PART VII

APPEALS

APPEALS FROM ORIGINAL DECREES

96. Appeal 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 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.

¹[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ²[ten thousand rupees].]

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Substituted by Act No. 46 of 1999, sec 6 for "three thousand rupees" (w.e.f. 1-7-2002).

97. Appeal from final decree when no appeal from preliminary decree.— Where any party aggrieved by a preliminary decree after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal, which may be preferred from the final decree.

98. Decision where appeal beard by two or more Judges.—(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:

Provided that where the Bench hearing the appeal is ¹[composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it.

²[(3) Nothing in this Section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.]

1. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Inserted by Act No. 18 of 1928.

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.— No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder ¹[or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:

¹[Provided that nothing in this Section shall apply to non-joinder of a necessary party.]

1. Inserted by Act No. 104 of 1976, w.e.f 1st February, 1977.

¹[99A. No order under Section 47 to be reversed or modified unless decision of the case is prejudicially affected.— Without prejudice to the generality of the provisions of Section 99, no order under Section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.]

1. Inserted by Act No. 104 of 1976, w.e.f. 1^st February, 1977.

APPEALS FRONT APPELLATE DECREES

¹[100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this Section from an appellate decree passed ex parte.

(3) In an appeal under this Section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]

COMMENTS

In second appeal- finding of fact- interference is permissible only in exceptional cases. (Ishawar Dass Jain v. Sohan Lal, AIR 2000 SC 426(429).

Substantial question of law. - Unless the substantial questions of law have been framed in second appeal, the judgment of the first appellate Court cannot be se t aside. (Ishawar Dass Jain v. Sohan Lal, AIR 2000 SC 426(429).

Substantial question of law- Substantial question of law arises where the first appellate Court has considered the inadmissible evidence or relevant/ material evidence has not been considered. - In either case the finding of the first appellate Court can be disturbed. (Ishawar Dass Jain v. Sohan Lal, AIR 2000 SC 426(429). SECOND APPEAL WITHOUT SHOWING THE METHOD OF ASSESSMENT OF DAMAGES, THE DAMAGES SUIT CAN BE DECREED?. NO.—2010[5] ALT 364. CAN THE COURT INTERFER WITH THE FACTS FINDING OF LOWER COURT IN SECOND APPEAL?, YES –IF THE FINDINGS OF LOWER COURT ARE PERVERSE.—2010[5] ALT S.C. 4.

1. Substituted by Act No. 104 of 1976, for the former Section 100, w.e.f. 1st February, 1977.

²[100A. No further appeal in certain cases.— Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further, appeal shall lie from the judgment and decree of such single Judge.]

1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Sec 100A was substituted by Act No.46 of 1999, Sec 10 and further has been substituted by Act 22 of 2002, sec.4 (w.e.f. 1-7-2002).

101. Second appeal on no other grounds.— No second appeal shall lie except on the ground mentioned in Section 100.

¹[102. No Second appeal in certain suits.— No second appeal shall lie from any decree. When the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.]

1. Sec 102 was substituted by Act No. 46 of 1999, Sec 11 and now further substituted by Act 22 of 2002, Sec. 5 (w.e.f. 1-7-2002).

¹[103. Power of High Court to determine issues of fact.— In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

(b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.]

1. Substituted by Act No. 104 of 1976, for former Section 103, w.e.f. 1st February, 1977.

APPEALS FROM ORDERS

104. Orders from which appeal lies.—(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-

¹[***]

²[(ff) An order under Section 35A;]

³[(ffa) An order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;]

(g) An order under Section 95;

(h) An order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) Any order made under rules from which an appeal is expressly allowed by rules:

²[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]

(2) No appeal shall lie from any order passed in appeal under this Section.

1. Clauses (a) to (f) omitted by Act No. 10 of 1940.

2. Inserted by Act No. 9 of 1922.

3. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

105. Other orders.—(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand ¹[***] from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

1. Omitted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

106. What Courts to hear appeals.— Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

GENERAL PROVISIONS RELATING TO APPEALS

107. Powers of Appellate Court.—(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-

(a) To determine a case finally;

(b) To remand a case;

(c) To frame issues and refer them for trial;

(d) To take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

108. Procedure in appeals from appellate decrees and orders.— The provisions of this Part relating to appeals from original decree shall, so far as may be, apply to appeals-

(a) From appellate decrees, and

(b) From orders made under this Code or under any special or local law in which a different procedure is not provided.

APPEALS TO THE SUPREME COURT

¹[109. When appeals lie to the Supreme Court.— Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies-

(i) That the case involves a substantial question of law of general importance; and

(ii) That in the opinion of the High Court the said question needs to be decided by the Supreme Court.

1. Substituted by Act No. 49 of 1973, for earlier Section 109.

110. Value of subject-matters.-[Omitted by the Code of Civil Procedure (Amendment) Act, 1973 (45 of 1973).]

111. Bar of certain appeals.-[Repealed by the A.O. 1950].

111A. Appeals to Federal Court: Repealed by the Federal Court Act, 1941 (21 of 1941), Section 2.]

112. Savings.—¹[(1) Nothing contained in this Code shall be deemed-

(a) To affect the powers of the Supreme Court under article 136 or any other provision of the Constitution, or

(b) To interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.]

(2) Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction or to appeals from orders and decrees of Prize Courts.

1. Substituted by the A.O. 1950, for the former sub-section (1).

PART VIII

REFERENCE, REVIEW AND REVISION

113. Reference to High Court.— Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:

¹[Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.

Explanation.—In this Section, “Regulation” means any Regulation of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897, (10 of 1897) or in the General Clauses Act of a State.]

1. Inserted by Act No. 24 of 1951.

114. Review.— Subject as aforesaid, any person considering himself aggrieved-

(a) By a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.

(b) By a decree or order from which no appeal is allowed by this Court, or

(c) By a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

115. Revision.—¹[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears -

(a) To have exercised a jurisdiction not vested in it by law, or

(b) To have failed to exercise a jurisdiction so vested, or

(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity,

The High Court may make such order in the case as it thinks fit:

²[Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding,]

³[(2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

⁴[(3) A revision shall not oprate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the high court.]

Explanation.—In this Section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]

1. Section 115 re-numbered as sub-section (1) thereof by Act No. 104 of 1976, w.e.f. 1st February, 1977.

2. Substituted by Act No. 46 of 1999, Sec 12 (w.e.f. 1-7-2002).

3. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

4. Inserted by Act No.46 of 1999, sec 12 (w.e.f. 1-7-2002).