Appeal from Original Decree and Order: A Comprehensive Analysis

Appeal is a statutory right of every person aggrieved by any order or judgment of a court to approach a higher court for a reversal of the order. This article shall provide a comprehensive analysis of appeal from original decree and order under the Civil Procedure Code, 1908.

Introduction

The Code (hereinafter ‘CPC’) does not define the term ‘appeal’ nor is it defined in the General Clauses Act, 1897. According to Black’s law dictionary, appeal is a legal proceeding wherein a case is taken to a higher judiciary to review and/or revise the decree or judgment pronounced by a lower court.

The right to the first appeal is not a natural right. It means that a person does not have a right to appeal by virtue of the fact that a decision has been made by a court against him. Right to the first appeal is a statutory right which is granted in certain circumstances by the statute and unless it is specifically granted, it cannot be exercised.

For instance, under Section 50 of the Arbitration and Conciliation Act, an appeal is allowed to High Court only against two orders, i.e. order of refusal to refer the parties to arbitration and order of refusal to execute a foreign judgment in arbitration.

Further, the appeal should be made to the Commercial Division of the High Court under the Commercial Courts Act. Thus, a person cannot appeal form any aggrieved order and approach any appellate court to exercise its right to appeal. The CPC grants the right to first appeal under Section 96 of the code.

First Appeal under CPC

Section 96 entitles a person aggrieved by any order or decree of a subordinate court in a civil suit to approach the appellate authority for redressal of his / her grievances. Section 96 requires that the appeal before any appellate authority shall lie only if the impugned order is passed by the court in its ordinary original jurisdiction. It means that the provision applies only to situations of first appeal. The essential features of this provision are as follows:

1. Savings Clause: Section 96 begins with a savings clause which makes an exception to the application of this section to circumstances specifically provided under the Code or any other law. It means that the parties should resort to Section 96 of CPC to appeal only when the specific law is silent on this aspect and when the CPC does not provide any procedure of the first appeal in any other provision. So, for example, a law prohibits appeal from any order or decree unless the case involves a substantial question of law; in such case, the aggrieved person cannot move an appellate court under Section 96.
2. Blanket Provision for Appeal: Section 96 does not have any qualification as to which decree can be appealed and from which court. It is a blanket provision and allows an appeal from all decrees pronounced by any courts in the country. Therefore, if a law or enactment fails to provide any right to appeal and does not provide any remedy for the aggrieved party to challenge the first order or decree, this provision may be resorted.
3. Original Jurisdiction: The impugned order or the decree against which an appeal is sought, must be pronounced by the court in its original jurisdiction. It means it should be pronounced by a court of first instance. Section 96 does not cover a situation of the second appeal whereby an appellate court has pronounced a decree or order which has been challenged. Thus, Section 96 applies simply to civil courts of the junior and senior division.
4. Authorized Appellate Courts: The provision does not mention where an appeal would lie but only provides that the appeal should be from a court exercising original jurisdiction. It mentions that appal under this provision shall lie before the appropriate authority. To determine appropriate authority, the CPC and the special laws are necessary to be considered in this regard. Thus, if an appeal is sought against the order or decree of a civil court junior or senior division, it is a common understanding that it would lie before the High Court of the respective State. If an appeal is sought against the order of, for instance, the Commissioner of Income Tax, under the Income Tax Act, the appropriate authority would be the Income Tax Appellate Tribunal.
5. Ex-parte Decree: The provision also allows appeal from a decree passed ex-parte. When the defendant absents himself/herself from the hearing in the suit despite service of summons and sufficient opportunity being given by the court to appear, the court is compelled to proceed with the suit on the basis of the arguments and evidence of the plaintiff alone. Any decree passed in the absence of the defendant is called an ex-parte Section 96 (2) allows an appeal from this decree as well.
6. Decree passed by Consent: The CPC allows parties to settle a dispute outside the court with their mutual understanding and talks. This enables the court to save time and the parties can save the cost of litigation. The court in such cases pronounces such decree that satisfies both the parties. This is called a compromise decree. The one sine qua non of an out of court settlement is that the parties must enter into an agreement with voluntary consent and not under any influence or duress. Under Section 96 (3), if a compromise decree is pronounced by the court with the consent of the parties, the parties cannot appeal from such decree. This is to ensure that litigants do not misuse the law at their whim.
7. Decree of Small-causes Court: The British established for us several levels of courts from lower to higher in a hierarchy. The lowest in the hierarchy was the small-causes court which takes minor civil disputes where the damages claimed or value of the suit does not exceed Rs. 10,000. The small-causes court is still functioning in several parts of the country, especially in rural areas. Now, Section 96 (4) provides that to appeal an order or decree passed by a small-causes court, the question in the appeal must be a question of law and the amount or value of subject matter of the suit should not exceed Rs. 10, 000.

