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1. [65.655] Meaning of “appeal”

Client/Matter: -None-
2. [65.656] Appeals from original decrees
3. [65.657] Essentials
4. [65.658] Appeal is continuation of suit
5. [65.659] Who may appeal
6. [65.660] Who cannot appeal
7. [65.661] Addition of respondent
8. [65.662] Waiver of right of appeal
9. [65.663] Indian law
10. [65.664] English law
11. [65.665] American law
12. [65.666] Appeal and suit
13. [65.667] Appeal and revision
14. [65.668] General principles
15. [65.669] Objection by respondent
16. [65.670] First appeal
17. [65.671] Conversion of appeal into revision
18. [65.672] Whether right of appeal may be lost
19. [65.673] Right of appellant to abandon or withdraw appeal
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20. [65.674] Forum
21. [65.675] Form of appeal
22. [65.676] Right to begin
23. [65.677] Appeal and memorandum of appeal
24. [65.678] Presentation of appeal
25. [65.679] Admission of appeal
26. [65.680] Stay by appellate court
27. [65.681] Stay by court which passed the decree
28. [65.682] Security in case of order for execution of decree appealed from
29. [65.683] Limitation
30. [65.684] Condonation of delay
31. [65.685] Copies of judgment and decree to be furnished to parties
32. [65.686] Certified copy of decree to be sent to court whose decree appealed from
33. [65.687] Determination of case finally
34. [65.688] Ex parte hearing and rehearing
35. [65.689] Dismissal for default
36. [65.690] Dismissal in limine
37. [65.691] Restoration of appeal
38. [65.692] Pronouncing of judgment
39. [65.693] What judgment may direct
40. [65.694] Dissent to be recorded
41. [65.695] Contents, date and signature of judgment
42. [65.696] Appeals against judgment
43. [65.697] Appeals against finding
44. [65.698] Appeals without decree
45. [65.699] Appeals by one plaintiff against co-plaintiff
46. [65.700] Appeals by one defendant against co-defendant
47. [65.701] Appeals against dead person
48. [65.702] Appeals by minor
49. [65.703] Appeals against ex parte decrees
50. [65.704] Appeals against consent decree
51. [65.705] Appeals in petty cases
52. [65.706] Infructuous appeals
53. [65.707] Withdrawal of incompetent appeals
54. [65.708] Decision in time barred appeals
55. [65.709] Valuation in appeals
56. [65.710] Execution proceedings
57. [65.711] Subsequent events
58. [65.712] Alternative reliefs
59. [65.713] Nature and scope
60. [65.714] Who may file cross-objections
61. [65.715] Against whom cross-objections may be filed
62. [65.716] Omission to file cross-objections
63. [65.717] Principles
64. [65.718] Form of cross-objection
65. [65.719] Procedure at hearing
66. [65.720] Limitation
67. [65.721] Powers of appellate court
68. [65.722] Final determination
69. [65.723] Power to remand case
70. [65.724] Remand :
71. [65.725] Discretion of appellate court
72. [65.726] Conditions
73. [65.727] Duty of trial court
74. [65.728] Effect
75. [65.729] Remand by where suit disposed of on preliminary point
76. [65.730] Remand in other cases
77. [65.731] Date of next hearing
78. [65.732] Frame of issues and referral of issues for trial
79. [65.733] Evidence and findings
80. [65.734] Effect
81. [65.735] Generally
82. [65.736] Meaning of “additional evidence”
83. [65.737] Nature and scope of power to admit additional evidence
84. [65.738] Object of admitting additional evidence
85. [65.739] Circumstances in which additional evidence may be admitted
86. [65.740] Improper refusal by trial court to admit evidence
87. [65.741] Power to accept additional evidence
88. [65.742] Mode of taking additional evidence
89. [65.743] Recording of reasons
90. [65.744] Scope and object of power
91. [65.745] Modification of decree
92. [65.746] Modification of decree in case of cross-objections
93. [65.747] Conditions for modification of decree
94. [65.748] Period of limitation
95. [65.749] Generally
96. [65.750] To decide appeal in accordance with law
97. [65.751] Appreciation of evidence
98. [65.752] Recording of reasons
99. [65.753] Mode of expression of reasons
100. [65.754] Non interference with decree for technical errors
[65.655] Meaning of “appeal”
Halsbury's Laws of India (Civil Procedure) 2nd Edn
Halsbury's Laws of India (Civil Procedure) 2nd Edn > Halsbury's Laws of India (Civil Procedure,
Vol 5) 2nd ed > 26. APPEALS > (1) FIRST APPEALS FROM DECREES > A. Meaning and
Prerequisites
65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed
26. APPEALS
(1) FIRST APPEALS FROM DECREES
A. Meaning and Prerequisites
[65.655] Meaning of “appeal”

The expression “appeal” has not been defined in the Code of Civil Procedure, 1908. Any application by a party to
an appellate court, asking it to set aside or reverse a decision of a subordinate court, is an appeal within the
ordinary acceptation of the term1. It is an application or a petition to a higher court for a re-consideration of the
decision of a lower court2. It is a proceeding for review to be carried out by a higher authority of a decision given by
a lower one3.
1 Nagendra Nath Dey v Suresh Chandra Dey, AIR 1932 PC 165 at167 : (1931) 59 IA 283 at 287; Shankar Ramchandra
Abhyankar v Krishnaji Dattatraya Bapat, AIR 1970 SC 1 [LNIND 1969 SC 170]at 3 : (1969) 2 SCC 74 [LNIND 1969 SC
170] at 77 : [1970] 1 SCR 322 [LNIND 1969 SC 170]; Namamal v Radhey Shyam, AIR 1970 Raj 26 [LNIND 1969 RAJ
93]at 31 : (1969) ILR 19 Raj 327 : (1969) Ren CR 922 (FB). As to the principles and procedure applicable to appeals
from original decrees see [65.668] and following and [65.674] and following respectively.
2 Chambers’ 20th Century Dictionary (1997) p 59; Webster’s Encyclopedic Unabridged Dictionary (1994) p 72; Wharton’s
Law Lexicon p 72. See Nagendra Nath Dey v Suresh Chandra Dey, AIR 1932 PC 165 at 167 : 137 IC 529 : 59 IA 283
at 287.
3 See note 1 above; and Sita Ram v State of Uttar Pradesh, AIR 1979 SC 745 [LNIND 1979 SC 65]: (1979) 2 SCC 656
[LNIND 1979 SC 65] : [1979] 2 SCR 108; Shankar Ramchandra Abhyankar v Krishnaji Dattatreya Bapat, AIR 1970 SC
1 [LNIND 1969 SC 170]at 3 : (1969) 2 SCC 74 [LNIND 1969 SC 170] at 77 : [1970] 1 SCR 322 [LNIND 1969 SC 170];
Lakshmiratan Engineering Works Ltd v Assistant Commissioner of Sales Tax, (Judiciary) I, Kanpur Range, Kanpur,
Uttar Pradesh, AIR 1968 SC 488 [LNIND 1967 SC 265]at 492 : (1968) 1 SCC 505 : [1968] 1 SCR 505 [LNIND 1967
SC 265]; Dayawati v Inderjit, AIR 1966 SC 1423 [LNIND 1966 SC 15]at 1427 : [1966] 3 SCR 275 [LNIND 1966 SC 15];
Garikapati Veeraya v N Subbiah Choudhry, AIR 1957 SC 540 [LNIND 1957 SC 10]: (1957) SCC 339 : [1957] SCR 488
[LNIND 1957 SC 10]; Mela Ram & Sons v CIT, Punjab, AIR 1956 SC 367 [LNIND 1956 SC 20]at 371 : [1956] SCR 166
[LNIND 1956 SC 20] : (1956) SCJ 374 [LNIND 1956 SC 20]; Raja Kulkarni v State of Bombay, AIR 1954 SC 73
[LNIND 1953 SC 104]: [1954] SCR 384 [LNIND 1953 SC 104] : (1954) SCJ 50; Nagendra Nath Dey v Suresh Chandra
Dey, AIR 1932 PC 165 at 167 : 59 IA 283 at 287 : 137 IC 529.
End of Document
[65.656] Appeals from original decrees
Prerequisites
26. APPEALS
[65.656] Appeals from original decrees

Except where otherwise expressly provided in the body of the Code of Civil Procedure, 1908 or by any other law for
the time being in force, an appeal lies from every decree passed by any court exercising original jurisdiction to the
court authorised to hear appeals from the decisions of such court1.
However, no appeal lies, 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 rupees ten
thousand2. In the case of an appeal from a decision in a suit involving a substantial question of law as to the
interpretation of the Constitution or as to the validity of a statutory instrument3, the word “defendant” is held to
include a respondent and the word “suit” an appeal4.
1 Code of Civil Procedure, 1908 section 96 (1). As to the meaning of “appeal” and its essential elements see [65.655] and
[65.657] respectively.
2 Code of Civil Procedure, 1908 section 96 (4) (as amended by the Code of Civil Procedure (Amendment) Act, 1999).
3 Ie under the Code of Civil Procedure, 1908 O XXVIIA: see [65.555].
4 Code of Civil Procedure, 1908 O XXVIIA rule 4.
End of Document
[65.657] Essentials
Prerequisites
26. APPEALS
[65.657] Essentials
An appeal includes three basic elements: (1) a decision, usually a judgment of a court or the ruling of an
administrative body, from which an appeal is made; (2) a person aggrieved, who is often, though by no means
necessarily, a party to the original proceedings; and (3) a reviewing body, ready and willing to entertain the appeal1.
Thus, the following are essential to constitute appellate jurisdiction: (a) the existence of the relation of a superior
and an inferior court; and (b) the power on the part of the former to review the decision of the latter2.
1 Story on Constitution of United States Vol 2 Article 1761. See also Sita Ram v State of Uttar Pradesh, AIR 1979 SC
745 [LNIND 1979 SC 65]: (1979) 2 SCC 656 [LNIND 1979 SC 65]. As to the principles and procedure applicable to
appeals from original decrees see [65.668] and following and [65.674] and following respectively.
2 Shankar Ramchandra Abhyankar v Krishnaji Dattatraya Bapat, AIR 1970 SC 1 [LNIND 1969 SC 170]at 3 : (1969) 2
SCC 74 [LNIND 1969 SC 170] at 77 : [1970] 1 SCR 322 [LNIND 1969 SC 170].
End of Document
[65.658] Appeal is continuation of suit
Prerequisites
26. APPEALS
[65.658] Appeal is continuation of suit

In appeal is continuation of suit1. A suit is a judicial proceeding and the expression “proceedings” must be taken to
include all the proceedings in the suit from the date of its institution till its final disposal and as such to include
proceedings in appeal2.
1 Garikapati v Subbiah Choudhry, AIR 1957 SC 540 [LNIND 1957 SC 10]at 553 : [1957] SCR 488 [LNIND 1957 SC 10];
Nair Service Society Ltd v Alexander, AIR 1968 SC 1165 [LNIND 1968 SC 41]at 1177 : [1968] 3 SCR 163 [LNIND
1968 SC 41]; Mithilesh Kumari v Prem Behari, AIR 1989 SC 1247 [LNIND 1989 SC 96]: (1989) 2 SCC 95 [LNIND 1989
SC 96] (109–10); Darshan Singh v Ram Pal Singh, AIR 1991 SC 1654 [LNIND 1990 SC 725]at 1665; Dilip v Mohd
Azizul Haq, (2000) 3 SCC 607 [LNIND 2000 SC 475] (612–13); Kamla Devi v Khushal Kanwar, AIR 2007 SC 663
[LNIND 2006 SC 1162]: (2006) 13 SCC 295 [LNIND 2006 SC 1162].
2 Ratanchand v Hanmantray, (1869) 6 Bom HCR 166 (per Couch, CJ); see also Chinto Joshi v Krishnaji Narayan, (1869)
ILR 3 Bom 214; see note 1.
End of Document
[65.659] Who may appeal
Vol 5) 2nd ed > 26. APPEALS > (1) FIRST APPEALS FROM DECREES > B. Parties
26. APPEALS
B. Parties

The Code of Civil Procedure, 1908 recognises a right of appeal1. It does not, however, enumerate persons who
may file an appeal. As a general rule, before an appeal may be filed, two conditions must be satisfied:
(1) the subject matter of appeal must be a “decree”, that is, a conclusive determination of “the rights of the
parties with regard to all or any of the matters in controversy in the suit”2; and
(2) the party appealing must have been adversely affected by such determination3.
Normally, only a party to a suit adversely affected by a decree or any of his representatives-in-interest may file an
appeal4. However, a person who is not a party to a decree or an order may prefer an appeal with the leave of the
court from such decree or order if he is either bound by the decree or order or is otherwise prejudicially affected by
it, as in such a case he may be said to be an “aggrieved person”5.
The test to determine whether a person is aggrieved by a decision is whether it is to his detriment, pecuniary or
otherwise or causes him some prejudice in some form or other6. A decision cannot be said to affect a person
adversely unless it will operate as res judicata against him7. In order to decide whether a decision will operate as
res judicata, the substance of the judgment and decree, and not the form of it, must be considered.
The question whether a party is adversely affected by a decree or an order is a question of fact to be determined
considering the circumstances in each case8.
Ordinarily, the following persons may prefer an appeal:
(a) a party to the suit who is aggrieved or adversely affected by the decree or, if such party is dead, his legal
representatives10;
(b) a person claiming under a party to the suit or a transferee of the interests of such party, who, so far as
such interest is concerned, is bound by the decree, provided his name is entered on the record of the
suit11;
(c) a guardian ad litem appointed by the court in a suit by or against a minor or a lunatic12;
(d) any other person, with the leave of the court, if he is adversely affected by the decree13.
Page 2 of 2
1 Code of Civil Procedure, 1908 section 96. As to the waiver of the right of appeal see [65.662].
2 See [65.009].
3 State of Punjab (now Haryana) v Amar Singh, AIR 1974 SC 994 [LNIND 1974 SC 16]at 1006 : (1974) 2 SCC 70
[LNIND 1974 SC 16] at 89 : [1974] 3 SCR 152 [LNIND 1974 SC 16].
4 See note 3 above.
5 Adi Pherozshah Gandhi v HM Seervai, Advocate General of Maharashtra, Bombay, AIR 1971 SC 385 [LNIND 1970
SC 332]at 399 : (1970) 2 SCC 484 [LNIND 1970 SC 332] at 503 : [1971] 1 SCR 863 [LNIND 1970 SC 332]; Jatan
Kanwar Golcha v Golcha Properties Pvt Ltd (in liquidation), AIR 1971 SC 374 [LNIND 1970 SC 484]at 376 : (1970) 3
SCC 573 [LNIND 1970 SC 484] at 575 : [1971] 3 SCR 247 [LNIND 1970 SC 484].
SC 332]at 399 : (1970) 2 SCC 484 [LNIND 1970 SC 332] at 503 : [1971] 1 SCR 863 [LNIND 1970 SC 332].
SC 332]at 399 : (1970) 2 SCC 484 [LNIND 1970 SC 332] at 503 : [1971] 1 SCR 863 [LNIND 1970 SC 332]; State of
Punjab (now Haryana) v Amar Singh, AIR 1974 SC 994 [LNIND 1974 SC 16]at 1006 : (1974) 2 SCC 70 at 89 : [1974] 3
SCR 152 [LNIND 1974 SC 16].
8 Mulla Code of Civil Procedure (16th Edn, 2002) Vol 1. See Adi Pherozshah Gandhi v H M Seervai, Advocate General
of Maharashtra, Bombay, AIR 1971 SC 385 [LNIND 1970 SC 332]at 399 : (1970) 2 SCC 484 at 503 : [1971] 1 SCR
863 [LNIND 1970 SC 332].
10 Code of Civil Procedure, 1908 section 146. See Kirpal Kaur v Bachan Singh, AIR 1958 SC 199 [LNIND 1957 SC 146]:
[1958] SCR 948 : (1958) SCJ 438; Saila Bala Dassi v Nirmala Sundari Dassi, AIR 1958 SC 394 [LNIND 1958 SC 8]:
[1958] SCR 1287 [LNIND 1958 SC 8] : (1958) SCJ 743 [LNIND 1958 SC 8].
11 Code of Civil Procedure, 1908 section 146.
12 Code of Civil Procedure, 1908 section 147, O XXXII rule 5.
13 State of Punjab (now Haryana) v Amar Singh, AIR 1974 SC 994 [LNIND 1974 SC 16]at 1006 : (1974) 2 SCC 70
[LNIND 1974 SC 16] at 89 : [1974] 3 SCR 152 [LNIND 1974 SC 16]; Adi Pherozshah Gandhi v HM Seervai, Advocate
General of Maharashtra, Bombay, AIR 1971 SC 385 [LNIND 1970 SC 332]at 399 : (1970) 2 SCC 484 at 503 : [1971] 1
SCR 863 [LNIND 1970 SC 332].
End of Document
[65.660] Who cannot appeal
26. APPEALS
B. Parties
[65.660] Who cannot appeal

