A REPORT ON

Appeals from Original decree

SUBMITTED FOR THE PURPOSE OF INTERNAL ASSESSMENT

Code of Civil Procedure

SECOND SEMESTER

LL.B. (HONS.) IN INTELLECTUAL PROPERTY LAW

RGSOIPL – IIT KHARAGPUR

SUBMITTED BY:
Ankur Bishnoi

Roll No.: 17IP63005

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Contents
List of Abbreviations……………………………………………………………………….…………..3

Decree ..................................................................................................................................................... 4
Section 96…...…………………………………………………………………………………………..4

Who may Appeal………………………………………………………………………….…………….4

Appeal against Ex Parte Decree………………………………………………………………………...5

No appeal against consent decree ………………………………………………………………………6

Appeal maintainable…………………….…………………………………………...………………….8

Adjudication against which regular first appeal does not lie ………………………………….………..8

Appeal against Preliminary and Final Decree……………………………………………………….….8

Appeal not to be allowed on trivial defects in decree ............................................................................. 9

Powers of First Appellate Court……………………………………………………………………….10

References ............................................................................................................................................. 11

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 List of Abbreviations
S. No. ABBREVIATION EXPANSION

1. v. Versus

2. AIR All India Report

3. SC Supreme Court

4. HC High Court

5. Ors. Others

6. Anr. Another

7. Ltd. Limited
8. MANU Manupatra
9. Hon‟ble Honourable

10. SCC Supreme Court Cases

11. Jhar. Jharkhand
12. Rs. Rupees
13. C.P.C Code of Civil Procedure
14. etc. et cetera (meaning "and similar other things" )
15. S. Section

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Decree
Setion.2 (2) of Code of Civil Procedure, 1908 defines “Decree" means the formal
expression of an adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or final. It shall be deemed to
include the rejection of a plaint and the determination of any question within section 144,
but shall not include- (a) any adjudication from which an appeal lies as an appeal from an
order, or (b) any order of dismissal for default.

Section 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 to the Court authorized to
hear appeals from the decisions of such Court.

(2) An appeal may lie form 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 Court of Small Causes, when the amount or value of the subject-
matter of the original suit does not exceed [ten thousand rupees].

Who may Appeal

Before an appeal can be filed under this section, two conditions must be satisfied: (i) The
subject matter of the appeal must be a “decree”, that is, a conclusive determination of
“rights of the parties with regard to all or any of the matters in controversy in the suit.”
(ii) The party appealing must have been adversely affected by such determination. The
ordinary rule is that only a party to suit adversely affected by decree or any of his
representatives in interest may file an appeal.

But a person who is not a party to a decree or order may, with the leave of the court,
prefer an appeal or is prejudicially affected by it. Generally speaking, a decision cannot
be said to adversely affect a person unless it will operate as res judicata against him in
any future suit.

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Appeal against Ex Parte Decree
An „Ex parte decree‟ is a decree passed against a defendant in absentia. Despite service of
summons, where on the date of hearing only plaintiff does and a defendant does not
appear the Court may hear the suit ex parte and pass a decree against the defendant. The
legal validity, enforceability and operation of such decree is similar to any bi-parte
decree. One of the remedies available to the defendant, against whom an ex parte decree
is passed, is to file an appeal against such a decree. As per Section 96 (2) a person
against whom an ex parte decree is passed can appeal and has not exhausted his remedy
under Rule 13 Order IX.

The Supreme Court in Vijay Kumar v. Kamlabai held that sufficient reasons for non-
appearance in the proceedings and subsequent application for setting aside the ex parte
decree for the purpose of causing delay in the proceedings should not be encouraged.

Ex parte decree cannot be set aside if the party against whom the decree is passed if he
had knowledge of the date of hearing. Even if irregularity in the service of summons is
established if the defendant had the notice of the date of hearing the Court cannot set
aside the ex parte decree. In R.S. Bhatnagar v. Bakt Sajjan the Court noticed the
difference between irregularity and illegality in service of summon. Illegality in service
of summons is when the process is in contravention of some statutory provision which
renders it void and whereas irregularity is a defect in following the procedure laid down
thereof and may not render it void.