No Appeal from Preliminary Decree

The CPC entails two types of decree with respect to their finality, i.e. preliminary decree and final decree. A preliminary decree is one which is pronounced while the trial is in progress and the all the issues raised in the case are not settled by the court. A preliminary decree determines rights of the parties with respect to any particular matter raised within or during the proceedings of the court in the suit.

Section 96 does not only allow an appeal from a final decree but also connotes appeal from a preliminary decree. Thus, if a party to a suit is not satisfied with the preliminary decree passed by the court, it has the right to challenge the preliminary decree before the appropriate higher court.

If the preliminary decree is reversed by the appellate court, it becomes bad in law and ineffective. However, if the appellate court concedes to the ratio of the subordinate court and decide that the decree needs to be upheld, the decree becomes final and effective.

Section 97 provides a different situation to be dealt with. According to this provision, if an aggrieved party has failed to challenge a preliminary decree, it is presumed that the decree is good in law and the decree-holder can be execute the decree against such judgment debtor. If the judgment debtor has decided not to appeal a preliminary decree, s/he cannot claim that the decree was wrong or bad in law at the time when the final decree is pronounced.

Further, if the judgment debtor appeals against the final decree of the court, he cannot challenge the correctness or accuracy of the preliminary decree passed by the court which he failed to appeal at the first instance. In any further appeal related to the case, the preliminary decree shall remain effective.

Appeals from Orders

It is a general rule created under the Code that only decrees are appealable and orders are non-appealable. However, there can be circumstances where an order can largely affect the rights of the parties to a suit and therefore, Section 104 was enacted to provide a list of orders from which an appeal lies. Under Section 104, the following orders are appealable:

1. Section 35 A: When a party submits its claims or defence before the court, the other party has a right to object to such claims or defences o grounds that the claims or defences are vexatious and false. The objecting party is then required to submit any proof of his objections. If, in the end, the court is satisfied that the claim or defence was vexatious, it may pass an order disallowing such claim or defence. This order is appealable under Section 104.
2. Section 91 and 92: Section 91 provides that if there an act causing public nuisance or any wrongful act causing violation of public’s rights, the advocate-general of the State or other two or more affected persons may institute a suit for injunction against such wrong actions. The order of the court allowing or disallowing the injunction is appealable under Section 104.
3. Section 95: Under this provision, the court is empowered to pass an order awarding compensation to the defendant if there is any loss caused to the defendant because of any civil arrest, detention or a temporary injunction passed incorrectly and when the plaintiff fails to substantiate its claims. The order of compensation is passed against the plaintiff and is appealable at the option of the plaintiff under Section 104.
4. Order of Arrest or Fine: Any order of a civil arrest or fine passed by any civil court is always appealable under Section 104 before any appropriate appellate authority.

Any order besides the aforementioned orders cannot be appealed under the Code of Civil Procedure. Further, Section 104 (2) also provides that once an order is appealed before an appeals court, any order passed by the appeals court shall not be subject to challenge in any other court. It means that an order can be appealed once only. These are relevant procedure and provisions with respect to the first appeal.

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References

1. Dinshaw F. Mulla, The Key to Indian Practice: A Summary of the Code of Civil Procedure, 1908, (11^th 2015).
2. K. Takwani, Civil Procedure, (8^th ed. 2018).

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