Court authorized to hear appeals from the decisions of such Court. 
  • An appeal may lie from an original decree passed ex parte. 
  • No appeal shall arise from a decree passed by the Court with the consent of the parties. 
  • No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees. 

Legal Provision: 

• Section 96 of CPC states as: 
  • Clause (1) states that 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.  
  • Clause (2) states that an appeal may lie from an original decree passed ex parte.  
  • Clause (3) states that no appeal shall lie from a decree passed by the Court with the consent of the parties. 
  • Clause (4) states that no appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand. rupees. 

Procedure for Filing an Appeal from Original Decree 

• The Procedure for filing an appeal from original decree is covered under Order XLI and rules as  
• Rule 1 states Form of appeal What to accompany memorandum as: 
  • Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the Judgment.  
  • Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.  
  • Contents of Memorandum. — 
    • 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 such grounds shall be numbered consecutively.  
  • Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. 
• Rule 2 states Grounds which may be taken in appeal: 
  • 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 of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule. 
  • Provided that the Court shall not rest 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 3 states Rejection or amendment of memorandum: 
  • Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it may be reje cted or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there.  
  • Where the Court rejects any memorandum, it shall record the reasons for such rejection.  
  • Where a memorandum of appeal is amended, the judge, or such officer as he appoints in this behalf, shall sign or initial the amendment. 
• Rule 3A states Application for condonation of delay: 
  • When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by 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.  
  • If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice hereof 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 rule 11 or rule 13, as the case may be.  
  • Where an application has been made under sub-rule (1), the Court shall not make an order fact the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under rule 11, decide to hear the appeal. 
• Rule 4 states One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all: 
  • Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. 

Cases of Appeal from Original decree 

• Wada Arun Asbestos (P) Ltd. v. Gujarat water Supply and Sewerage Board (2009):   
  • The Supreme Court in this case held that where a decree is appealed from, any error, defect or irregularity in any order affecting decision of case may be set forth as a ground of objection in memorandum of appeal. 
• Baldev Singh v. Surinder Mohan Sharma (2003): 
  • The Supreme court stated that there is no dispute that as against a decree, an appeal would be maintainable in terms of Section 96 of the Code of Civil Procedure. 
  • Such an appeal, however, would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. 
• State of Maharashtra v. Hindustan Construction Company Ltd. (2010): 
  •  The Supreme Court held that the appellant court has power to grant leave to amend the memorandum of appeal. 

Conclusion 

Appeal is a remedy given to the person aggrieved by the subordinate courts' decision. It is a substantive and statutory right available as per the laws of the statute. Appeal from an original decree lies to the court higher to the court which has passed the decree. Appeal is generally preferred by judgement debtors.