(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 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.]
The right to prefer an appeal from the judgment of the court of first instance is derived from the provisions of S. 96 of the Code. This is subject to the restriction contained in sub-s. (4) Added by the Amendment Act, 1976. An appeal shall, however, lie on a question of law even in cases referred to in sub-s. (4) Of S. 96 of the Code.
The remedy of appeal is a creation of statute and is not an inherent right of a person. If the Legislature in its wisdom thinks in a particular case that no appeal should be provided, it cannot be held that the legislation is bad.
By the Civil Procedure Code (Amendment) Act, 1976, the definition of the word “decree” has been amended and “the determination of any question under S. 47, C.P.C.” has been taken out of the definition of ‘decree’. In the circumstances, an order determining a question under S. 47, C.P.C. is no longer a decree. Since such an order is no longer a decree under the Code as amended, no appeal lies against the said order.
An appeal shall be accompanied by a memorandum of grounds together with judgment and decree as envisaged under Order XLI, Rule 1. The limitation begins to run from the date of the supply of the certified copies of the judgment and decree. The time taken by the court for their supply from the date of application till the date of supply should be excluded in computation of the period of limitation.
Even if application for certified copies of judgment and decree were separately filed, the combined period would be excluded. Therefore, the right to file an appeal arises only from the date when the decree was supplied. The appeal was filed as soon as decree was supplied and so appeal was not time-barred.
The State has offered no explanation of delay in filing appeal. The court condoned delay without recording satisfaction of reasonable or satisfactory explanation for inordinate delay. Such order cannot be sustained as condonation of delay was not proper and judicious.
Right of Appeal:
The right to file an appeal is a vested right and it accrues to a party on the date of institution of the suit. The right is governed by the law prevailing at the date of institution of the suit. So far as execution is concerned, the right to appeal accrues to a litigant on the date of filing of the execution application. An execution application is not a continuation of suit.
It is separate from and independent of a suit. In a matter of execution, the right of appeal is governed in accordance with law as it is on the date of institution of filing of the execution application.
(1) The right of appeal is not a mere matter of procedure, but is a substantive right;
(2) The institution of a suit carries with it the implication that all the rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit; and
(3) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when adverse judgment is pronounced. A vested right of appeal can be taken away by a subsequent enactment, if it is so provided expressly or by necessary intendment and not otherwise.
An appellate jurisdiction is the authority of a superior Court to review, reverse, correct or affirm the decision of an inferior court. An appeal is considered as continuation of the original suit rather than as the inception of a new action.
A litigant may have a right to institute a suit unless specifically barred, but there is no right of appeal unless conferred. For filing a suit, right is not required to be conferred by any statute whereas since the right of appeal is the right from the statutory provision by which it is created, such a right has got to be conferred.
It does not in here in a litigant. The right of appeal conferred or acquired has to be exercised only in the manner prescribed. The Legislature can enact a law taking away the vested right of appeal by making a provision to that effect or by expressing an intention to the contrary.
It is indeed axiomatic that a pre-existing right to appeal is a vested right which inheres in a party. Lis once originated gives birth to a vested right to take the lis to its ultimate end or terminus a quo is due course of the existing law. Principles emerging from the rulings can best be summed up as under:
(i) The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise,
(vi) When a lis commences, all rights get crystallised and no clog upon a likely appeal can be put, unless the law was made retrospective, expressly or by implication.
A finding of fact recorded by the High Court overlooking the incontrovertible evidence which points to the contrary and, therefore, utterly unsustainable cannot come in the way of the Supreme Court reaching a correct conclusion on facts and the examination of the evidence by the Supreme Court cannot be impeded by a mere submission that the Supreme Court does not interfere with finding of fact.
Suit was decreed on findings of lower courts that the temples under public trust were not public temples. These findings were given ignoring the fact that members of public worshipped and gave offerings at the temples and dedication of properties was made and additional grant made to temple showing public character of temple. Such findings were not proper.
Where the trial court arrived at a finding on appreciation of evidence that there was no evidence, that by virtue of joint possession the family was having an income which was sufficient to purchase the property in the name of a female member after meeting the family expenses and found that rather there was no evidence with regard to ‘sufficient nucleus’, the same could not be reversed by the appellate court without assigning as to how the finding so arrived by the trial court was wrong.
