CPC, 1908: First Appeal

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It is said that everyone deserves a second chance. In the very same manner, the Indian Judicial system also believes in the same after a judgement has been pronounced. This is done in the form of ‘Appeals’. Through this article, the readers would be able to understand the basics of the Appeal and the other revolving factors when it comes to the aggrieved party who isn’t satisfied by the decision pronounced.

What is an ‘Appeal’?

Appeal is a statutory right of an aggrieved person against any kind of decision passed by an inferior court in its due course of exercise of justice. It could also be termed as a remedial concept determined as an individual’s right to seek justice against an unjust decree/order via referring it to a Superior Court. Ironically, the term ‘appeal’ hasn’t been defined anywhere under Code of Civil Procedure (CPC). However, The Black’s Law Dictionary, while construing the concept of ‘appeal’ in its most original and natural sense, explains it as “the complaint to a superior court for an injustice done or error committed by an inferior one, whose judgment or decision the Court above is called upon to correct or reverse.[1]

The concept of Appeal is however covered under Section- 96 to 99A; 107 to 108 and Order – 41 of the Code of Civil Procedure, 1908 with appeals from original decrees known as first appeals and shall be thrown more light in the later part of the article. 

What are the essentials of appeal?

Since we have now understood the concept of appeal in very basic terms. However, it is of prime importance that the readers understand about the requisites of an appeal. Now as we have already established that an appeal is any kind of remedial action that has been undertaken by a higher court, where it agrees to consider the decision made by the court lower to it on the basis of facts and law(s) and then modify, reverse or confirm the decisions taken by the lower court and issue a fresh set of guidelines if the order has been reversed/modified. Now in order for these three things to happen, the three essentials are as follows:

  1. A decree passed by a judicial/administrative authority;
  2. An aggrieved person, not necessarily a party to the original proceeding; and
  3. A reviewing body instituted for the purposes of entertaining such appeals.

Right to/of Appeal:

Now when we talk about the Right of/to appeal, it is not that anyone and everyone could go and file an appeal, prima facie. However, this right has been granted only to the party aggrieved by the decision of the court or them who have a direct and adverse effect on them with respect to the judgement pronounced.  

In addition, an actual case or controversy must exist at the time of review. Issues that have become moot while the appeal is pending and cases that have been settled during that time are not reviewable.[2] The statutory nature of an appeal implies that it has to be specifically conferred by a statute along with the operative appellate machinery as opposed to the right to institute a suit, which is an inherent right. It is substantive in the sense that it has to be taken prospectively unless provided otherwise by any statute. This right could be waived off via an agreement, and if a party accepts the benefits under a decree, it can be estopped from challenging its legality. However, an appeal accrues to the law as found on the date of the institution of the original suit.[3]

One Right to/of Appeal:

It isn’t much of a mammoth task to understand the sub heading when it comes after the explanation of Right to Appeal. It has been clearly laid down under Section 96 of the Code of Civil Procedure, 1908, 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.

(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 cognizable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.

Difference between Suit and Appeal:

When the common mass talks about appeal, they often confuse appeal with suit. They almost treat them as if they are synonymous terms. However, suit and appeal are two different concepts altogether. Let us differentiate between them on two clear points:

The first point of differentiation being the cause or the action which led the common man towards this direction. In its primary sense, a suit is created when there is a cause and there are certain disputed issues on the basis of the law prevailing in the certain place. However, when we talk about appeal, an appeal is made if any party from the suit is not satisfied with the judgement pronounced by the court, more or less being the review of the suit and it connects the suit to the appeal. Hence, a suit creates a cause but an appeal doesn’t.

The second point of differentiation being the place of filing. A suit is filed in the lowest court in the respective hierarchy for the purpose of trial. However an appeal is filed in an appellate Court for the purpose of reviewing the decision(s) of the  inferior Court.

Who may Appeal?

1. Any party to the suit, who is adversely affected by the decree or the transferee of interest of such party has been adversely affected by the decree provided his name was entered into record of suit.

2. An auction purchaser from an order in execution of a decree to set aside the same on the grounds of fraud.

3. Any person who is bound by the decree and decree would operate res judicata against him.[4]

Landmark Case Laws:

Some landmark case laws are:

  1. Sadhu Singh v. Dharam Dev, 1981.
  2. State of Bombay v. Supreme General Films and Exchange, 1960.
  3. Delhi Cloth and General Mills v. IT Commissioner, 1927.
  4. Kaleidoscope India Pvt. Ltd. v. Phoolan Devi, 1995.
  5. Veeraya v. Subbia Chaudhary, 1957.


To conclude with, it won’t be wrong to say that the readers got the slight idea of the Appeal system and how the system of appeal differs from the system of suits. Now when we come to an end of it, it is important for the people to understand the hierarchy of the filing of the appeal and then proceeding ahead, accordingly.

[1] First Appeals under Code of Civil Procedure 1908, Mariya Paliwala, 17th January 2020

[2] https://legal-dictionary.thefreedictionary.com/Right+to+Appeal#:~:text=An%20appeal%20may%20be%20granted,certiorari%20by%20the%20Supreme%20Court.

[3] First Appeals under Code of Civil Procedure 1908, Mariya Paliwala, 17th January 2020

[4] http://www.legalserviceindia.com/article/l63-Appeals.html

Author: Abeer Tiwari

Editor: Kanishka Vaish, Editor, LexLife India.

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