A person who is not a party to the suit nor adversely affected by the decree or order or a party to the suit who is not
aggrieved by the judgment, order or decree cannot prefer an appeal. A competent legislature may also take away
right of appeal1. Again, if a court to which an appeal lies is abolished, the right to file an appeal is lost2. Where an
aggrieved party waives his right to file an appeal, he cannot exercise such right thereafter3.
1 Jose Da Costa v Bascora Sadasiva, AIR 1975 SC 1843 [LNIND 1976 SC 162]: (1976) 2 SCC 917 [LNIND 1976 SC
162]; See also [65.672].
2 See note 1; see also [65.672].
3 See [65.662].
End of Document
[65.661] Addition of respondent
26. APPEALS
B. Parties
[65.661] Addition of respondent

Where it appears to the court at the hearing of an appeal that any person who was a party to the suit in the court
from whose decree the appeal is preferred but who has not been made a party to the appeal, is interested in the
result of the appeal, the court may adjourn the hearing to a future day to be fixed by the court and direct that such
person be made a respondent1.
No respondent may be added under this rule after the expiry of the period of limitation for appeal, unless the court,
for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit2.
The object of this provision is to protect parties to the suit who have not been made respondents in the appeal from
being prejudiced behind their back in the decree under appeal3.
The appellate court has also inherent power to add a party as respondent or to transpose a party from one category
to another4.
1 Code of Civil Procedure, 1908 O XLI rule 20 (1). As to who may appeal see [65.659].
2 Code of Civil Procedure, 1908 O XLI rule 20 (2). See Surat Singh v Manohar Lal, AIR 1971 SC 240 : (1971) 3 SCC
889.
3 Subramaniam v Veerabhadram, (1908) ILR 31 Mad 442 at 444; Chockalingam v Seethai, AIR 1927 PC 252 : 55 IA 71;
the Law Commission of India, 27th Report p 240; 54th Report pp 292–95.
4 United Provinces v Atiqa Begum, AIR 1941 FC 16 at 28 : 1940 FCR 110 : 194 IC 246; Saila Bala Dassi v Nirmala
Sundari Dassi, AIR 1958 SC 394 [LNIND 1958 SC 8]at 398 : [1958] SCR 1287 [LNIND 1958 SC 8] : (1958) SCJ 743
[LNIND 1958 SC 8]; Notified Area Committee v Govind Ram, AIR 1959 Punj 277 at 287 : ILR 1959 Punj 1066 : 61 Punj
LR 326 (FB).
End of Document
[65.662] Waiver of right of appeal
26. APPEALS
B. Parties
[65.662] Waiver of right of appeal

Where a party agrees not to appeal, he is bound by such agreement if it is otherwise legal and valid1. However,
such agreement must be clear and unambiguous. Whether a party has waived his right of appeal depends upon the
facts and circumstances of each case. Again, if a party has accepted the benefits under the decree of the court, he
is estopped from challenging the legality of the decree2. Finally, the vested right of appeal stands destroyed if the
court to which an appeal lies is abolished altogether without any forum being substituted in its place3.
Jurisdiction cannot be conferred upon a court by estoppel, acquiescence or waiver to entertain an appeal if such
appeal is not maintainable. Where there is an inherent lack of jurisdiction in the court to entertain an appeal, the
defect goes to the root and cannot be cured even by the consent of the parties4.
1 Ameer Ali v Inderjeet, (1871) 14 Moo Ind App 203 : 14 IA 203 PC; Mahamed Mian v Usman Ali, AIR 1935 Cal 239 :
(1935) ILR 62 Cal 229; Hakim Bashir v Saiyed Sadiq, AIR 1929 Oudh 451 : (1930) ILR 5 Luck 391; Pratab Chunder v
Arathoon, (1882) ILR 8 Cal 455. As to who may appeal see [65.659].
2 Dexter Ltd v Hill Crest Oil Co, [1926] 1 KB 348 : 95 LJKB 386 (one cannot take the benefit of a judgment as being
good and then appeal against it as being bad); Ramesh Chandra Chandiok v Chunni Lal Sabharwal (decd) by lrs, AIR
1971 SC 1238 [LNIND 1970 SC 406]: (1970) 3 SCC 40 : [1971] 2 SCR 573 [LNIND 1970 SC 406]. See generally [140]
estoppel and waiver (“It startles me that a person can say the judgment is wrong and at the same time accept the
payment under the judgment as being right.” Per Scrutton, LJ in Verschures Creameries v Hulland Netherlands
Steamship Co, [1921] 2 KB 608 .)
3 State of Punjab (now Haryana) v Amar Singh, AIR 1974 SC 994 [LNIND 1974 SC 16]: (1974) 2 SCC 70 [LNIND 1974
SC 16] : [1974] 3 SCR 152 [LNIND 1974 SC 16]; Adi Pherozshah Gandhi v HM Seervai, Advocate General of
Maharashtra, Bombay, AIR 1971 SC 385 [LNIND 1970 SC 332]: (1970) 2 SCC 484 [LNIND 1970 SC 332].
4 KC Dora v G Annamanaidu, AIR 1974 SC 1069 [LNIND 1973 SC 388]: (1974) 1 SCC 567 [LNIND 1973 SC 388] :
[1974] 2 SCR 655 [LNIND 1973 SC 388].
End of Document
[65.663] Indian law
Vol 5) 2nd ed > 26. APPEALS > (1) FIRST APPEALS FROM DECREES > C. Right of Appeal >
(i) Comparative Analysis of Legislation
26. APPEALS
C. Right of Appeal
[65.663] Indian law

A right of appeal is neither a natural nor an inherent right. It is well settled that an appeal is a creature of statute and
there is no right of appeal unless it is given clearly and in express terms by a legislation. Thus, a right of appeal
requires legislative authority1. Under the Indian law, the right of appeal arises when a proceeding is commenced
and cannot be taken away by subsequent legislation except by an express provision or by necessary intendment to
the contrary2. A single right of appeal is considered to be a universal requirement of life and liberty rooted in the
conception that all human beings are fallible and judges are not an exception to this rule. It is said that a judge who
has not committed any error is yet to be born3. Absence of one right of appeal is a glaring lacuna in a system
governed by the Rule of Law4.
But it is equally well-settled that mere absence of a right of appeal (revision or review) would not render a legislative
provision ipso facto bad in law, ultra vires or unconstitutional5.
Ordinarily, the rights of the litigants are determined according to the law in force at the date of the suit and a court of
appeal does not take into consideration a new law which came into force after the judgment appealed from had
been rendered. This, however, is not an absolute rule of inviolability. Where the new law either expressly or by
necessary implication covers even pending matters, a court of appeal cannot ignore such command and must give
effect to the change in the law6.
1 M Ramnarain v State Trading Corp of India, AIR 1983 SC 786 [LNIND 1983 SC 143]at 795 : (1983) 3 SCC 75 [LNIND
1983 SC 143] at 93 : [1983] 3 SCR 25 [LNIND 1983 SC 143]; AR Antulay v RS Nayak, AIR 1988 SC 1531 [LNIND
1988 SC 264]: (1988) 2 SCC 602 [LNIND 1988 SC 264] at 661.
2 Delhi Cloth and General Mills Co Ltd v ITC, Delhi, AIR 1927 PC 242 [LNIND 1927 BOM 129]: 54 IA 421; Dayawati v
Inderjit, AIR 1966 SC 1423 [LNIND 1966 SC 15]: [1966] 3 SCR 275 [LNIND 1966 SC 15] : (1966) 2 SCJ 784 [LNIND
1966 SC 15]; Garikapati Veeraya v N Subbiah Choudhry, AIR 1957 SC 540 [LNIND 1957 SC 10]: (1957) SCC 339 :
[1957] SCR 488 [LNIND 1957 SC 10]; Hoosein Kasam Dada v State of Madhya Pradesh, AIR 1953 SC 221 [LNIND
1953 SC 20]: [1953] SCR 987 [LNIND 1953 SC 20]. As to the English and American civil procedural laws see [65.664]–
[65.665].
Page 2 of 2
[65.663] Indian law
3 Mona Panwar v High Court of Allahabad, (2011) 3 SCC 496 [LNIND 2012 SC 1503].
4 Sita Ram v State of Uttar Pradesh, AIR 1979 SC 745 [LNIND 1979 SC 65](754, 759) : (1979) 2 SCC 656 [LNIND 1979
SC 65] at 669 and 676; Prithi Pal Singh v UOI, AIR 1982 SC 1473 [LNIND 1982 SC 135]: (1982) 3 SCC 140 [LNIND
1982 SC 123]; AR Antulay v RS Nayak, AIR 1988 SC 1531 [LNIND 1988 SC 264]: (1988) 2 SCC 602 [LNIND 1988 SC
264].
5 Babubhai v State of Gujarat, AIR 1985 SC 613 [LNIND 1985 SC 117]: (1985) 2 SCC 732 [LNIND 1985 SC 117];
Prakash Amichand Shah v State of Gujarat, AIR 1986 SC 468 [LNIND 1985 SC 369]: (1986) 1 SCC 581 [LNIND 1985
SC 369]; Kartar Singh v State of Punjab, (1994) 3 SCC 569 : 1994 Cr LJ 3139.
6 Dayawati v Inderjit, AIR 1966 SC 1423 [LNIND 1966 SC 15]: [1966] 3 SCR 275 [LNIND 1966 SC 15] : (1966) 2 SCJ
784 [LNIND 1966 SC 15].
End of Document
[65.664] English law
26. APPEALS
C. Right of Appeal
[65.664] English law

Under English law, the right of appeal is determined on the basis of the commencement of proceedings and not on
the basis of the judgment of the court against which an appeal is preferred1. It has been accepted under English law
that all statutes should be interpreted so as to respect a vested right. The golden rule of construction is that in the
absence of any indication in the enactment to show that it is to have retrospective operation, it must be construed to
alter the law applicable to a claim in litigation at the time when the statute was enacted. However, in special cases,
the new law ought to be construed so as to interfere as little as possible with vested rights2.
1 Hough v Windus, (1889) 12 QBD 224 ; see also Reid v Reid, (1886) 31 ChD 402 . As to Indian and American civil
procedural laws see [65.663] : [65.665].
2 See note 1 above; and Colonial Sugar Refining Co Ltd v Irving, [1905] AC 369 , PC (not to be construed so as to
deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right).
End of Document
[65.665] American law
26. APPEALS
C. Right of Appeal
[65.665] American law

In the USA, the right of appeal is determined in accordance with the law as it is on the date of judgment and not on
the date of the commencement of the action. Unless it is evident from the terms of a statute which gives, takes
away or modifies the remedy by appeal or other mode of review that it was intended to have a retroactive effect, it
applies only to cases pending and undetermined at the time when it goes into effect and has no application to cases
in which final judgment has been entered or rendered although not entered prior to that time, particularly, where it is
expressly provided that the statute is not to affect existing remedies1.
1 Garikapatti Veeraya v N Subbiah Choudhry, AIR 1957 SC 540 [LNIND 1957 SC 10]: (1957) SCC 339 : [1957] SCR
488 [LNIND 1957 SC 10] (citing Corpus Juris Secundum, American Jurisprudence). As to Indian and English civil
procedural laws see [65.663]–[65.664].
End of Document
[65.666] Appeal and suit
(ii) Appeal Distinguished from Suit and Revision
26. APPEALS
C. Right of Appeal