In Prateek Sharma v. Vimal Chand Agarwal the Court held that notwithstanding any
irregularity in service of summons deliberate inaction of the applicant despite of
knowledge of the proceedings cannot be justified in his claim for setting aside the ex
parte decree. The Supreme Court in Sushil Kumar Sabharwal v. Gurpeet Singh held that
non-service of summons is a ground for setting aside an ex parte decree. The service of
summons to the party cannot be a mere formality but should, in fact, be reality. In Naresh
Chandra Agarwal v. Bank of Baroda the appellant application for setting aside an ex
parte decree was rejected by Trial Court and subsequently by the High Court as it
considered the validity of notice of substitution sent to the permanent residential address
rather than his actual present residence. The plaintiff admitted in his affidavit that the
appellant was working in some other place at the relevant time. In appeal the Supreme
Court has set aside the decree as it considered that summon was not served in reality.

In Rabindra Singh v. Financial Commercial Cooperation, an ex parte decree was passed

against the defendant who was residing in foreign country for the past 25 years and has
never received any notice though the plaintiff had knowledge of his correct address.
Summons was affected to the village address. The Court held that ex parte decree passed
in the event of non-appearance of the defendant without providing an opportunity of
hearing to him caused prejudice to defendant and it is against the principles of natural
justice.

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No appeal against consent decree

This principle is based on the broad priciple of estoppel. It presupposes that the parties to
an action can, expressly or impliedly, waive or forgo their right of appeal by any lawful
agreement or compromise or even by conduct. This provision, however, does not apply
where the factum of compromise is in dispute or the compromise decree is challenged on
the ground that such compromise had not been arrived at lawfully.

Smt. Hina singh v. Satya Kumar Singh, AIR 2007 Jhar 34:

The respondent Satya Kumar Singh married with the appellant, Smt. Hina Singh on 27-4
2001 in accordance with the Hindu rites and customs. In 2003 the respondent-husband
filed an application under Section 9 of the Hindu Marriage Act for a decree of restitution
of conjugal right alleging, inter alia, that after marriage the appellant lived with him for
about three weeks and, thereafter, she went to Kolkata. It was alleged by the respondent
that the appellant had gone to Kolkata but she did not come back with him. On 26-10-
2001 the appellant came to her matrimonial home and started threatening and torturing
the entire family members of the respondent. On 10-12-2001, the father of the respondent
along with his two nephews came to the residence of the respondent and took her to
Kolkata. Thereafter, the respondent alleged to have made several attempts to take her
back to her matrimonial home, but all efforts went in vain. Hence, the respondent filed
the aforementioned suit for a decree of restitution of conjugal right.

On receipt of summon, the appellant appeared and filed application for time for filing
written statement. On last date being 11-2-2005, the Principal Judge allowed time to the
appellant for filing written statement by 18-3-2005. On 18-03-2005, the Principal Judge
decreed the suit by passing order of dissolution of marriage on mutual consent. The said
judgment and decree is the subject of the matter of this appeal.

The High Court elaborately discussed the meaning of consent decree within the meaning
of Order 23 Rule 3 of the Code and held that if a suit or proceeding is compromised and a
consent decree is passed in terms of Order 23 Rule 3 CPC, then no appeal is maintainable
against a consent decree having regard to the specific bar contained in Section 96(3)
CPC. In High Court view the respondent-husband for the reason that in a matrimonial
suit particularly for passing a decree of dissolution of marriage by mutual consent as
contemplated under Section 13B of the Hindu Marriage Act, the provision of Order 23
Rule 3 of the Code will not apply. The Court, before passing a decree for dissolution of
marriage by mutual consent, has to comply the mandatory requirements of Section 89 and
Order 23A of the CPC, Section 23 of the Hindu Marriage Act and Section 9 of the Family
Courts Act. Therefore, Jharkhand High Court held that impugned order at no stretch of
imagination can be treated as a consent decree for dissolution of marriage by mutual
consent and, therefore, the bar provided under Section 96(3) of the Code shall not apply.