When the trial court based its finding on appreciation of the evidence of the witnesses and it did not merely draw an inference to judge the probability of the case, it was not open for the appellate court to take a different view other than the one taken by the trial Court, unless it found the view to be wholly unacceptable because of no evidence or appreciation of evidence which was against the established principle of law.
Although it is generally desirable that the appellate court should not appraise the oral evidence for itself, yet S. 96 enjoins upon an appellate court to hear the appeal and arrive at its own conclusion about the controversy in suit.
It is not bound by the finding recorded by the trial court in the same manner as a second appellate court is bound by the findings of fact recorded by the lower appellate court. It is, therefore, incorrect to say that the lower appellate court commits an error of law if it reassesses the oral evidence and comes to a conclusion different from that of the trial court.
The trial court is in a better position to appreciate the oral testimony of the witnesses than the appellate court as it has an advantage to watch the demeanour of the witnesses. However, it is open to the appellate court to disturb that appreciation of evidence in cases where the trial court has misread the evidence or has overlooked the glaring circumstances of the case.
The findings of the lower appellate court found to be based on conjectures and surmises than on proved facts are vitiated in law.
Trial court granted declaration that plaintiff and heirs of her sister were owners of suit property. The findings of trial court were based on material on record and were substantiated by weighty reasons. The appellate court set aside the findings without even considering oral evidence and only on the basis of mutation entry in favour of the defendant. Mutation entry in revenue records does not create or extinguish title and has no presumptive value on title. It is only for purpose of paying land revenue and appellate court not reverse decree on the basis of mutation entry.
The suit laid by a Muslim for the dissolution of his marriage was decreed by the Sub-Judge. The judgment followed by the decree were appealable under S. 96, C.P.C. The fact that by reason of the provisions of the Dissolution of Marriages Act the Sub-Judge who exercises the powers of a Kazi did not mean that the decision was final and unassailable. The dismissal of the appeal filed under S. 96 on such plea was set aside and the lower appellate court was directed to dispose of the appeal on merits.
Appeal against an ex parte decree:
In an, appeal against an ex parte decree the appellant can only be heard on the merits of the case. The appellate court cannot go into the question as to why the appellant had not appeared on the date of final hearing before the trial court.
In Syed Mazhar Hussain v. Rafiq Hussain, it was pointed that when a specific remedy with a particular limited period of limitation is provided, the party must avail himself of it and cannot make it a ground of appeal under the general provision granting him a right of appeal from an ex parte decree.
This was also the view taken in Ganesh Das Verma v. Harish Chandra. In Rajjan Lai v. Rukmani Devi & Other, following the decisions above mentioned, it was reiterated that in the appeal against the decree the appellate court cannot go into the question why the appellant had not appeared on the date of final hearing before the trial court. That is the scope of an application under Order IX, Rule 13, C.P.G. An appeal against a decree cannot take the place of miscellaneous application for setting aside an ex parte decree.
Appeal lies against decree and not against mere finding or judgment:
No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the C.P.C. provide for an appeal against decree and not against judgment.
Who could file an appeal?
Sections 96 and 100 of the C.P.C. make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively: none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal.
Suits for recovery of amount against guarantor and Insurance Company:
Where plaintiff-bank had sanctioned loan to first respondent (first defendant) for the purchase of boat. Such boat had sunk in sea due to fire accident. Bank had filed suit for recovery of amount. It was only first defendant who was entitled under law to make any claim for compensation as per terms of policy in case of any loss or damage to property.
First defendant being policy holder was alone entitled under terms of policy to raise any dispute or make any claim for compensation. Bank should never become party to policy. Finding of Courts below that policy was tripartite agreement between bank, borrower and Insurance Company was wholly erroneous and not based on sound reasoning.
Validity of appeal on death of one or the other appellant:
Where application for setting aside abatement, condonation of delay and bringing LRs on record was filed, whereas main appeal was on file before High Court. Held, that in those circumstances order by High Court rejecting application of LRs would result in grave injustice to the remaining appellants in denying of their right to have adjudication on their claims on merits.
The High Court ought to have condoned the delay as prayed for, keeping in view the pendency of the main appeals on its file, adopting a liberal and reasonable approach, which would have facilitated in effective adjudication of the rights of parties on either side, avoiding summary rejection of the appeals in entirety.
The judgment and decrees passed by the High Court in all these appeals were set aside and appeals were remitted to the High Court to be restored to their original files for being disposed of afresh on merits of the claim of both parties and in accordance with law.