An appeal is a continuation of a suit1. A suit is a judicial proceeding, and the word “proceedings” must be taken to
include all the proceedings in the suit from the date of its institution to its final disposal, and, therefore, to include
proceedings in appeal2. An appeal is the right of entering a superior court and invoking its aid and interposition to
redress the error of the court below. The only difference between a suit and an appeal is that an appeal only
reviews and corrects the proceedings in a cause already constituted but does not create the cause3.
There is a fundamental distinction between a suit and an appeal. An appeal is a creature of statute and it is for the
legislature to decide whether the right of appeal should be conferred on the aggrieved party or not. Such right is
neither an inherent nor a natural right. On the other hand, every person has an inherent right to file a suit of a civil
nature, unless such suit is barred by a statute, either expressly or impliedly4.
488 [LNIND 1957 SC 10]; Dilip v Mohd Azizul Haq, (2000) 3 SCC 6071; PMA Metropolitan v Moran Mar Marthoma, AIR
1995 SC 2001 [LNIND 1995 SC 680]: (1995) Supp 4 SCC 286 : (1995) 5 JT 1 [LNIND 1995 SC 680]; Darshan Singh v
Ram Pal Singh, AIR 1991 SC 1654 [LNIND 1990 SC 725]at 1665 : (1992) Supp 1 SCC 191 at 212 : (1990) 4 JT 561
[LNIND 1990 SC 725]; Mithilesh Kumari v Prem Bihari Khare, AIR 1989 SC 1247 [LNIND 1989 SC 96]: (1989) 2 SCC
95 [LNIND 1989 SC 96] : (1989) 1 JT 275 [LNIND 1989 SC 96]; Lakshmi Narayan v Niranjan, (1985) 1 SCC 270
[LNIND 1984 SC 328]; Nair Service Society Ltd v KC Alexander, AIR 1965 SC 1165 [LNIND 1954 SC 52]: [1968] 3
SCR 163 [LNIND 1968 SC 41]. As to the meaning of “suit” see [65.013]. As to the distinction of appeal from revision
see [65.667].
488 [LNIND 1957 SC 10] (citing Ratan Chand Shrichand v Hanmantrary Shivbakas, (1869) 6 Bom HCR 166 per Couch
CJ).
3 Dayawati v Inderjit, AIR 1966 SC 1423 [LNIND 1966 SC 15]at 1427 : [1966] 3 SCR 275 [LNIND 1966 SC 15] : (1966) 2
SCJ 784 [LNIND 1966 SC 15].
4 Ganga Bai v Vijay Kumar, AIR 1974 SC 1126 [LNIND 1974 SC 142]: (1974) 2 SCC 393 [LNIND 1974 SC 142] : [1974]
3 SCR 882 [LNIND 1974 SC 142].
Page 2 of 2
End of Document
[65.667] Appeal and revision
26. APPEALS
C. Right of Appeal
[65.667] Appeal and revision

The revisional jurisdiction of a court is a part and parcel of its appellate jurisdiction. When the aid of a superior court
is invoked on the revisional side, it is done because it is a superior court and can interfere by correcting and
rectifying an error committed by an inferior court. In other words, revisional jurisdiction is one of the modes of
exercising powers conferred by the statute on a superior court. Basically and fundamentally, it is the appellate
jurisdiction which is being invoked and exercised in a wider and larger sense1.
However, there is an essential distinction between the two. A right of appeal carries with it a right of rehearing on
law as well as on fact, unless the statute conferring the right of appeal limits such rehearing in one way or the other.
The power to hear a revision is given to a superior court so that it may satisfy itself that the case on hand has been
decided according to the law. The conferment of revisional jurisdiction is to keep subordinate courts within the limits
of their jurisdiction and to make them act according to the procedure established by law2.
1 Shankar Ramchandra Abhyankar v Krishnaji Dattatreya Bapat, AIR 1970 SC 1 [LNIND 1969 SC 170]at 4 : (1969) 2
SCC 74 [LNIND 1969 SC 170] : [1970] 1 SCR 322 [LNIND 1969 SC 170]. As to the distinction of appeal from suit see
[65.666].
2 Hari Shankar v Rao Girdhari Lal Chowdhury, AIR 1963 SC 698 [LNIND 1961 SC 374]at 700–701 : [1962] Supp 1 SCR
933 : (1962) SCD 579 [LNIND 1961 SC 374]; Sarla Ahuja v United India Insurance Co Ltd, (1998) 8 SCC 119 [LNIND
1998 SC 1582] at 122; Associated Cement Co Ltd v Keshvanand, (1998) 1 SCC 687 [LNIND 1997 SC 1634]; Manick
Chandra Nandy v Debdas Nandy, AIR 1986 SC 446 : (1986) 1 SCC 512 at 516–517 : (1985) 2 Scale 1478; Shaik Jaffar
Shaikh Mahmood v Mohd Pasha Hakkani Saheb, AIR 1975 SC 794 [LNIND 1974 SC 394]: (1975) 1 SCC 25 [LNIND
1974 SC 394] at 28 : [1975] 2 SCR 890 [LNIND 1974 SC 394]; Amarjit Kaur v Pritam Singh, AIR 1974 SC 2068
[LNIND 1974 SC 210]: (1974) 2 SCC 363 [LNIND 1974 SC 210] : [1975] 1 SCR 605 [LNIND 1974 SC 210].
End of Document
[65.668] General principles
(iii) Principles
26. APPEALS
C. Right of Appeal
(iii) Principles
[65.668] General principles

The following are well settled principles relating to a right of appeal7:
(1) the legal pursuit of a remedy, suit, appeal and second appeal are really steps in a series of proceedings all
connected by an intrinsic unity and are to be regarded as one legal proceeding;
(2) the right of appeal is not a mere matter of procedure but is a substantive right;
(3) the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to
the parties to such suit for the duration of the suit;
(4) the right of appeal is a vested right and a right to enter the superior court accrues to the litigant and exists
as, on and from the date the lis commences and although it may be actually exercised when an adverse
judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of
the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing
of the appeal;
(5) this vested right of appeal may be taken away only by a subsequent enactment, if it so provides expressly
or by necessary intendment and not otherwise1.
488 [LNIND 1957 SC 10]. As to the right of an appellant to abandon or withdraw an appeal see [65.673].
End of Document
[65.669] Objection by respondent
(iii) Principles
26. APPEALS
C. Right of Appeal
(iii) Principles

Any respondent, though he may not have appealed from any part of the decree, may not only support the decree
but may also state that the finding against him in the court below in respect of any issue ought to have been in his
favour and may also take any cross-objection to the decree which he could have taken by way of appeal, provided
he has filed such objection in the appellate court within one month from the date of service on him or his pleader of
notice of the day fixed for hearing the appeal or within such further time as the appellate court may see fit to allow1.
A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based
may file a cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by
reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree is,
wholly or in part, in favour of that respondent2.
Such cross-objection must be in the form of a memorandum, the form and contents of which must be as for a
memorandum of appeal3.
Where, in any case in which any respondent has filed a memorandum of objection, the original appeal is withdrawn
or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the
other parties as the court thinks fit4. The provisions relating to appeals by indigent persons5, so far as they can be
made applicable, apply to an objection under these provisions6.
1 Code of Civil Procedure, 1908 O XLI rule 22 (1) see [65.714]-[65.720].

2 Code of Civil Procedure, 1908 O XLI rule 22 (1) explanation.
3 Code of Civil Procedure, 1908 O XLI rule 22 (2). O XLI rule 1 (see [65.675]) applies to such memorandum so far as it
relates to the form and content of a memorandum of appeal: O XLI rule 22 (2).
4 Code of Civil Procedure, 1908 O XLI rule 22 (4).
5 See [65.524]–[65.638].
Page 2 of 2
End of Document
[65.670] First appeal
(iii) Principles
26. APPEALS
C. Right of Appeal
(iii) Principles
[65.670] First appeal

A first appeal lies against a decree passed by a court exercising original jurisdiction. Such appeal may be filed on a
question of fact or on a question of law or on a mixed question of fact and law. It may be filed in a superior court,
which may or may not be a High Court1.
1 Garikapatti Veeraya v N Subbiah Choudhury, AIR 1957 SC 540 [LNIND 1957 SC 10]: (1957) SCC 339 : [1957] SCR
488 [LNIND 1957 SC 10]. As to the conversion of appeal into revision see [65.671].
End of Document
[65.671] Conversion of appeal into revision
(iii) Principles
26. APPEALS
C. Right of Appeal
(iii) Principles
[65.671] Conversion of appeal into revision

There is no express provision in the Code of Civil Procedure, 1908 permitting the conversion of an appeal into a
revision1 or vice versa. If an appeal is preferred in a case in which no appeal lies, the court may permit the
conversion of an appeal into a revision petition. Similarly, the court may allow a party to convert a revision petition
into an appeal.
The power to grant conversion is discretionary2. Since there is no specific provision for such conversion, the court
may invoke its inherent powers3. There is no period of limitation for applying such conversion. However, in
exercising the power of conversion, the court will keep in mind whether the appeal or revision, as the case may be,
had been instituted within the time prescribed for such proceeding4.
1 As to the distinction between appeal and revision see [65.667].

2 Reliable Water Supply Service of India v UOI, AIR 1972 SC 2083 : (1972) 4 SCC 168; Amal Chandra v Anita Biswas,
(2006) 4 Cal HC (Notes) 644.
3 See note 2 above. As to the inherent powers of the court see [65.0054] and following.
4 Bahri v Vidya Ram, AIR 1978 All 299 at 301 : (1978) All WC 387; Ram Prasad Rajak v Nand Kumar & Bros, AIR 1998
SC 2730 [LNIND 1998 SC 767]: (1998) 6 SCC 748 [LNIND 1998 SC 767] : (1998) 5 JT 540 [LNIND 1998 SC 767]; JK
Cotton Spinning and Weaving Mills Co Ltd v Collector of Central Excise, AIR 1998 SC 1270 [LNIND 1998 SC 292]:
(1998) 3 SCC 540 [LNIND 1998 SC 292] at 546.
End of Document
[65.672] Whether right of appeal may be lost
(iii) Principles
26. APPEALS
C. Right of Appeal
(iii) Principles
[65.672] Whether right of appeal may be lost

A right of appeal being a substantive right, the institution of a suit carries with it the implication that all successive
appeals available under the law then in force will be preserved to the parties to the suit throughout the rest of the
career of the suit.
There are two exceptions to the application of this rule, that is: (1) when such right of appeal is taken away
expressly or impliedly, with retrospective effect, by a competent enactment; and (2) when the court to which the
appeal lay at the commencement of the suit, stands abolished1.
1 Colonial Sugar Refining Co Ltd v Irving, [1905] AC 369 , PC; Ramesh Singh v Cinta Devi, AIR 1996 SC 1560 :
(1996) 3 SCC 142 : (1996) 5 JT 543; Vitthalbhai Naranbhai Patel v Commissioner of Sales Tax, Madhya Pradesh,
Nagpur, AIR 1967 SC 344 [LNIND 1960 SC 492]: (1961) 12 STC 219; Mukund Deo (decd) represented by lrs, Kasibai
v Mahadu, AIR 1965 SC 703 [LNIND 1964 SC 363]; Lakshmi Narain v First Additional District Judge, Allahabad, AIR
1964 SC 489 [LNIND 1962 SC 437]: [164] 1 SCR 362; State of Bombay v Supreme General Films Exchange, AIR
1960 SC 980 [LNIND 1960 SC 136]: [1960] 3 SCR 640 [LNIND 1960 SC 136] : (1961) 1 SCJ 119; Garikapatti Veeraya
v N Subbiah Choudhry, AIR 1957 SC 540 [LNIND 1957 SC 10]: (1957) SCC 339 : [1957] SCR 488 [LNIND 1957 SC
10]; Daji Saheb v Shankar Rao Vithalrao Mane, AIR 1956 SC 29 [LNIND 1955 SC 76]: [1955] 2 SCR 872 [LNIND 1955
SC 76] : (1956) SCJ 70 [LNIND 1955 SC 76]; Hoosein Kasam Dada (India) Ltd v State of Madhya Pradesh, AIR 1953
SC 221 [LNIND 1953 SC 20]: [1953] SCR 987 [LNIND 1953 SC 20]. See also M Ramnarain (Pvt) Ltd v State Trading
Corp of India Ltd, AIR 1983 SC 786 [LNIND 1983 SC 143]: (1983) 3 SCC 75 [LNIND 1983 SC 143] : [1983] 3 SCR 25
[LNIND 1983 SC 143]; Jose da Costa v Bascora Sadashiva Sinai Narcornim, AIR 1976 SC 1825 [LNIND 1976 SC
162]: (1976) 3 SCC 766 [LNIND 1976 SC 162] : [1976] 3 SCR 1067 [LNIND 1976 SC 162]. As to the right of an
appellant to abandon or withdraw appeal see [65.673].
End of Document
[65.673] Right of appellant to abandon or withdraw appeal
(iii) Principles
26. APPEALS
C. Right of Appeal
(iii) Principles
[65.673] Right of appellant to abandon or withdraw appeal

The principles as to the abandonment of suits1, and the withdrawal of suits with the leave of the court2 and the filing
of a fresh suit also apply to applications for appeals3. The appellant or petitioner may unconditionally withdraw his
application for appeal and the court has no power to compel a party to proceed.
However, if any vested right comes into existence before the prayer for withdrawal is made, the court is not bound
to allow withdrawal as a matter of course; but this can happen only in very limited circumstances, that is, where a
preliminary decree had been passed or in those cases where a set-off has been claimed or a counter-claim has
been made4.
1 As to the abandonment of suits see [65.477].

