Civil Appeal

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Civil Appeal

Appeal

The term appeal is not defined by the Code of Civil Procedure. It can be defined as a complaint made to a superior court against the decision of a subordinate court with the object of getting such order set aside or reversed. The cause is moved to a superior forum for the purposes of testing the soundness of the decision of the lower court (Civil Appeal).

Right of appeal

            Any person having a grievance or desiring to assert a right of civil nature has a right to institute a civil suit for such purpose, unless the suit is either expressly or impliedly barred. However, appeal is not an inherent right exercisable by a party consequent on the passage of decree. S. 96 C.P.C provides that appeal shall lie from every decree passed by any court exercising the original jurisdiction to the court authorized to hear appeal from the decision of such court.

Creation of statute

The right of Civil Appeal  is a substantive right, which is not inherent in a party to a suit, but must be specifically conferred by law. It cannot be conferred merely by rules. It is a creation of statute and must be confined within the limitations imposed by the relevant law. Right of appeal cannot be conferred by the consent of parties nor can a defect in appellate jurisdiction be cured by consent or waiver.

Substantive right

The right of appeal being a substantive right can be conferred or taken away retrospectively, only be express words or necessary implications. Where the right of appeal was not available, when the suit was instituted, but is conferred subsequently, then subject to the above proposition of law the decree will be non-appealable. Similarly, where the right of appeal was available at the time of institution of the suit, it will ordinarily be not lost by subsequent change in law.

Grounds of appeal

A first appeal lies on matter of fact or law and there is no restriction on the grounds that may be taken up. The first appellate court is a final court on a question of fact. A party in appeal cannot depart from the case set up by it before the trial court, nor it can raise a new points which would require fresh investigation of facts or urge grounds abandoned before the lower court.

Who may appeal

An appeal is a continuation of a suit, therefore, only such persons who were parties to the suit and who are adversely affected by the decree may appeal. A person who was not party to the suit cannot appeal against the decree, unless such person is adversely affected, and is permitted by the appellate court to file an appeal or may apply to be imp leaded as respondent. A person is said to be adversely affected if the determination will be res-judicata against such person.

Co-plaintiffs and co-defendants

An appeal can be filed against a co-plaintiff a co-defendant, provided the appellant is adversely affected by the decree, and the subject matter of the appeal was matter in controversy between such appellant and respondent.

Ex-Parte decree

Ex-parte decrees are appealable u/sub section 2. The following remedies are available against ex-parte decree.

  • Application u/o 9.R.13.
  • Review application u/s. 114.
  • Application u/s 12(2)
  • An appeal u/s. 96(2).

All these remedies are concurrent and may be continued so long a decision is not given in any of them. The decree of appellate court supersede that of lower court, and where a new decree is passed in appeal, proceedings u/order 9 or S. 114 be rendered in fructuous, as the original decree against which these proceedings were directed will have been superseded in appeal. If pending determination of an Civil Appeal , the decree is set aside, the appeal will abate. However, neither the rejection of application u/o 9 R.13 nor the failure to apply it will preclude the appellate court from entertaining appeal

Consent decree

S. 96 (3) provides that no appeal shall lie from a decree passed by the court with the consent of the parties. By consenting to the settlement of the controversy, the parties give up the right against such agreement. The consent decree operates as an estoppel. Where the suit has been partially compromised, the decree is to that extent not subject to appeal. A consent decree can be questioned either by means of review application u/s 114 or on any ground that would invalidate an agreement, as for instance, fraud and in appropriate cases u/s 115.

Amended decree

Where a decree is amended, an appeal with lie against it and not against the original decree. Also where court considers the case afresh in review proceedings, and passes a fresh judgment and decree, it will be open to appeal.

Discretionary powers

Ordinarily an appellate court will not interfere with the exercise of discretionary powers by the lower court, unless discretion has been exercised contrary to the considerations governing the exercise of such discretion.

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