The general rule is that the appellant cannot be allowed to raise in his memorandum of appeal a new ground; nor can he raise in his memorandum of appeal any objection which, if it had been taken in the trial court, might have been cured by appropriate amendment.
It is true that there are certain exceptions to this rule such as question of law, question of limitation, res judicata, etc., which can be substantiated on the facts already on the record. But a matter which though of law depends, upon questions of fact for its determination cannot be raised for the first time in appeal.
A plea abandoned in Labour Court cannot be taken in appeal. In a suit against sale of property for family debt the question was whether there was necessity for execution of sale deed by karta and its binding nature. High Court in appeal instead of deciding correctness of findings of trial court based on material on record declined to go into question.
The reason of doing so by High Court was that there was no pleading to enable the court to go into questions. The Supreme Court found order of High Court not proper and remanded the case.
A consent or compromise decree is not appealable, but on proper grounds it may be set aside by a separate suit.
No appeal will lie against an order recording a compromise when the parties settled their disputes amicably and there was no contest about the terms of the compromise. The proper remedy for an aggrieved party is to reopen the matter in the trial court by way of review or otherwise.
The rule contained in S. 96 (3) of the Civil Procedure Code is based on the principle that a person who gives his consent to a decree being passed against him, is later on estopped from challenging the same. Therefore, once a decree is passed with the consent of parties and the decree ex facie shows that both the parties had consented to it, no appeal can lie against such decree on the ground that the consent to such decree was not free and was obtained by fraud, misrepresentation, coercion, undue influence, etc.
In order to set aside a consent decree on the ground that the consent was obtained by coercion, the proper remedy is to file a separate suit and not an appeal or an application for review against that decree or an application under S. 152 of the Code.
If one of the parties to the litigation asserts before the appellate court that his consent to the decree was not free and it was obtained under coercion, the appellate court obviously cannot decide the dispute on the material before it unless it allows both the parties to adduce additional evidence to prove that fact.
Such a procedure is not covered by Order XLI, Rule 27 which is the only provision under which additional evidence is produced before the appellate court. Such evidence can be adduced properly in a separate suit for that purpose.
Relief claimed in alternative and right of appeal:
If the plaint read as a whole disclosed that the plaintiff will be satisfied with either of the reliefs claimed by him, he cannot be allowed to appeal if one of the reliefs is granted. One who gets what he wants cannot be said to be a “person aggrieved”.
On the other hand, if the plaint read as a whole gives an impression that of the alternative reliefs claimed one is the main relief and the other one is claimed only if it is found that the main relief cannot possibly be granted and the main relief is refused, it is open to the plaintiff to appeal and urge that on the facts and in law he is entitled to the main relief and should have been granted that.
In such circumstances claiming alternative relief is no bar to appeal by the plaintiff. In the Madras case the court observed: Alternative is an expression, which indicates a choice of the person and if that choice is exercised by him, then he cannot afterwards blow hot and cold and seek for reliefs as he desires by throwing overboard the benefits which he has secured on a full trial in the trial court. This would be encouraging the whims and fancies of a litigant.]
Aleemuddin v. Haji Bashir Ahmad:
Section 96, C.P.C., does not in term lay down as to who can file an appeal. It does not prescribe that it is only that person against whom a decree has been passed or against whom some relief in express terms has been granted is alone competent to come up in appeal.
In the absence of any such limitation a party to the suit who can satisfy the appellate court that he is aggrieved by the decree as it adversely affects his interest can file an appeal against it. In order to determine the question as to who is an aggrieved person it is not only the precise language in which the decree is couched but the substance of the decree and the entire circumstances of the case have to be considered.
A person aggrieved by a decree has a right of appeal although the decree in specific term may not have been passed against him or even where the suit has been dismissed as against him and in order to judge whether he is an aggrieved person not only the judgment but the pleadings have also been taken into consideration.
Distinction between an appeal and revision:
There is an essential distinction between an appeal and revision. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitation prescribed. But in the case of a revision, whatever powers the revisional authority may or may not have it has not power to review the evidence unless the statute expressly confers on it that power.
First Appeal—Deemed Condonation of delay:
The procedure adopted by the learned first appellate Court does not appear to be either erroneous or illegal as permitting the defendant/respondent to file the copy of the decree at the time of final argument amounts to condonation of delay in filing the appeal.