2 As to the withdrawal of suits with the leave of the court see [65.478].
3 See the Code of Civil Procedure, 1908 section 107 (2), which provides that the appellate court, subject to section 107
(1) (see [65.721])), has the same powers and performs, as nearly as possible, the same duties as are conferred and
imposed by the Code on courts of original jurisdiction in respect of the suits instituted therein. The provisions of Pt VII
(sections 96–112) relating to appeals from original decrees apply, so far as may be, to appeals from appellate decrees,
and to appeals from orders made under the Code or under any special or local law in which a different procedure is not
provided: section 108. See also Bijayananda Patnaik v Satrughna Sabu, AIR 1963 SC 1566 [LNIND 1963 SC 80]:
[1964] 2 SCR 538 [LNIND 1963 SC 80] : (1963) 1 SCA 463.
4 Rama Murthy v Rajeshwararao, AIR 1973 SC 643 [LNIND 1972 SC 375]: [1973] 1 SCR 904 [LNIND 1972 SC 375];
Hulas Rai Baij Nath v Firm KB Bass & Co, AIR 1968 SC 111 [LNIND 1967 SC 179]: [1967] 3 SCR 886 [LNIND 1967
SC 179].
End of Document
[65.674] Forum
(iv) Procedure > (A) General
26. APPEALS
C. Right of Appeal
(iv) Procedure
(A) General
[65.674] Forum
There is no vested right in procedure. No one may claim that his appeal must be heard by a particular court or by a
particular judge or by a specified number of judges, as these are procedural matters1. A change in the forum of
appeal does not prejudice a party2.
As a general rule, the valuation put up by the plaintiff in the plaint determines the jurisdiction of the original court as
well as of the appellate court3. In determining the appellate forum, the value of the subject matter of the suit is
material and not the claim in appeal4.
1 Kiran Singh v Chaman Paswan, AIR 1954 SC 340 [LNIND 1954 SC 67]: [1955] 1 SCR 117 [LNIND 1954 SC 67] :
(1954) SCJ 514 [LNIND 1954 SC 67]; Stridewell Leathers (Pvt) Ltd v Bhankerpur Simbhaoli Beverages (Pvt) Ltd, AIR
1994 SC 158 : (1994) 1 SCC 34 : (1993) 5 JT 684; Gopalakrishna Pillai v Meenakshi Ayal, AIR 1967 SC 155 [LNIND
1966 SC 109]: [1966] Supp SCR 128; P Mohammed Meera Lebbai v Thirumalaya Grounder Ramaswamy Goundar,
AIR 1966 SC 430 [LNIND 1965 SC 200]: [1966] 1 SCR 567 : [1966] 1 SCR 574 [LNIND 1965 SC 200]; Ittyavira Mathai
v Varkey Varkey, AIR 1964 SC 907 [LNIND 1963 SC 4]: [1964] 1 SCR 495 [LNIND 1963 SC 4] : (1963) Ker LT 1133
[LNIND 1963 SC 4]; Custodian of Evacuee Property, Bangalore v Abdul Shukoor, AIR 1961 SC 1087 [LNIND 1961 SC
67]: [1961] 3 SCR 855 [LNIND 1961 SC 67]; Mohinder Singh Harnam Singh v Jagjit Singh S Sher Singh, AIR 1960
Punj 434; Garikapati Veeraya v N Subbiah Choudhry, AIR 1957 SC 540 [LNIND 1957 SC 10]: (1957) SCC 339 : [1957]
SCR 488 [LNIND 1957 SC 10]. As to the right to begin see [65.676].
2 Kiran Singh v Chaman Paswan, AIR 1954 SC 340 [LNIND 1954 SC 67]: [1955] SCR 117 [LNIND 1954 SC 67] : (1954)
SCJ 514 [LNIND 1954 SC 67].
3 Gopalkrishna v Meenakshi, AIR 1967 SC 155 [LNIND 1966 SC 109]: [1966] Supp SCR 128. As to the jurisdiction of
the court see [65.054] and following.
4 Gopalkrishna v Meenakshi, AIR 1967 SC 155 [LNIND 1966 SC 109]: [1966] Supp SCR 128; Municipal Committee,
Simla v Gurdial Singh, AIR 1973 HP 64 : (1972) 2 Simla LJ (HP) 435; Shivaji v Deoji, AIR 1974 MP 123 [LNIND 1972
Page 2 of 2
[65.674] Forum
MP 9]: (1973) Jab LJ 388 : (1973) MP LJ 434; Gopal Trimbakrao Chandwadkar v Chimabai Prabhakar Nagpurkar, AIR
1938 Bom 464 : 178 IC 116 : (1938) 40 Bom LR 1040.
End of Document
[65.675] Form of appeal
26. APPEALS
C. Right of Appeal
(iv) Procedure
(A) General
[65.675] Form of appeal

An appeal should be in the prescribed form1.
1 Code of Civil Procedure,1908 Sch I Appendix G Form 1.
End of Document
[65.676] Right to begin
26. APPEALS
C. Right of Appeal
(iv) Procedure
(A) General
[65.676] Right to begin

On the day fixed, or on any other day to which the hearing may be adjourned, the appellant must be heard in
support of the appeal1. The court must then, if it does not dismiss the appeal at once, hear the respondent against
the appeal and in such case the appellant is entitled to reply2.
1 Code of Civil Procedure, 1908 O XLI rule 16 (1). As to the principles of appeal see [65.666].
End of Document
[65.677] Appeal and memorandum of appeal
26. APPEALS
C. Right of Appeal
(iv) Procedure
(A) General

Every appeal must be preferred in the form of a memorandum signed by the appellant or his pleader and presented
to the court or to such officer as it appoints in this behalf. The memorandum must be accompanied by a copy of the
judgment1.
The expression “copy” means a certified copy2.
Where two or more suits have been tried together and a common judgment has been delivered therefor and two or
more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different
appellants, the appellate court may dispense with the filing of more than one copy of the judgment3.
The memorandum must set forth the grounds of objection to the decree appealed from without any argument or
narrative, concisely and under distinct heads, and such grounds must be numbered consecutively4.
Where the appeal is against a decree for the payment of money, the appellant must, within such time as the
appellate court may allow, deposit the amount disputed in the appeal or furnish such security in respect of it as the
court may think fit5.
The appellant may not, except by leave of the court, urge or be heard in support of any ground of objection not set
forth in the memorandum of appeal; but the appellate court, in deciding the appeal, is not confined to the grounds of
objection set forth in the memorandum of appeal or taken by leave of the court6. However, the court must not rest
its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of
contesting the case on that ground7.
Where the memorandum of appeal is not drawn up in the prescribed manner, it may be rejected or be returned to
the appellant for the purpose of being amended within a time to be fixed by the court or be amended then and
there8. Where the court rejects any memorandum, it must record the reasons for such rejection9. Where a
Page 2 of 2
memorandum of appeal is amended, the judge or such officer as he appoints in this behalf, must sign or initial the
amendment10.
When an appeal is presented after the expiry of the period of limitation specified for it, it must be accompanied by
an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the court that
he had sufficient cause for not preferring the appeal within such period11. If the court sees no reason to reject the
application without the issue of a notice to the respondent, notice thereof must be issued to the respondent and the
matter must be finally decided by the court before it proceeds to deal with the appeal12. Where such an application
has been made, the court may not make an order for the stay of execution of the decree against which the appeal is
proposed to be filed so long as the court does not after hearing the appellant13, decide to hear the appeal14.
Where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on
any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may
appeal from the whole decree and thereupon the appellate court may reverse or vary the decree in favour of all the
plaintiffs or defendants, as the case may be15.
1 Code of Civil Procedure, 1908 O XLI rule 1 (1) (as amended by the Code of Civil Procedure (Amendment) Act, 1999);
see also Uday Shankar v Ram Kailewar, AIR 2006 SC 269 [LNIND 2005 SC 893]: (2006) 1 SCC 75 [LNIND 2005 SC
893].
2 State of UP v VC Tobit, AIR 1958 SC 414 [LNIND 1958 SC 9]: 1958 SCR 1275 [LNIND 1958 SC 9]; Jagat Dhish v
Jawahar Lal, AIR 1961 SC 832 [LNIND 1960 SC 311]: (1961) 2 SCR 918 [LNIND 1960 SC 311].
3 Code of Civil Procedure, 1908 O XLI rule 1 (1) proviso; see also PA Oommen v MMB Marthoma, AIR 1992 SC 1977
[LNIND 1992 SC 438]: (1992) 3 SCC 503 [LNIND 1992 SC 438].
4 Code of Civil Procedure, 1908 O XLI rule 1 (2). See Lakshmiratan Engineering Works Ltd v Assistant Commissioner of
Sales Tax (Judiciary) I, Kanpur Range, Kanpur, Uttar Pradesh, AIR 1968 SC 488 [LNIND 1967 SC 265]at 492–493) :
[1968] 1 SCR 505 [LNIND 1967 SC 265]; Shyam Kishore v Municipal Corp, Delhi, AIR 1992 SC 2279 : (1993) 1 SCC
22 : (1992) 5 JT 335.
6 Code of Civil Procedure, 1908 O XLI rule 2.
7 Code of Civil Procedure, 1908 O XLI rule 2 proviso.
11 Code of Civil Procedure, 1908 O XLI rule 3A (1); see also the Law Commission of India, 14th Report pp 385–86, 27th
Report p 237; State of Madhya Pradesh v Pradeep Kumar, (2000) 7 SCC 372 [LNIND 2000 SC 1214].
12 Under the Code of Civil Procedure, 1908 O XLI rules 11–12, as the case may be: rule 3A (2).
13 Under the Code of Civil Procedure, 1908 O XLI rule 11: see [65.679].
14 Code of Civil Procedure, 1908 O XLI rule 3A (3).
15 Code of Civil Procedure, 1908 O XLI rule 4. See Sri Chand v Jagdish Pershad Kishan Chand, AIR 1966 SC 1427
[LNIND 1966 SC 40]: [1966] 3 SCR 451 [LNIND 1966 SC 40].
End of Document
[65.678] Presentation of appeal
26. APPEALS
C. Right of Appeal
(iv) Procedure
(A) General

The court from whose decree an appeal lies must entertain the memorandum of appeal and must indorse the date
of presentation on it and register the appeal in a book to be kept for that purpose1. Such book is called the register
of appeals2.
The appellate court may in its discretion, either before the respondent is called upon to appear and answer or
afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal or of
the original suit or of both3. The court must demand such security in all cases in which the appellant is residing out
of India and is not possessed of any sufficient immovable property within India other than the property, if any, to
which the appeal relates4. Where such security is not furnished within such time as the court orders, the court must
reject the appeal5.
The appellate court may in its discretion restore an appeal dismissed for failure to give security for costs6. An
application for restoration must be filed within thirty days from the date of dismissal of the appeal7.
1 Code of Civil Procedure, 1908 O XLI rule 9 (1) (as substituted by the Code of Civil Procedure (Amendment) Act, 2002).
As to the admission of appeal see [65.679].
2 Code of Civil Procedure, 1908 O XLI rule 9 (2) (as substituted by the Code of Civil Procedure (Amendment) Act, 2002).
4 Code of Civil Procedure, 1908 O XLI rule 10 (1) proviso.
6 Balwant Singh v Daulat Singh, (1886) ILR 8 All 315, PC; Mettu, Buggareddi v Doddi Kanaka Durgaiah Naidu, AIR 1962
AP 10 [LNIND 1961 AP 16]: (1962) ILR AP 82 : (1962) 2 Andh WR 432.
Page 2 of 2
7 Limitation Act, 1963 Schedule Article 122.
End of Document
[65.679] Admission of appeal
26. APPEALS
C. Right of Appeal
(iv) Procedure
(A) General

The appellate court, after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he
appears on that day, may dismiss the appeal1.
If, on the day fixed or any other day to which the hearing may be adjourned, the appellant does not appear when
the appeal is called on for hearing, the court may make an order that the appeal be dismissed2. The dismissal of an
appeal must be notified to the court whose decree the appeal is preferred3. Where an appellate court, not being the
High Court, dismisses an appeal, it must deliver a judgment, recording in brief its grounds for doing so, and a
decree must be drawn up in accordance with the judgment4.
Every appeal must be heard as expeditiously as possible and every endeavour must be made to conclude such
hearing within sixty days from the date on which the memorandum of appeal is filed5.
Unless the appellate court dismisses the appeal summarily or in limine, it must fix a day for hearing the appeal6.
Such day must be fixed with reference to the current business of the court7.
Notice of the day fixed must be affixed in the appellate court-house and a similar notice must be sent by the
appellate court to the court from whose decree the appeal is preferred and must be served on the respondent or on
his pleader in the appellate court in the manner provided for the service on a defendant of a summons to appear
and answer; and all the provisions applicable to such summons and to proceedings with reference to the service
thereof apply to the service of such notice8. Instead of sending the notice to the court from whose decree the appeal
is preferred, the appellate court may itself cause the notice to be served on the respondent or his pleader9.
The notice to be served on the respondent must be accompanied by a copy of the memorandum of appeal10. It is
not necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person
impleaded for the first time in the appellate court, unless he has appeared and filed an address for service in the
court of first instance or has appeared in the appeal11.
Page 2 of 2
1 Code of Civil Procedure, 1908 O XLI rule 11 (1) (as substituted by the Code of Civil Procedure (Amendment) Act,
1999). See further [65.690]. As to the procedure at the hearing see [65.685] and following.
5 Code of Civil Procedure, 1908 O XLI rule 11A.
2002).
10 Code of Civil Procedure, 1908 O XLI rule 14 (3). Nothing in O XLI rule 14 (4) bars the respondent referred to in the
appeal from defending it: O XLI rule 14 (5).
11 Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 O XLI rule 14 (1): O XLI rule
14 (4).
End of Document
[65.680] Stay by appellate court
26. APPEALS
C. Right of Appeal
(iv) Procedure
(A) General
[65.680] Stay by appellate court

An appeal does not operate as a stay of proceedings under a decree or order appealed from except so far as the
appellate court may order, nor may execution of a decree be stayed by reason only of an appeal having been
preferred from the decree; but the appellate court may for sufficient cause order the stay of execution of such
decree1.
An order for the stay of execution of the decree by the appellate court is effective from the date of the
communication of such order to the court of first instance, but an affidavit sworn by the appellant, based on his
personal knowledge, stating that an order for the stay of execution of the decree has been made by the appellate
court must, pending the receipt from the appellate court of the order for the stay of execution or any order to the
contrary, be acted upon by the court of first instance2.
1 Code of Civil Procedure, 1908 O XLI rule 5 (1). See Kamla Devi v Takhatmal, AIR 1964 SC 859 [LNIND 1963 SC 49]at
862 : [1964] 2 SCR 152 [LNIND 1963 SC 49]; Dilip Kumar Chaurasiya v Ramesh Chandra Sahu alias Bhaiji, (1991)
Supp 2 SCC 260; Mool Chand Yadav v Raza Buland Sugar Co Ltd, Rampur, (1982) 3 SCC 484; Atma Ram Properties
v Federal Motors, (2005) 1 SCC 705 [LNIND 2004 SC 1231] : [2004] Supp (6) SCR 843. As to the grant of a stay by the
court which passed the decree see [65.681].
2 Code of Civil Procedure, 1908 O XLI rule 5 (1) explanation; see also Mulraj v Murti Raghunathji Maharaj, AIR 1967 SC
1386 [LNIND 1967 SC 60]: [1967] 3 SCR 84 [LNIND 1967 SC 60].
End of Document
[65.681] Stay by court which passed the decree
26. APPEALS
C. Right of Appeal
(iv) Procedure
(A) General