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P.T. Thomas v. Thomas Job, AIR 2005 SC 3575:

The Appellant and the Respondent are brothers, Respondent being the elder. They have
another brother who is well employed in the United States. The three brothers partitioned
the property left behind by their father by metes and bounds. The Respondent was
running a theatre. A part of the theatre fell in the property allotted to the appellant. Since
Respondent did not vacate and give vacant possession to the Appellant, he was
constrained to file a suit for a mandatory injunction for removal of the building and to
surrender vacant possession. The Appellant also prayed for a decree for recovery of
possession.

The appellant's suit was decreed as prayed for. When the matter was pending in appeal at
the instance of the Respondent in the District Court, the dispute was referred to the Lok
Adalat constituted under the Legal Services Authorities Act for resolution of the dispute.
The matter was settled in the Lok Adalat. The award of the Lok Adalat dated 5.10.1999
provided for sale to the Appellant or his nominee of the property scheduled to the award
after a period of one year and within a period of two years on payment of a sum of Rs.
9.5 lakhs to the Respondent and on default of the Respondent to execute the document,
the appellant could get it executed through court. On the other hand, in case of default on
the part of the appellant, he had to give up his aforesaid right and instead be entitled to be
paid to Rs. 3.5 lakhs by the Respondent.

The Respondent did not execute the sale deed within the time fixed despite repeated
requests by the Appellant. The Appellant, therefore, sent a lawyer's notice on 3.10.2001
to the Respondent calling upon him to execute the sale deed. Respondent did not receive
the notice and the notice was returned unserved to the Appellant. The Appellant
thereafter sent a telegram on 26.10.2001 requiring the Respondent to execute the sale
deed and also sent him a copy of his earlier notice dated 3.10.2001 by certificate of
posting. There was no response from the Respondent. The Appellant was, therefore,
constrained to move for execution of the award by filing petition in the Trial Court,
which was opposed on various grounds. The Subordinate Judge overruled all the
objections and the appellant was directed to deposit a sum of Rs. 9.5 lakhs within three
days i.e., on or before 8.4.2003. The Appellant, however, deposited the amount one day
earlier on 7.4.2003 the next working day. But, the High Court allowed the Revision filed
by the Respondent and dismissed the execution petition on grounds, which according to
the Appellant, are irrelevant and incorrect. Hence, the Appellant preferred the special
leave petition to Supreme Court. Supreme Court observed The Lok Adalat will passes the
award with the consent of the parties, therefore there is no need either to reconsider or
review the matter again and again, as the award passed by the Lok Adalat shall be final.
Even as under Section 96 of C.P.C. that "no appeal shall lie from a decree passed by the
Court with the consent of the parties". The award of the Lok Adalat is an order by the
Lok Adalat under the consent of the parties, and it shall be deemed to be a decree of the
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 Civil Court, therefore an appeal shall not lie from the award of the Lok Adalat as under
Section 96 C.P.C.

Appeal maintainable
• Against preliminary decree

• Against final decree

• Rejection of plaint under Order 7 Rule 11 C.P.C.

• Original decree passed ex-parte.

• Against certain orders passed in a suit before its final decision also appeal is provided
under Section 104 read with Order 43, Rule 1 C.P.C.

Adjudication against which regular first appeal does not lie

• Dismissal of suit in default

• Determination of any question within Section 47 ( Questions to be determined by the

court executing decree)

• Decree passed by the Court with the consent of the parties.

• Valuation of the subject matter of the suit does not exceed Rs. 10,000/ - except on a
question of law.

• Right of appeal is vested right and accrues on the date on which first proceedings (suit,
application, objection etc.) are initiated. Appeal, statutory right, can be made conditional
by Statute

In Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126 it has been held that suit is inherent,
general or common law right and it need not be provided by any statute, however, appeal
is a statutory right and is maintainable only when some statute provides the remedy of
appeal.

