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: [Clauses (a) to (f) omitted] (ff) an order under section 35A; [86] [(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 an 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; Provided that not 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.

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 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 [87]***** from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

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.

RIGHT TO APPEAL: A STATUTORY AND SUBSTANTIVE RIGHT

Right to appeal is statutory and substantive right. It is not merely appeal procedural right. Statutory right means must be conferred by statute unless it provides there wont be any right to appeal. While right to institute a suit is not conferred by law. The right is inherent. But right to appeal has to be conferred by appeal statute. Where statute provides for right to appeal, it may constitute appeal machinery where shall the appeal lie. While the same isnt true for right to sue. A civil suit has to be filed subject to condition of jurisdiction. An appeal is appeal substantive right. Right to appeal cant be taken retros0pectively because general rule of specific interpretation. Substantive law operates prospectively unless an express statute provides so.

When does right to appeal to appeal accrues to any person?

As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesnt arise when adverse decision is given, but on the day suit is instituted i.e. proceedings commenced, right to appeal get conferred. Thus, it can be said the Right to appeal is appeal substantive right vested in parties from the date suit instituted. The right to appeal can be waived by a party under a legal and valid agreement, and if a party has

accepted the benefits under the decree, he is stopped from challenging its legality. The right to appeal also stands destroyed if the court to which appeal lies is abolished altogether without any forum being substituted in its place. The Court hearing the appeal, has the power to implead a person as respondent who has not been so impleaded where it appears to the court that he may be a person and interested in the result of the appeal. 6

Appeal from final decree when no appeal from preliminary decrees

In cases where preliminary and final decree are required to be passed, and if a party aggrieved by preliminary decree does not prefer an appeal, he cannot be permitted to raise disputes about correctness of such decree in any appeal against final decree. An appeal is a constitution of proceedings. The appellate court can re-examine questions of fact and law and May even re-appreciate evidence. The powers of the first appellate court are co-extensive with those of the civil court of original jurisdiction. However, there may be certain self-imposed restraints in the exercise of such powers. However they are discretionary and Do not fetter jurisdiction of the courts. Unlike revision or review where limited grounds of interference are available, the appellate proceedings offer a much wider scope in deciding about correctness of the judgments of the courts below. First appeal may be filed on a question of fact or on a question of law or on a mixed question of fact and law may arise in a case.7 In determining the appellate forum, the value of the subject matter of the suit is material and not the claim in appeal.8

The judgment of the appellate court should state the points for determination, the decision thereon, the reasons fro the decision, and the relief to which the appellant is entitled. The appellate court should state its own reasons; thus it is not enough to say in the judgment, I concur with the decision of the Munsiff has given on each point. If this is done, the judgment will be set aside by the High court in second appeal. After the judgment is pronounced, the decree will be drawn up.

Who can 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.

Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316
In this case, the Trial Court judge prohibited the exhibition of film both in India and abroad. Session Judge permitted the exhibition of film in abroad. Subsequently, a party who moved in appeal did not have locus standi. It was reversed by division bench saying that its not proper on the part of judge as he entertained the suit on which party has no locus standi.9

SECTION 107 :
Citation
Ramappa Halappa Pujar v. State of Karnataka, Cr. App. No. 1344 of 2005 (Decided on April 27, 2007

Judgement
The Supreme Court has identified the powers of appellate courts while dealing with an appeal against an order of acquittal thus: 1. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; 2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law; 3. Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, et c. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforce, reaffirmed and strengthened by the trial court. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trail court.

These came to be reiterated in Ramappa Halappa Pujar v. State of Karnataka, Cr. App. No. 1344 of 2005 (Decided on April 27, 2007)