Where an application is made for stay of execution of an appealable decree before the expiration of the time
allowed for appealing therefrom, the court which passed the decree may on sufficient cause being shown order the
execution to be stayed1.
No order for stay of execution may be made2 unless the court making it is satisfied:
(1) that substantial loss may result to the party applying for stay of execution unless the order is made3;
(2) that the application has been made without unreasonable delay4; and
(3) that security has been given by the applicant for the due performance of such decree or order as may
ultimately be binding upon him5.
The court may make an ex parte order for stay of execution pending the hearing of the application6.
Where the appellant fails to make the deposit or furnish the security7 the court may not make an order staying the
execution of the decree8.
These powers conferred on the court9 are exercisable where an appeal may be or has been preferred not from the
decree but from an order made in execution of such decree10.
1 Code of Civil Procedure, 1908 O XLI rule 5 (2). As to the grant of stay by court which passed the decree see [65.680].
2 Under the Code of Civil Procedure, 1908 O XLI rule 5 (1), (2).
Page 2 of 2
3 Code of Civil Procedure, 1908 O XLI rule 5 (3)(a); see also Nawab Sidheee Nuzar Ally Khan v Oojoodhyarm Khan,
(1865) 30 Moo IA 322 : 34 LPJC 1 : 19 ER 995.
4 Code of Civil Procedure, 1908 O XLI rule 5 (3)(b); see note 3.
5 Code of Civil Procedure, 1908 O XLI rule 5 (3)(c); see note 3; see also Atma Ram Properties v Federal Motors, (2005)
1 SCC 705 [LNIND 2004 SC 1231] : [2004] Supp (6) SCR 843.
6 Subject to the Code of Civil Procedure, 1908 O XLI rule 5 (3): O XLI rule 5 (4).
7 Ie the security specified in the Code of Civil Procedure, 1908 O XLI rule 1 (3); see [65.677].
8 Notwithstanding anything contained in the Code of Civil Procedure, 1908 O XLI rule 5 (1)–(4): O XLI rule 5 (5). See
Mehta Teja Singh & Co v Grindlays Bank Ltd, (1982) 3 SCC 199; Digambar v Sulabha, AIR 1986 Ori 38 [LNIND 1985
ORI 39]; Union Bank of India v Jagan Nath Rahey Shyam & Co, AIR 1979 Del 36 [LNIND 1978 DEL 49]: 81 Punj LR
(D) 50.
9 Ie by the Code of Civil Procedure, 1908 O XLI rule 5.
End of Document
[65.682] Security in case of order for execution of decree appealed from
26. APPEALS
C. Right of Appeal
(iv) Procedure
(A) General
[65.682] Security in case of order for execution of decree appealed from

Where an order is made for the execution of a decree from which an appeal is pending, the court which passed the
decree must, on sufficient cause being shown by the appellant, require security to be taken for the restitution of any
property which may be or has been taken in execution of the decree or for the payment of the value of such
property and for the due performance of the decree or order of the appellate court, or the appellate court may, for
like cause, direct the court which passed the decree to take such security1.
Where an order has been made for the sale of immovable property in execution of a decree and an appeal is
pending from such decree, the sale must, on the application of the judgment-debtor, to the court which made the
order, be stayed on such terms as to giving security or otherwise as the court thinks fit until the appeal is disposed
of2.
These powers conferred on the court3 are exercisable where an appeal may be or has been preferred not from the
decree but from an order made in execution of such decree4.
1 Code of Civil Procedure, 1908 O XLI rule 6 (1); see also Pratibha Singh v Shanti Devi, AIR 2003 SC 643 [LNIND 2002
SC 755]: (2003) 2 SCC 330 [LNIND 2002 SC 755]; see note 1.
3 Ie by the Code of Civil Procedure, 1908 O IV rule 6.
End of Document
[65.683] Limitation
26. APPEALS
C. Right of Appeal
(iv) Procedure
(A) General
[65.683] Limitation
The Code of Civil Procedure, 1908 does not prescribe the period of limitation for filing an appeal. The Limitation Act,
1963, however, provides such period. It enacts that an appeal against a decree or order can be filed in a High Court
within ninety days and in any other court within thirty days from the date of the decree or order appealed against1.
1 Limitation Act, 1963 Schedule Article 116; see also FN Roy v Collector of Customs, AIR 1957 SC 648 [LNIND 1957 SC
57]: [1957] SCR 1151 [LNIND 1957 SC 57] : 1957 Cr LJ 1026; As to the condonation of delay see [65.684].
End of Document
[65.684] Condonation of delay
26. APPEALS
C. Right of Appeal
(iv) Procedure
(A) General

Where an appeal has been presented after the period of limitation specified therefor1, it should be ccompanied by
an application that the applicant had sufficient cause for not preferring the appeal within time2.
The object of this provision is twofold; firstly, to inform the appellant that the appeal will not be entertained unless it
is accompanied by an application explaining the delay; and secondly, to communicate to the respondent that it may
not be necessary for him to prepare his case on the merits as the court has yet to deal with an application for
condonation of delay as a condition precedent to the appeal3.
The provision is, however, directory and not mandatory. If the memorandum of appeal is filed without being
accompanied by an application for condonation of delay, the consequence is not necessarily fatal; the defect is
curable4.
Earlier, the practice was to admit such an appeal subject to the objection regarding limitation. This practice was
disapproved by the Privy Council, which stressed the expediency of adopting a procedure for securing the final
determination of the question as to limitation before admission of the appeal5.
1 As to the period of limitation see [65.683].

2 Code of Civil Procedure, 1908 O XLI rule 3A. See [65.677].
3 State of Madhya Pradesh v Pradeep Kumar, (2000) 7 SCC 372 [LNIND 2000 SC 1214] : [2000] Supp (3) SCR 235.
4 State of Madhya Pradesh v Pradeep Kumar, (2000) 7 SCC 372 [LNIND 2000 SC 1214] : [2000] Supp (3) SCR 235.
5 Krishnasami v Ramasami Chettiar, AIR 1917 PC 179 : 45 IA 25 : (1918) 22 Cal WN 481.
Page 2 of 2
End of Document
[65.685] Copies of judgment and decree to be furnished to parties
(iv) Procedure > (B) Procedure at Hearing
26. APPEALS
C. Right of Appeal
(iv) Procedure
(B) Procedure at Hearing
[65.685] Copies of judgment and decree to be furnished to parties

Certified copies of the judgment and decree in appeal must be furnished to the parties on application to the
appellate court and at their expense1.
1 Code of Civil Procedure, 1908 O XLI rule 36. As to the pronouncement of judgment see [65.692].
End of Document
[65.686] Certified copy of decree to be sent to court whose decree appealed
from
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.686] Certified copy of decree to be sent to court whose decree appealed

from
A copy of the judgment and of the decree, certified by the appellate court or such officer as it appoints in this behalf,
must be sent to the court which passed the decree appealed from and be filed with the original proceedings in the
suit, and an entry of the judgment of the appellate court must be made in the register of civil suits1.
1 Code of Civil Procedure, 1908 O XLI rule 37. As to the furnishing of copies of judgment and decree to parties see
[65.685].
End of Document
[65.687] Determination of case finally
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.687] Determination of case finally

Where the evidence upon the record is sufficient to enable the appellate court to pronounce judgment, the appellate
court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of
the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on
which the appellate court proceeds1.
1 Code of Civil Procedure, 1908 O XLI rule 24. As to the findings and evidence to be put on record see [65.721].
End of Document
[65.688] Ex parte hearing and rehearing
26. APPEALS
C. Right of Appeal
(iv) Procedure

Where the appellant appears and the respondent does not appear, the appeal must be heard ex parte1. Where an
appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the appellate court
to rehear the appeal, and if he satisfies the court that the notice was not duly served or that he was prevented by
sufficient cause from appearing when the appeal was called on for hearing, the court must rehear the appeal on
such terms as to costs or otherwise as it thinks fit to impose upon him2.
Before a rehearing is ordered, the following conditions must be fulfilled:
(i) the appeal must have been decided ex-parte; and

(ii)
(a) notice should not have been duly served on the respondent; or
(b) respondent would have been prevented by sufficient cause from appearing when the appeal was
called out for hearing.
Ordinarily, no ex parte decree should be passed by a court except on reliable evidence3.
1 Code of Civil Procedure, 1908 O XLI rule 17 (2). As to dismissal for default and restoration and dismissal in limine see
[65.689]–[65.691].
Page 2 of 2
2 Code of Civil Procedure, 1908 O XLI rule 21. See Savithri Amma v Aratha Karthy, AIR 1983 SC 318 : (1983) 1 SCC
401; Sourindra v State of West Bengal, AIR 1982 SC 1193 : (1982) 2 SCC 360.
3 Sudha Devi v MP Narayanan, AIR 1988 SC 1381 [LNIND 1988 SC 256]: (1988) 3 SCC 366 [LNIND 1988 SC 256] :
[1988] 3 SCR 756 [LNIND 1988 SC 256].
End of Document
[65.689] Dismissal for default
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.689] Dismissal for default

Where, on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear
when the appeal is called on for hearing, the court may make an order that the appeal be dismissed1.
1 Code of Civil Procedure, 1908 O XLI rule 17 (1). Nothing in this rule is to be construed as empowering the court to
dismiss the appeal on the merits: O XLI rule 17 (1) explanation. See New Brahma Kshatriya Co-op Housing Society Ltd
v Govindlal Narbheram Thakore, AIR 1975 Guj 173 [LNIND 1974 GUJ 50]: (1974) 15 Guj LR 689. As to dismissal in
limine see [65.690].
End of Document
[65.690] Dismissal in limine
26. APPEALS
C. Right of Appeal
(iv) Procedure

An appellate court may dismiss an appeal summarily1. After the memorandum of appeal has been filed and the
appeal has been registered, the court will hear the appeal for admission. The court may dismiss the appeal in limine
if there is no prima facie substance in it2.
However, the discretion must be exercised judiciously and not arbitrarily. Such power should be used very sparingly
and only in exceptional cases. When an appeal raises triable issues, it should not be dismissed in limine3. Where
the appellate court which dismisses an appeal summarily is other than a High Court, it must record its reasons for
doing so4. Ordinarily, however, even a High Court must record its reasons5. When the first appellate court affirms
the findings of the trial court, it should record its reasons in brief for doing so. It is all the more necessary in a case
where such court is a final court of fact and where the judgment of the trial court is based on appreciation of
evidence which is seriously challenged by the contesting party6.
If the appellant or his pleader does not appear when the appeal is called on for hearing, the court may dismiss it for
default7; but the court has a discretion in the matter and is not bound to dismiss the appeal for default of
appearance. It may admit the appeal or adjourn the hearing of the appeal to a future date. Where an appeal is
dismissed for default, but not on merits8. Where an appeal is dismissed for default and it is proved that the appellant
was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court may restore
the appeal9.
1 See the Code of Civil Procedure, 1908 O XLI rule 11; and [65.679]. As to dismissal for default and restoration see
[65.689], [65.691].
1999).
Page 2 of 2
3 Mahadev Tukaram Vetale v Sugandha, AIR 1972 SC 1932 : (1973) 3 SCC 746 : (1972) UJ 796; Kiranmal Zumeralal
Borana Marwadi v Dnyanoba Bajirao Khot, AIR 1983 SC 461 : (1983) 4 SCC 223 : (1983) UJ 408; Vinod Trading Co v
UOI, (1982) 2 SCC 40; Umakant Vishnu Junnarkar v Parashuram Damodar Vaidya, AIR 1973 SC 218 : (1973) 1 SCC
152 : (1973) UJ 437.
4 Code of Civil Procedure, 1908 O XLI rule 11 (4). See Govinda Kadtuji Kadam v State of Madhya Pradesh, AIR 1970 SC
1033 [LNIND 1970 SC 38]: (1970) 1 SCC 469 [LNIND 1970 SC 38].
5 Shankar Gopinath Apte v Gangabai Hariharrao Patwardhan, AIR 1976 SC 2506 [LNIND 1976 SC 300](2509) : (1976)
4 SCC 112 [LNIND 1976 SC 300] at 115 : [1977] 1 SCR 411 [LNIND 1976 SC 300].
6 Kerala Transport Co v Shah Manilal Mulchand, (1991) Supp 2 SCC 461 at 462.
7 See [65.654].
8 Code of Civil Procedure, 1908 O XLI rule 17 (1) explanation, rule 11 (2). See Sukhpal Singh v Kalyan Singh, AIR 1963
SC 146 [LNIND 1962 SC 211]: [1963] 2 SCR 733 [LNIND 1962 SC 211].
End of Document
[65.691] Restoration of appeal
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.691] Restoration of appeal

Where an appeal is dismissed1, the appellant may apply to the appellate court for the re-admission of the appeal,
and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called
on for hearing or from depositing the sum so required, the court must re-admit the appeal on such terms as to costs
or otherwise as it thinks fit2.
1 Under the Code of Civil Procedure, 1908 O XLI rule 11 (2) (see [65.690]) or rule 17 (see [65.689]).
2 Code of Civil Procedure, 1908 O XLI rule 19. See Rafiq v Munshilal, AIR 1981 SC 1400 [LNIND 1981 SC 240]: (1981)
2 SCC 788 [LNIND 1981 SC 240] : [1981] 3 SCR 509 [LNIND 1981 SC 240]; Mangilal v State of Madhya Pradesh,
(1994) 4 SCC 564 [LNIND 1994 SC 450] : [1994] 3 SCR 774 [LNIND 1994 SC 450]; Lachi Tewari v Director of Land
Records, AIR 1984 SC 41 : (1984) Supp SCC 431 : (1983) 2 Scale 1016; Goswami Krishna Murarilal Sharma v Dhan
Prakash, (1981) 4 SCC 574; Savithri Amma Seethamma v Aratha Karthy, AIR 1983 SC 318 : (1983) 1 SCC 401 :
(1983) 1 Scale 706.
End of Document
[65.692] Pronouncing of judgment
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.692] Pronouncing of judgment

The appellate court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether
on appeal or in the court from whose decree the appeal is preferred, to which reference may be considered
necessary, must pronounce judgment in open court, either at once or on some future day of which notice must be
given to the parties or their pleaders1.
Where a written judgment is to be pronounced, it is sufficient if the points for determination, the decision thereon
and the final order passed in the appeal are read out and it is not necessary for the court to read out the whole
judgment, but a copy of the whole judgment must be made available for the perusal of the parties or their pleaders
immediately after the judgment is pronounced2.
1 Code of Civil Procedure, 1908 O XLI rule 30 (1). As to what the judgment may direct see [65.693].
End of Document
[65.693] What judgment may direct
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.693] What judgment may direct

The judgment on appeal may be for confirming, varying or reversing the decree from which the appeal is preferred,
or, if the parties to the appeal agree as to the form which the decree in appeal must take, or as to the order to be
made in appeal, the appellate court may pass a decree or make an order accordingly1.
1 Code of Civil Procedure, 1908 O XLI rule 32. As to the pronouncing of judgment see [65.692].
End of Document
[65.694] Dissent to be recorded
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.694] Dissent to be recorded

Where the appeal is heard by more judges than one, any judge dissenting from the judgment of the court must
state, in writing, the decision or order which he thinks should be passed on the appeal, and he may state his
reasons for it1.
1 Code of Civil Procedure, 1908 O XLI rule 34. As to the pronouncing of judgment see [65.692].
End of Document
[65.695] Contents, date and signature of judgment
26. APPEALS
C. Right of Appeal
(iv) Procedure

The judgment of the appellate court must be in writing and must state:
(1) the points for determination1;
(2) the decision thereon2;
(3) the reasons for the decision3; and

(4) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled4.
It must at the time that it is pronounced be signed and dated by the judge or by the judges concurring in it5.
The decree of the appellate court must bear the date of the day on which the judgment was pronounced6. The
decree must contain the number of the appeal, the names and descriptions of the appellant and respondent and a
clear specification of the relief granted or other adjudication made7. The decree must also state the amount of costs
incurred in the appeal and by whom or out of what property and in what proportions such costs and the costs in the
suit are to be paid8. The decree must be signed and dated by the judge or judges who passed it9. Where there are
more judges than one and there is a difference of opinion among them, it is not necessary for any judge dissenting
from the judgment of the court to sign the decree10.
1 Code of Civil Procedure, 1908 O XLI rule 31 (a). As to the pronouncement of judgment and recording of dissent see
[65.692], [65.694].
2 Code of Civil Procedure, 1908 O XLI rule 31 (b).
3 Code of Civil Procedure, 1908 O XLI rule 31 (c).
Page 2 of 2
4 Code of Civil Procedure, 1908 O XLI rule 31 (d).

