09-08-2012, 03:55 PM
Comparison between Appeals
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Introduction
Any person who feels aggrieved by any decree or order passed by the court may prefer appeals in a superior court if an appeal is provided against that decree or order or may make an application for review or revision. In certain cases, a subordinate court may make a reference to a High Court. The provisions relating to appeals, reference, and review has been mention under Civil Procedure Code, 1908. Sections 96 to112 and Orders 41 to 45 talks about Appeals. First Appeals: Sections 96 to 99-A, 107 and Order 41, Second Appeals: Section 100-103,107,108 and Order 42, Appeals from Orders: 104-108 and Order 43, Appeals by Indigent persons: Order 44, Appeals to the Supreme Court: Sections 109,112 and Order 45. Section 113and Order 46 0f the Code talk about “reference” and Section 114 and Order 47 talks about “review”.
Meaning of Appeals, Reference and Review.
Appeals
The expression ‘appeal’ has not been defined in the code. According to dictionary meaning, ‘appeal’ is the “judicial examination of the decision by a higher court of the decision of an inferior court.” In simple it can be defined as it is a proceeding by which the defeated party approaches a higher authority or court to have the decision of a lower authority or court reversed. In Nagendra Nath Dey vs. Suresh Chandra Dey , speaking for the Judicial Committee of Privy Council, Sir Dinsha Mulla stated that:
“There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate court, asking to set aside or reverse a decision of a subordinate court, is an appeal within the ordinary acceptation of the term”. An appeal is thus a removal of a cause from an inferior court to superior court for the purpose of testing the soundness of the decision of the inferior court. It is a remedy provided by law for getting the decree of the lower court set aside. In other words, it is complaint made to the higher court that the decree passed by the lower court is unsound and wrong. It is a right of entering a superior court and invoking its aid and interposition to redress an error of the court below .
A right of appeal is not a natural or inherent right. It is well settled that an appeal is a creature of a statute and there is no right of an appeal unless it is given clearly and in express terms by a statute. Whereas sometimes an appeal is a matter of right, sometime it depends upon discretion of the court to which appeal lies. In the letter category of cases, the right is to apply to the court to grant leave to filed an appeal; for instance, an appeal to the Supreme Court under Article 136 of the Constitution of India. If a particular Act does provide a right of appeal, it cannot be declared ultra vires only on that ground. The right of appeal is a substantive right and not merely a matter of procedure.
Appeals from Original Decrees
Section 96-122 and Orders 41-45 talks about the appeals from Original decree. It can also be called as first appeal. Section 96 of the code said that “appeals from original decree:- (1). 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 jurisdiction to the court authorised to hear appeals from the decision of such court.
(2). An appeal may lie from an original decree passed exparte.
(3). No appeal shall lie from a decree passed by the court with the consent of parties.
(4). No appeals 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 ten thousand.”
A first appeals lies against the decree passed by the court exercising original jurisdiction. A 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. The right to prefer an appeal from the judgement of the Court of first instance is in the provision of Section 96 of the Code.
The remedy of appeal is a creation of a statute and is not an inherent of a person. If the Legislature in it wisdom thinks in a particular case that no appeal should be provide, it cannot be held that the legislation is bad. An appeal from an original decree is called “first appeal”. It is only in a limited number of cases that appeals are allowed from appellate decrees, and that appeals are allowed to the Supreme Court. As regards appeals from original decrees, it is provided in the code or by any other law. Thus Section 96 0f the Code make it clear that no appeal lies from a decrees passed by the court with the consent of parties. However an appeal may lie from an original decree which is passed exparte that is without hearing one of the parties.
An appeal shall be accompanied by a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf on the grounds together with judgment and decree as envisaged under Order 41 Rule 1. The limitation begins to run from the date of the supply of the certified copies of the judgment and the decree. 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 timed-bared.
The right to file an appeal is a vested right and it accrues to a party on the institution of the suit. The right is governed by the law prevailing at the date of institution of the suit. So for as execution is concerned, the right to appeal accrues to a litigant on the date of the filing of the execution application. An execution application is not a continuation of suit. It is separated from and independent of suit. In a matter of execution, the right of appeal is governed in accordance with as it is on the date of institution of filing of the execution application.
In an appeal against an exparte decree the appellant 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 vs. Rafiq Hussein , 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 exparte decree.