Appeal against Preliminary and Final Decrees

In certain suits, two decrees are passed, one is preliminary and the other is final, like
partition suit, in which, in the preliminary decree shares of the parties are determined and
in final decree actual partition is done by metes and bounds. Appeal is provided against
both the decrees i.e. preliminary as well as final.

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 However, if against the preliminary decree appeal is not filed then its correctness cannot
be questioned in an appeal which is preferred against final decree as provided under
Section 97 C.P.C.

Appeal not to be allowed on trivial defects in decree

Section 96(3) has been inserted by the Amendment Act of 1976. It bars appeals except
on points of law in certain cases. Prior to 1976, Section 96 allowed a first appeal against
every decree. Now, sub-section (4) bars appeals on facts from decrees passed in petty
suits where the amount or value of the subject matter of the original suit does not exceed
ten thousand rupees, if the suits in which such decree are passed are of a nature
cognizable by courts of small causes. The underlying object in enacting the said provision
is to reduce appeals in petty cases.

Section 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 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: Provided that nothing in
this section shall apply to non- joinder of a necessary party.

Kuldip Kumar Dubey v. Ramesh Chandra Goyal AIR 2015 SC 1135

Raj Kumar was owner of the suit property who died on 4th February, 1994. Shiv Kumar
Dubey, brother of Raj Kumar filed the suit for eviction of the Respondent-tenant in his
capacity as heir of Raj Kumar on the ground of non payment of rent on 24th April, 1995.
During pendency of the suit, Shiv Kumar Dubey died on 11th August, 1996 and the
Appellants Kuldeep Kumar and Pradeep Kumar sons of Shiv Kumar Dubey and Smt.
Dayawati widow of Shiv Kumar Dubey were substituted as Plaintiffs being his heirs. The
suit was contested by the tenant (who has also died during pendency of the proceedings
in this Court and who has been substituted by his legal heirs) by filing a written statement
admitting that Raj Kumar was the owner and Shiv Kumar was his brother and heir apart
from other heirs. It was stated that rent was deposited in Court. Sister of Raj Kumar, an
heir of Raj Kumar, was also a necessary party. It may be mentioned that Raj Kumar had
executed Will in favour of Appellants Kuldeep Kumar and Pradeep Kumar but the said
Appellants were shown in cause title only as heirs of Shiv Kumar and not as owners. No
objection was, however, raised by the tenant on that account.

Aggrieved by the decree of the trial Court, the tenant preferred a revision petition before
the District Judge, Moradabad, which was allowed vide order dated 2nd September,
2004. It was held that the Plaintiff had himself produced the Will dated 14th December,
1988 whereby Raj Kumar, original owner of the property in question bequeathed the
property in favour of the Appellants Pradeep Kumar and Kuldeep Kumar sons of Shiv
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 Kumar. In such situation, Shiv Kumar did not have any right to file the suit and only his
sons had such a right.

Supreme Court Said “No decree shall be reversed or substantially varied, nor shall any
case be remanded, in appeal on account of any misjoinder [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; Provided that nothing in
this section shall apply to non-joinder of a necessary party”.

Powers of First Appellate Court

S.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.

Accordingly most of the things which may be done by the Trial Court can also be done
by the Appellate Court.

Under Order 6 Rule 17 C.P.C. plaint or written statement may be amended. The rule
itself provides that the Court may, at any stage of the proceedings, allow either party to
alter or amend his pleading. Accordingly, amendment in plaint or written statement may
be sought even during pendency of appeal. However, in this regard great caution must be
taken and the first thing which is to be seen is as to why amendment application was not
filed before the trial court during continuance of the suit.

Proviso has been added to Order 6 Rule 17 to the following effect: "Provided that no
application for amendment shall be allowed after the trial has commenced unless the
court comes to the conclusion that in spite of due diligence the party could not have
raised the matter before the commencement of trial.”

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 References

 Civil Procedure (CPC) with Limitation Act, 1963 by C.K.Takwani

 http://www.manupatrafast.in/pers/Personalized.aspx

 https://www.lawteacher.net/free-law-essays/administrative-law/passing-of-the-ex-parte-
decree-administrative-law-essay.php

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