10 Code of Civil Procedure, 1908 O XLI rule 35 (4) proviso. As to dissenting judgments see [65.694].
End of Document
[65.696] Appeals against judgment
(iv) Procedure > (C) Appeal
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.696] Appeals against judgment

The Code of Civil Procedure, 1908 provides for an appeal from a decree and not from a judgment1. However, an
aggrieved party may file an appeal against a judgment if no decree has been drawn by the court2.
Where any party aggrieved by a preliminary decree passed after the commencement of the Code of Civil
Procedure, 1908 does not appeal from such decree, he is precluded from disputing its correctness in any appeal
which may be preferred from the final decree.
1 See [65.656]. As to appeals without decree see [65.698].

2 Jagat Dhish Bhargava v Jawahar Lal Bhargava, AIR 1961 SC 832 [LNIND 1960 SC 311]: [1961] 2 SCR 918 [LNIND
1960 SC 311]. See also the Code of Civil Procedure, 1908 O XX rule 6A (see [65.536]).
4 Code of Civil Procedure, 1908 section 97. See Phoolchand v Gopal Lal, AIR 1967 SC 1470 [LNIND 1967 SC 69]:
[1967] 3 SCR 153 [LNIND 1967 SC 69] : (1967) 2 SCWR 225 [LNIND 1967 SC 69].
End of Document
[65.697] Appeals against finding
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.697] Appeals against finding

No appeal lies against a mere finding. Hence, where a judgment, decree or order is not against a party, he cannot
file an appeal against a finding recorded against him1. In such cases, however, he can lodge cross-objections if the
opposite party files an appeal2.
1 Ganga Bai v Vijay Kumar, AIR 1974 SC 1126 [LNIND 1974 SC 142]: (1974) 2 SCC 393 [LNIND 1974 SC 142]; Deva
Ram v Ishwar Chand, (1995) 6 SCC 733 [LNIND 1995 SC 992]; Banarsi v Ram Phal, AIR 2003 SC 1989 [LNIND 2003
SC 207]: (2003) 9 SCC 606 [LNIND 2003 SC 207].
2 See [65.714].
End of Document
[65.698] Appeals without decree
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.698] Appeals without decree

An appeal lies against a decree and not against a judgment1. The Code of Civil Procedure requires that a
memorandum of appeal be accompanied by a certified copy of the judgement2. The requirement that the decree
must be filed along with the memorandum of appeal was mandatory and in the absence of the decree, the filing of
the appeal was held incomplete, defective and incompetent3. However, inasmuch as the drawing up of a decree
was essentially the function of the court and its office, a party could not be penalised for the default of the registry,
and where, in spite of an application by a party, the decree was not drawn, he would not suffer4. Where the decree
was not drawn, the aggrieved party can prefer an appeal without a decree5. However, now the memorandum of
appeal requires to be accompanied by a certified copy of the judgment. The decree is no more necessary6.
1 See [65.656].
2 Code of Civil Procedure, 1908 O XLI rule 1 as amended by the Code of Civil Procedure (Amendment) Act, 2002.(see
[65.674]). See Jagat Dhish Bhargava v Jawahar Lal Bhargava, AIR 1961 SC 832 [LNIND 1960 SC 311]: [1961] 2 SCR
918 [LNIND 1960 SC 311].
3 Jagat Dhish Bhargava v Jawahar Lal Bhargava, AIR 1961 SC 832 [LNIND 1960 SC 311]at 834 : [1961] 2 SCR 918
[LNIND 1960 SC 311].
4 See note 3 above.
5 Code of Civil Procedure, 1908 O XX rule 6A; see [65.536].
6 See note 1.
End of Document
[65.699] Appeals by one plaintiff against co-plaintiff
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.699] Appeals by one plaintiff against co-plaintiff

Normally, a plaintiff cannot file an appeal against another plaintiff. However, where the matter in controversy in the
suit forms a subject matter of dispute not only between the plaintiff and defendant but also between the plaintiffs
inter se, an appeal may be filed by one plaintiff against another plaintiff1.
1 BOI v Mehta Bros, AIR 1991 Del 194 [LNIND 2008 SC 1900]; Vithu v Bhima, (1891) ILR 15 Bom 145; Bhagirathibai v
Bhaya, (1880) ILR 5 Bom 264 : (1913) 16 Oudh Cas 350 (FB). As to appeals by one defendant against a co-defendant
see [65.700].
End of Document
[65.700] Appeals by one defendant against co-defendant
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.700] Appeals by one defendant against co-defendant

The principle which applies to the filing of an appeal by one plaintiff against another plaintiff1 applies to an appeal by
one defendant against another defendant. Ordinarily, no appeal may be filed by one defendant against a co-
defendant, but where the dispute is not only between the plaintiffs and defendants but between the defendants inter
se and the decision adversely affects one defendant against the other, such appeal will be competent2.
1 See [65.699].
2 Nirmala Bala Ghose v Balai Chand Ghose, AIR 1965 SC 1874 [LNIND 1965 SC 108]: [1965] 3 SCR 550 [LNIND 1965
SC 108].
End of Document
[65.701] Appeals against dead person
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.701] Appeals against dead person

Where an appeal is filed against a dead person, there is no valid institution of appeal. It may be regarded as still-
born appeal and cannot be said to be an appeal in the eye of law1. In such a case, however, an application for
substitution of the legal heirs of the deceased respondent, who died prior to the institution of the appeal, may be
made by the appellant2. In that case3, the appeal may be taken to have been instituted on the date of such
application. If, by that time, the appeal is barred by time, the appellant may seek condonation of delay by invoking
the provisions of the Limitation Act, 19634.
1 Bank of Commerce Ltd, Khulna v Protab Chandra Ghose, AIR 1946 FC 13 : 223 IC 626 : (1946) FCR 32; Prempiari v
Dukhi, AIR 1976 All 444; Ramprasad Dagduram v Vijaykumar Motilal Hirakhanwala, AIR 1967 SC 278 [LNIND 1966
SC 119]: [1966] Supp SCR 188.
2 See [65.254] and following.
3 Karuppaswamy v C Ramamurthy, AIR 1993 SC 2324 : (1993) 4 SCC 41 : (1993) 4 JT (SC) 192; M Veerappa v Evelyn
Sequeria, AIR 1988 SC 506 [LNIND 1988 SC 22]: (1988) 1 SCC 556 [LNIND 1988 SC 22] : [1988] 2 SCR 606 [LNIND
1988 SC 22]; N Jayaram Reddi v Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 SC 1393
[LNIND 1979 SC 210]: (1979) 3 SCC 578 [LNIND 1979 SC 210] : [1979] 3 SCR 599 [LNIND 1979 SC 210]; Melepurath
Sankunni Ezuthassan v Thekittil Geopalankutty Nair, AIR 1986 SC 411 [LNIND 1985 SC 354]: (1986) 1 SCC 118
[LNIND 1985 SC 354] : [1985] Supp 3 SCR 805.
4 See note 3 above; and [65.684].
End of Document
[65.702] Appeals by minor
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.702] Appeals by minor

If the appellant is a minor, he must be represented by his next friend1. However, when he attains majority, the next
friend becomes functus officio. The former minor who has become a major must elect whether he intends to
proceed with the appeal or not. If he proceeds with the matter, the record must be accordingly amended by showing
him as appellant and he is entitled or liable in the appeal. If he elects not to proceed further, he may apply for the
dismissal of the appeal subject to the payment of the costs of the respondent and also of his next friend. The
respondent is thereby placed in the same position as if the appellant had never been a minor2. No decree may be
reversed or substantially varied, nor may 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 court3.
1 See the Code of Civil Procedure, 1908 O XXXII rules 1, 2; and [65.616]. As to suits by minors generally see [65.616].
2 Code of Civil Procedure, 1908 O XXXII rules 12, 13; see [65.622]. See also Ratanchand Dhulaji v Jasraj Kasturchand,
AIR 1940 Bom 58 : (1940) ILR Bom 135 : 186 IC 597; Champak Vashram v Dharamsi Pola of Rajkot, AIR 1984 Guj 18
[LNIND 1983 GUJ 79]: (1983) Guj LH 801 : (1984) 1 Civ LJ 103.
3 Code of Civil Procedure, 1908 section 99; see [65.232] and following. Nothing in section 99 applies to non-joinder of a
necessary party: section 99 proviso. See Dharamshi Polabhai v Champaklal Vashram, AIR 1983 Guj 217 [LNIND 1983
GUJ 133]: (1983) 2 Guj LR 1280 : (1983) Guj LH 885.
End of Document
[65.703] Appeals against ex parte decrees
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal

An appeal may lie from an original decree passed ex parte1.
In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the
decree was passed for an order to set it aside, and if he satisfies the court that the summons was not duly served or
that he was prevented, by any sufficient cause, from appearing when the suit was called on for hearing, the court
must make an order setting aside the decree as against him upon such terms as to costs, payment into court or
otherwise as it thinks fit, and must appoint a day for proceeding with the suit2.
Where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside
as against all or any of the other defendants also3.
No court may set aside a decree passed ex parte merely on the ground that there has been an irregularity in the
service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to
appear and answer the plaintiff’s claim4.
Where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any
ground other than the ground that the appellant has withdrawn the appeal, no application lies for setting aside that
ex parte decree5.
1 Code of Civil Procedure, 1908 section 96 (2). As to the meaning of “ex parte decree” see [65.125]. As to appeals
against consent decrees see [65.704].
2 Code of Civil Procedure, 1908 O IX rule 13.
3 Code of Civil Procedure, 1908 O IX rule 13 proviso 1.
Page 2 of 2
4 Code of Civil Procedure, 1908 O IX rule 13 proviso 2.

5 Code of Civil Procedure, 1908 O IX rule 13 explanation.
End of Document
[65.704] Appeals against consent decree
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal

No appeal lies from a decree passed by the court with the consent of the parties1.
This provision is based on the broad principle of estoppel2. It is open to the parties to a suit to waive their right of
appeal by a lawful agreement, compromise or conduct. The consideration for such agreement is that both sides
give up their right of appeal. As soon as the court accepts the compromise between the parties, and acts upon it
and passes a decree in terms thereof, the compromise, to the extent of the matter covered by it, is complete and
binding. The decree becomes final, absolute, executable and enforceable.
The parties may, in order to avoid unnecessary expense and trouble enter into an agreement or compromise. There
is nothing wrong for the court to act upon such agreement and pass a decree in terms thereof. In case of a partial
compromise or adjustment of a suit, the decree is binding upon the parties to that extent3.
The bar on appeal, however, applies to cases of admitted or undisputed agreement, compromise or adjustment.
Where the factum of compromise is itself in dispute or challenged on the ground that no such agreement has been
arrived at or there was no valid consent, the bar does not operate. There may be cases where compromise might
have been obtained by one party by practising fraud, undue influence or misrepresentation upon the other side or
upon the court. There may also be a mistake on the part of the court in recording such compromise. In such cases,
the compromise does not bind the parties4.
1 Code of Civil Procedure, 1908 section 96 (3). As to the meaning of “consent decree” see [65.127]. As to appeals
against ex parte decrees see [65.703].
2 As to estoppel see generally [140] estoppel.
Page 2 of 2
3 KC Dora v G Annamanaidu, AIR 1974 SC 1069 [LNIND 1973 SC 388]: (1974) 1 SCC 567 [LNIND 1973 SC 388] :
[1974] 2 SCR 655 [LNIND 1973 SC 388]; Banwari Lal v Chando Devi by lrs, AIR 1993 SC 1139 : (1993) 1 SCJ 34 :
(1993) 1 SCC 581; Thakur Prasad v Bhagwan Das, AIR 1985 MP 171 [LNIND 1984 MP 85]: 1985 MPLJ 149 [LNIND
1984 MP 85].
4 KC Dora v G Annamanaidu, AIR 1974 SC 1069 [LNIND 1973 SC 388]: (1974) 1 SCC 567 at 584–588 : [1974] 2 SCR
655 [LNIND 1973 SC 388].
End of Document
[65.705] Appeals in petty cases
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.705] Appeals in petty cases

The Code of Civil Procedure, 1908 bars appeals except on points of law in certain cases. No appeal lies, 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 rupees ten thousand1.
1 Code of Civil Procedure, 1908 section 96 (4) (as amended by the Code of Civil Procedure (Amendment) Act, 1999).
The Code of Civil Procedure, 1908 section 96 (1) allows a first appeal against every decree. There is, however, a
restriction in the Presidency Small Cause Courts Act, 1882 and in the Provincial Small Cause Courts Act, 1887 with
regard to appeals against the decrees passed by courts of small causes. There is no appeal on the facts from decrees
passed in petty suits where the amount or value of the subject matter of the original suit does not exceed Rs 10,000. As
to the Provincial and Presidency small cause courts see [65.204], [65.206].
End of Document
[65.706] Infructuous appeals
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.706] Infructuous appeals

An appeal valid at the time of its institution may become infructuous at a subsequent stage. In such cases, it has to
be disposed of as infructuous. For instance, during the pendency of an appeal against a decree for the restitution of
conjugal rights, if a suit or petition by one of the parties for divorce is granted, the decree or order for restitution of
conjugal rights does not survive and consequently an appeal against the decree or order becomes infructuous1.
1 Sudarsan v Shree Prem Kumar Sarna, AIR 1967 Pat 4. As to the withdrawal of incompetent appeals see [65.707].
End of Document
[65.707] Withdrawal of incompetent appeals
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.707] Withdrawal of incompetent appeals

An incompetent appeal cannot be said to be an appeal in the eye of the law. The withdrawal of such an appeal,
therefore, cannot stand in the way of the appellant instituting a proper appeal, if the right to appeal is not otherwise
lost for any valid reason1. The expression “appeal” is not restricted to only one appeal. Hence, if an appeal is
dismissed for default, a fresh appeal will not be incompetent if brought within the period of limitation2.
1 M Ramnarain (Pvt) Ltd v State Trading Corp of India, AIR 1983 SC 786 [LNIND 1983 SC 143]at 800– 801 : (1983) 3
SCC 75 [LNIND 1983 SC 143] at 99 : [1983] 3 SCR 25 [LNIND 1983 SC 143]. As to infructuous appeals see [65.706].
2 Surajdeo Narain Singh v Partap Rai, AIR 1923 Pat 514 : 75 IC 284 : (1923) 4 Pat LT 405; Abeda Khatun v Majubali
Chowdhury, AIR 1921 Cal 455 : (1921) ILR 48 Cal 157 : 59 IC 760.
End of Document
[65.708] Decision in time barred appeals
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.708] Decision in time barred appeals

Once the court has jurisdiction over a subject matter, the decision rendered by it cannot be regarded as a nullity or
without jurisdiction on the ground that the appeal was time-barred1. An appeal presented out of time is an appeal
and an order dismissing it as time-barred is one passed in appeal2.
1 Ittavira Mathai v Varkey Varkey, AIR 1964 SC 907 [LNIND 1963 SC 4]: [1964] 1 SCR 495 [LNIND 1963 SC 4] : (1963)
Ker LT 1133 [LNIND 1963 SC 4]; Official Trustee, West Bengal v Sachindra Nath Chatterjee, AIR 1969 SC 823
[LNIND 1968 SC 373]: [1969] 3 SCR 92 [LNIND 1968 SC 373] : (1969) 2 SCJ 123 (FB); Mela Ram & Sons v CIT,
Punjab, AIR 1956 SC 367 [LNIND 1956 SC 20]: [1956] SCR 166 [LNIND 1956 SC 20] : (1956) SCJ 374 [LNIND 1956
SC 20]. As to execution proceedings and subsequent events see [65.710]–[65.711].
2 Mela Ram & Sons v CIT, Punjab, AIR 1956 SC 367 [LNIND 1956 SC 20]: [1956] SCR 166 [LNIND 1956 SC 20] :
(1956) SCJ 374 [LNIND 1956 SC 20].
End of Document
[65.709] Valuation in appeals
26. APPEALS
C. Right of Appeal
(iv) Procedure
(C) Appeal
[65.709] Valuation in appeals

For the purposes of the jurisdiction of the court1, the appellant has to put down the valuation in appeal. Such
computation may be the same for jurisdiction as for court fees, for instance an appeal for recovery of an amount
due. However, it may differ also, as in appeals in suits for partition, pre-emption or the redemption of a mortgage. In
these cases, the original valuation of the suit will determine the forum of appeal and the court fees2.
1 As to jurisdiction see [65.054] and following.

2 M Ramnarain (Pvt) Ltd v State Trading Corp of India, AIR 1983 SC 786 [LNIND 1983 SC 143]: (1983) 3 SCC 75
[LNIND 1983 SC 143] : [1983] 3 SCR 25 [LNIND 1983 SC 143].
End of Document
[65.710] Execution proceedings
(iv) Procedure > (D) Execution Proceedings, Subsequent Events and Alternative Reliefs
26. APPEALS
C. Right of Appeal
(iv) Procedure
(D) Execution Proceedings, Subsequent Events and Alternative Reliefs
[65.710] Execution proceedings

The statutory provisions relating to appeals do not apply to execution proceedings1. An order passed by an
executing court cannot be said to be a “decree” and hence is not appealable2. Similarly, an execution application is
not a continuation of a suit. The right to execute a decree accrues to a litigant on the date of filing of the execution
application and not before. Similarly, the right of appeal against an order passed in execution arises on the date of
institution of the execution proceedings3. Where such an order amounts to a decree or a deemed decree, an appeal
lies against it4.
1 As to execution proceedings generally see [65.886].

2 As to decrees generally see [65.009].
3 Pratap Narain Agarwal v Ram Narain Agarwal, AIR 1980 All 42 [LNIND 1979 SC 364](FB) : (1979) All LJ 1335 (FB).
4 See the Code of Civil Procedure, 1908 O XXI rules 43A (2)(c), 46B, 46C, 46E, 46H, 58 (4), 98, 100, 103 (see [65.886]
and following).
End of Document
[65.711] Subsequent events
26. APPEALS
C. Right of Appeal
(iv) Procedure

Normally, the rights of the parties to a suit must be determined on the basis of the cause of action disclosed in the
plaint1. In appropriate cases, however, in order to do full and complete justice to the parties, an appellate court may
take into account facts and events happening or coming into existence after the decision appealed against and
mould the relief accordingly2.
1 Pasupuleti Venkateswarlu v Motor and General Traders, AIR 1975 SC 1409 [LNIND 1975 SC 120]: (1975) 1 SCC 770
[LNIND 1975 SC 120] : [1975] 3 SCR 958 [LNIND 1975 SC 120]; Mithilesh Kumari v Prem Bihari Khare, AIR 1989 SC
1247 [LNIND 1989 SC 96]: (1989) 2 SCC 95 [LNIND 1989 SC 96] : (1989) 1 JT 275 [LNIND 1989 SC 96]; Nand
Kishore Marwah v Samundri Devi, AIR 1987 SC 2284 [LNIND 1987 SC 654]: (1987) 4 SCC 382 [LNIND 1987 SC 654]
: [1988] 1 SCR 158 [LNIND 1987 SC 654]; Vineet Kumar v Mangal Sain Wadhera, AIR 1985 SC 817 [LNIND 1984 SC
7]at 820 : (1984) 3 SCC 352 [LNIND 1984 SC 7] at 359–360 : [1984] 2 SCR 333 [LNIND 1984 SC 7]; Kanaya Ram v
Rajender Kumar, AIR 1985 SC 371 at 374–375 : (1985) 1 SCC 436 at 440–441 : (1984) 2 Scale 1039; Satish Chand
Makhan v Govardhan Das Byas, AIR 1984 SC 143 at 145 : (1984) 1 SCC 369 [LNIND 1989 SC 384] at 373–374 :
(1984) 1 Ren LR 574; Ramji Dayawala & Sons (Pvt) Ltd v Invest Import, AIR 1981 SC 2085 [LNIND 1980 SC 422]:
(1981) 1 SCC 80 [LNIND 1980 SC 422] : [1981] 1 SCR 899 [LNIND 1980 SC 422]; Rameshwar v Jot Ram, AIR 1976
SC 49 [LNIND 1975 SC 348]at 52 : (1976) 1 SCC 194 [LNIND 1975 SC 348] at 199–200 : [1976] 1 SCR 847 [LNIND
1975 SC 348]; Sri Mahalinga Thambiran Swamigal v Sri La Sri Kasivasi Arulnandi Thambiran Swamigal, AIR 1974 SC
199 [LNIND 1973 SC 315]at 209 : (1974) 1 SCC 150 [LNIND 1973 SC 315] at 166–67 : [1974] 2 SCR 74 [LNIND 1973
SC 315]; Nair Service Society Ltd v K C Alexander, AIR 1965 SC 1165 [LNIND 1954 SC 52]: [1968] 3 SCR 163
[LNIND 1968 SC 41]; Dayawati v Inderjit, AIR 1966 SC 1423 [LNIND 1966 SC 15]: [1966] 3 SCR 275 [LNIND 1966 SC
15] : (1966) 2 SCJ 784 [LNIND 1966 SC 15]; Mohanlal Jain v Maharaja Shri Sawai Man Singhji, Ex-Ruler of Jaipur, AIR
1962 SC 73 [LNIND 1961 SC 84]: [1962] 1 SCR 702 [LNIND 1961 SC 84] : (1962) 1 SCJ 104 [LNIND 1961 SC 84];
Shyabuddinsab Mohindisab Akki v Gadag-Betgiri Municipal Borough, AIR 1955 SC 314 [LNIND 1955 SC 13]: [1955] 1
SCR 1268 [LNIND 1955 SC 13] : (1955) SCJ 316 [LNIND 1955 SC 13]; Lachmeshwar Prasad Shukul v Keshwar Lal
Chaudhuri, AIR 1941 FC 5 : (1940) FCR 84. Jai Mangal Oraon v Mira Nayak, (2000) 5 SCC 141 [LNIND 2000 SC 836];
Lekh Raj v Munni Lal, AIR 2001 SC 996 [LNIND 2001 SC 327]: (2001) 2 SCC 762 [LNIND 2001 SC 327]; Om Prakash
v Ranbir Goyal, AIR 2002 SC 665 [LNIND 2002 SC 47]: (2002) 2 SCC 256 [LNIND 2002 SC 47]; Rajesh Darbar v
Page 2 of 2
Narsingrao Krishnaji, (2003) 7 SCC 219 [LNIND 2003 SC 641]. As to cause of action and jurisdiction of a court see
[65.077]
2 Shikharchand Jain v Digamber Jain Praband Karini Sabha, AIR 1974 SC 1178 [LNIND 1974 SC 8]: (1974) 1 SCC 675
[LNIND 1974 SC 8] : [1974] 3 SCR 101 [LNIND 1974 SC 8]; Ramesh Kumar v Kesho Ram, AIR 1992 SC 700 : (1992)
Supp 2 SCC 623; Gulabbai v Nalin Narsi Vohra, AIR 1991 SC 1760 [LNIND 1991 SC 298]: (1991) 3 SCC 483 [LNIND
1991 SC 298]; Amarjit Singh v Khatoon Quamarain, AIR 1987 SC 741 [LNIND 1986 SC 458]: (1986) 4 SCC 736
[LNIND 1986 SC 458] at 743 : [1987] 1 SCR 275 [LNIND 1986 SC 458]; Chandavarkar Sita Ratna Rao v Ashalata S
Guram, AIR 1987 SC 117 : (1986) 4 SCC 447 : [1986] 3 SCR 866; Variety Emporium v V R M Mohd Ibrahim Naina,
AIR 1985 SC 207 : (1985) 1 SCC 251 : [1985] 2 SCR 102; Hasmat Rai v Raghunath Prasad, AIR 1981 SC 1711
[LNIND 1981 SC 260]: (1981) 3 SCC 103 [LNIND 1981 SC 260] : [1981] 3 SCR 605 [LNIND 1981 SC 260]; Pasupuleti
Venkateswarlu v Motor and General Traders, AIR 1975 SC 1409 [LNIND 1975 SC 120]: (1975) 1 SCC 770 [LNIND
1975 SC 120] : [1975] 3 SCR 958 [LNIND 1975 SC 120]; Rameshwar v Jot Ram, AIR 1976 SC 49 [LNIND 1975 SC
348]at 52 : (1976) 1 SCC 194 [LNIND 1975 SC 348] at 199–200 : [1976] 1 SCR 847 [LNIND 1975 SC 348]; M Laxmi &
Co v Dr Anant R Deshpande, AIR 1973 SC 171 [LNIND 1972 SC 428]at 177 : (1973) 1 SCC 37 [LNIND 1972 SC 428]
at 45 : [1973] 2 SCR 172 [LNIND 1972 SC 428]; Vineet Kumar v Mangal Sain Wadhera, AIR 1985 SC 817 [LNIND
1984 SC 7]at 820 : (1984) 3 SCC 352 [LNIND 1984 SC 7] at 359–360 : [1984] 2 SCR 333 [LNIND 1984 SC 7]. As to
availability of alternative reliefs see [65.712].
End of Document
[65.712] Alternative reliefs
26. APPEALS
C. Right of Appeal
(iv) Procedure

It is open to the plaintiff, as dominus litus, to seek more than one relief either independently or in the alternative.
There are two viewpoints on the issue.
According to one, where the plaintiff has succeeded on one of the grounds he cannot file an appeal as he must be
satisfied with the relief and has no grievance1. Once the plaintiff exercises a choice, he cannot be allowed to “blow
hot and cold” or “approbate and reprobate” by throwing overboard the benefit secured after full trial. This would
amount to encouraging the whims and fancies of a litigant2.
According to the other view, since the right of appeal is allowed to a “person aggrieved”3, the question is not
whether a person has been granted one or the other relief but whether he is a “person aggrieved”. If he is, he can
appeal. If he is not, he cannot. Where he is awarded lesser relief than claimed by him, he may approbate the
decree to the extent to which it awards him relief and reprobate the decree to the extent to which it refuses him
relief4.
Whether a plaintiff who claims alternative relief and is granted one of the reliefs can appeal to obtain the other relief
may be decided on the averments in the plaint of the case concerned. However, if the plaint read as a whole
discloses that the plaintiff will be satisfied with either of the reliefs claimed by him, he cannot be allowed to appeal if
one of the reliefs is granted. One who gets what he wants cannot be said to be a “person aggrieved”.
On the other hand, if the plaint read as a whole gives an impression that of the alternative reliefs claimed, one is the
main relief and the other one is claimed only if it found that the main relief cannot possibly be granted and the main
relief is refused, it is open to the plaintiff to appeal and urge that on the facts and in law he is entitled to the main
relief and should have been granted that. In such circumstances claiming alternative reliefs is not a bar to appeal by
the plaintiff5.
Page 2 of 2
1 Reajuddin Patwari v Syed Abdul Jobbar, AIR 1924 Cal 445 : 69 IC 504; Sakku Bai v R Babu, AIR 1977 Mad 223
[LNIND 1976 MAD 105]: (1977) 1 Mad LJ 311 : (1977) 90 Mad LW 110; Ramesh Chandra Chandiok v Chunni Lal
Sabharwal (decd) by lrs, AIR 1971 SC 1238 [LNIND 1970 SC 406]: (1970) 3 SCC 40 : [1971] 2 SCR 573 [LNIND 1970
SC 406]; Somasundaram Chettiar v Chindambaram Chettiar, AIR 1951 Mad 282 [LNIND 1950 MAD 262]: (1950) 2
Mad LJ 509 : (1950) Mad LW 702. As to valuation in appeals and execution procededings see [65.709]– [65.710].
2 Somasundaram Chettiar v Chidambaram Chettiar, AIR 1951 Mad 282 [LNIND 1950 MAD 262]: (1950) 2 Mad LJ 509 :
(1950) Mad LW 702.
3 Bank of Behar Ltd v Madhusudan Lal, AIR 1937 Pat 428 : 170 IC 451 : (1937) Pat WN 344; Sunder Bai (decd) by lrs
Kishorilal v Anandi Lal (decd) by lrs Mohaniwali, AIR 1983 All 23 : (1982) 8 All LR 586; UOI v Garbhu Sao, AIR 1972
Pat 341 : (1972) BLJR 646; Velayudhan Nair Gopalan Nair v Ayyappan Pillai Madhavan Pillai, AIR 1964 Ker 153
[LNIND 1963 KER 45]: (1964) ILR 1 Ker 95 : (1964) Ker LJ 97; Bariar Singh v Durga Gir, AIR 1952 Pat 476; Hurrybux
Deora v Johurmull Bhatoria, AIR 1929 Cal 796 : (1930) ILR 57 Cal 386.
4 Hurrybux Deora v Johurmull Bhatoria, AIR 1929 Cal 796 : (1930) ILR 57 Cal 386.
5 UOI v Garbhu Sao, AIR 1972 Pat 341 at 343 : (1972) BLJR 646.
End of Document
[65.713] Nature and scope
(iv) Procedure > (E) Cross-objections
26. APPEALS
C. Right of Appeal
(iv) Procedure
(E) Cross-objections

Cross-objections may be directed by the respondent against the appellant. An objection by a respondent in which
the appellant has no interest cannot be treated as a cross-objection. While an appeal is by the appellant against a
respondent, a cross-objection must be an objection by a respondent against the appellant1.
A cross-objection is like a cross-appeal. It has all trappings of an appeal. The mere distinction between the two lies
in the fact that whereas cross-objections form part of the same record, cross-appeals are two independent
proceedings2.
Where a suit instituted by a plaintiff is partly decided in his favour and partly decided against him and one of the
parties, either the plaintiff or the defendant, files an appeal against the decree, the following remedies are available
to the opposite party.
(1) He may prefer an appeal from that part of the decree which is against him. In such cases, there may be
two appeals against the same decree; one by the plaintiff and the other by the defendant. They are known
as “cross-appeals”. Both these appeals will be disposed of together3.
(2) He may, instead of filing an appeal against the part of the decree passed against him, take objections
against it. Such objections are called “cross-objections”4.
(3) Without filing a cross-appeal or cross-objections, he may support the decree on the grounds decided in his
favour by the trial court or even on the grounds decided against him5.
Where, in any case in which any respondent has filed a memorandum of objection, the original appeal is withdrawn
or is dismissed for default, the objection so filed may, nevertheless, be heard and determined after such notice to
the other parties as the court thinks fit6. Where an appeal is withdrawn or dismissed for default and the cross-
objections are decided on the merits, restoration of the appeal and rehearing will not automatically warrant a
rehearing of the cross-objections7. However, if the appeal is dismissed as time barred8, or has abated9 or is held to
Page 2 of 2
be not maintainable10, the cross-objections cannot be heard on merits as they are contingent and dependent upon
the hearing of the appeal11.
1 Venkataswarlu v Ramamma, AIR 1950 Mad 379 [LNIND 1949 MAD 294]: (1950) ILR Mad 874 (FB); Mahant Dhangir v
Madan Mohan, AIR 1988 SC 54 [LNIND 1987 SC 717]: (1987) Supp SCC 528; Panna Lal v State of Bombay, AIR
1963 SC 1516 [LNIND 1963 SC 36]: [1964] 1 SCR 980 [LNIND 1963 SC 36]. As to who may file cross-objections see
[65.714].
2 N Jayaram Reddi v Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 SC 1393 [LNIND 1979
SC 210]: (1979) 3 SCC 578 [LNIND 1979 SC 210] : [1979] 3 SCR 599 [LNIND 1979 SC 210].
3 Commr of Sales Tax, Uttar Pradesh, Lucknow v Vijai Int Udayog, Hattras, AIR 1985 SC 109 : (1984) 4 SCC 543 :
(1985) 152 ITR 111.
4 See the Code of Civil Procedure, 1908 O XLI rule 22; and [65.714].
5 See the Code of Civil Procedure, 1908 O XLI rule 33; and [65.721]. See Ramanbhai Ashabhai Patel v Dabhi Ajitkumar
Fulcinji with Solanki H Jaisingji as Intervener, AIR 1965 SC 669 [LNIND 1964 SC 265]at 676 : [1965] 1 SCR 712
[LNIND 1964 SC 265] : (1965) 6 Guj LR 423; UOI v Kollumi Ramaiah, AIR 1994 SC 1149 [LNIND 1993 SC 956]at
1151 : (1994) 1 SCC 367 [LNIND 1993 SC 956] at 370 : (1993) 6 JT 465; Bihar Supply Syndicate v Asiatic Navigation,
AIR 1993 SC 2054 [LNIND 1993 SC 216]: (1993) 2 SCC 639 [LNIND 1993 SC 216] at 650–651 : (1993) 2 JT 396
[LNIND 1993 SC 216]; Choudhary Sahu (decd) by lrs v State of Bihar, AIR 1982 SC 98 [LNIND 1981 SC 463]at 99 :
(1982) 1 SCC 232 [LNIND 1981 SC 463] at 235 : [1982] 1 SCR 178; Employers in relation to the management of the
Indian Cable Co Ltd v Their Workmen, AIR 1972 SC 2195 [LNIND 1972 SC 218]at 2198–2199 : (1974) 3 SCC 11
[LNIND 1972 SC 218] at 17–18 : [1973] 1 SCR 105 [LNIND 1972 SC 218]; Banarsi v Ram Phal, AIR 2003 SC 1989
[LNIND 2003 SC 207]: (2003) 9 SCC 606 [LNIND 2003 SC 207]; S Nazeer Ahmad v State Bank of Mysore, AIR 2007
SC 989 [LNIND 2007 SC 43]: (2007) 11 SCC 75 [LNIND 2007 SC 43].
7 Nanoo v Neelachantan, AIR 1990 Ker 197 [LNIND 1989 KER 443]: (1989) 2 KLJ 775.
8 Charity Commr v Padmavati, AIR 1956 Bom 86 [LNIND 1955 BOM 42]; Ram Chand v Ramku, AIR 1977 HP 82
[LNIND 1977 HP 23]: 1977 Shim LC 277; Chettiar v Chetty, AIR 1919 Mad 784 (FB) (Mad).
9 Abdullamiya v Mohammedmiya, AIR 1949 Bom 276 : (1949) 51 Bom LR 241; Chanchalgauri v Narendrakumar, AIR
1986 Guj 55 [LNIND 1984 GUJ 48]: (1985) 1 GLR 359; Ram Chand v Ramku, AIR 1977 HP 82 [LNIND 1977 HP 23]:
1977 Shim LC 277; Lt Col Choudhary v Altaf Ahmed, AIR 1963 AP 382 [LNIND 1962 AP 148]: (1963) 1 AnWR 243
[LNIND 1962 AP 148].
10 Kashiram v Ranglal, AIR 1941 Bom 242 : (1941) 43 Bom LR 475.
SC 210]: (1979) 3 SCC 578 [LNIND 1979 SC 210] : [1979] 3 SCR 599 [LNIND 1979 SC 210].
End of Document
[65.714] Who may file cross-objections
26. APPEALS
C. Right of Appeal
(iv) Procedure

Any respondent, though he may not have appealed from any part of the decree, may not only support the decree
but may also state that the finding against him in the court below in respect of any issue ought to have been in his
favour and may also take any cross-objection to the decree which he could have taken by way of appeal, provided
he has filed such objection in the appellate court within one month from the date of service on him or his pleader of
notice of the day fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow1.
A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based
may file a cross-objection in respect of the decree in so far as it is based on that finding notwithstanding that by
reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree is,
wholly or in part, in favour of that respondent2.
Cross-objections may be filed by the respondent if he could have filed an appeal against any part of the decree or if
he is aggrieved by a finding in the judgment even though the decree is in his favour because of some other finding.
Cross-appeals and cross-objections provide two different remedies for the same purpose3. The right to file cross-
objections is substantive in nature and not merely procedural4.
1 Code of Civil Procedure, 1908 O XLI rule 22 (1). As to the persons against whom cross-objections may be filed see
[65.715].
2 Code of Civil Procedure, 1908 O XLI rule 22 (1) explanation.
SC 210]: (1979) 3 SCC 578 [LNIND 1979 SC 210] : [1979] 3 SCR 599 [LNIND 1979 SC 210]; Municipal Corp of Delhi v
International Security of Intelligence Agency Ltd, (2004) 3 SCC 250 [LNIND 2003 SC 170].
Page 2 of 2
4 Panna Lal v State of Bombay, AIR 1963 SC 1516 [LNIND 1963 SC 36]: [1964] 1 SCR 980 [LNIND 1963 SC 36];
Mahant Dhangir v Madan Mohan, AIR 1988 SC 54 [LNIND 1987 SC 717]: (1987) Supp SCC 528; Mahadev Govind v
Land Acquisition Officer, AIR 2011 SC 2439 [LNIND 2011 SC 509]: (2011) 6 SCC 321 [LNIND 2011 SC 509].
End of Document
[65.715] Against whom cross-objections may be filed
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.715] Against whom cross-objections may be filed

Ordinarily, cross-objections may be filed against the appellant. In exceptional cases, however, one respondent may
file cross-objections against co-respondents, for instance when the appeal by some of the parties cannot effectively
be disposed of without opening of the matter as between the respondents inter se or in a case where the objections
are common as against the appellant and co-respondent1.
Thus, where the relief sought against the appellant in cross-objections is intermixed with the relief granted to the
other respondents in such a way that the relief against the appellant cannot be granted without the question being
re-opened between the objecting respondent and other respondents may be allowed2.
1 Panna Lal v State of Bombay, AIR 1963 SC 1516 [LNIND 1963 SC 36]: [1964] 1 SCR 980 [LNIND 1963 SC 36];
Mahant Dhangir v Madan Mohan, AIR 1988 SC 54 [LNIND 1987 SC 717]: (1987) Supp SCC 528; Venkateswarulu v
Ramamma, AIR 1950 Mad 379 [LNIND 1949 MAD 294]: ILR 1950 Mad 874 : (1950) 1 Mad LJ 54. As to persons who
may file cross-objections see [65.714].
2 See note 1 above; see also Basistha Narayan v Sankar Dayal, AIR 1952 Pat 323 : (1950) ILR 29 Pat 160; Saligram v
Ayodhya Prasad, AIR 1966 Pat 61.
End of Document
[65.716] Omission to file cross-objections
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.716] Omission to file cross-objections

A party in whose favour a decree has been passed, has a substantive and valuable right which must not be
interfered with. In the absence of a cross-appeal or a cross-objection by a respondent, the appellate court has no
power to disturb the decree of the lower court so far as it is in favour of the appellant1.
1 Choudhary Sahu (decd) by lrs v State of Bihar, AIR 1982 SC 98 [LNIND 1981 SC 463]: (1982) 1 SCC 232 [LNIND
1981 SC 463] : [1982] 2 SCR 178 [LNIND 1981 SC 463]; Mahant Dhangir v Madan Mohan, AIR 1988 SC 54 [LNIND
1987 SC 717]: (1987) Supp SCC 528; Nirmala Bala Ghose v Balai Chand Ghose, AIR 1965 SC 1874 [LNIND 1965 SC
108]: [1965] 3 SCR 550 [LNIND 1965 SC 108]; Banarsi v Ram Phal, AIR 2003 SC 1989 [LNIND 2003 SC 207]: (2003)
9 SCC 606 [LNIND 2003 SC 207]; Chockalingam v Seethai, AIR 1927 PC 252. As to the nature and scope of filing of
cross-objections see [65.713].
End of Document
[65.717] Principles
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.717] Principles
The following are the principles relating to cross-objections1.
(1) Cross-objections have all the trappings of an appeal. It is filed in the form of a memorandum and the
requirements as to the form and contents of a memorandum of appeal2 apply to a cross-objection also.
(2) A court fee is payable on a cross-objection similar to that on a memorandum of appeal. The provisions
relating to appeals by indigent persons3 also apply to cross-objections.
(3) Even where an appeal is withdrawn or dismissed for default4, a cross-objection may be heard and
determined.
(4) A respondent may support the decree, even though he has not appealed, on any other ground. However, if
wants to modify it, he has to file a cross-objection to the decree, which objection he could have taken
earlier by filing an appeal. The time for filing an objection which is in the nature of an appeal is extended by
one month after the service of notice on him of the day fixed for hearing the appeal. This time may also be
extended by the court as in an appeal5.
(5) A cross-objection is nothing but a cross-appeal. It may be that the respondent wanted to give quietus to the
whole litigation by his accepting the judgment and the decree or order even if it was partly against his
interest. When, however, the other party challenges it by filing an appeal, the respondent is given a second
chance to file an appeal by way of a cross-objection if he still feels aggrieved by the judgment and decree
or order.
Page 2 of 2
[65.717] Principles
1 Superintending Engineer v B Subba Reddy, AIR 1999 SC 1747 [LNIND 1999 SC 460]: (1999) 4 SCC 423 [LNIND 1999
SC 460] : [433-34] (1993) 3 JT 311. As to the procedure at hearing see [65.719].
2 See [65.674].
3 See [65.638].
4 See [65.689].
5 See [65.681].
End of Document
[65.718] Form of cross-objection
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.718] Form of cross-objection

A cross-objection must be in the form of a memorandum and the statutory provisions relating to the form and
contents of the memorandum of appeal1 apply to it2.
1 Ie the provisions of the Code of Civil Procedure, 1908 O XLI rule 22 (1): see [65.674].
2 Code of Civil Procedure, 1908 O XLI rule 22 (2). As to the procedure at hearing see [65.719].
End of Document
[65.719] Procedure at hearing
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.719] Procedure at hearing

The statutory provisions relating to appeals by indigent persons1 must, so far as they may be made applicable, also
apply to the objections stated above2.
1 See [65.638].
2 Code of Civil Procedure, 1908 O XLI rule 22 (5). See Krishan Gopal v Haji Mohammed Muslim, AIR 1969 Del 126. As
to the principles applicable for filing of cross-objections see [65.717].
End of Document
[65.720] Limitation
26. APPEALS
C. Right of Appeal
(iv) Procedure
[65.720] Limitation
Cross-objections must be filed within one month from the date of the service on the respondent or his pleader of the
notice of the date fixed for hearing of the appeal1. The appellate court may extend such period. The discretion,
however, must be exercised judicially. The decision is open to review by the superior court2.

2 Vishwa Nath v Maharaji, AIR 1977 All 459; Amulya Krishna v RP Co-op Bank, AIR 1940 Cal 150; Raghunath v Kishora
Chandra, AIR 1958 Ori 260 [LNIND 1958 ORI 27]. As to filing of cross-objections generally see [65.713]–[65.719].
End of Document
[65.721] Powers of appellate court
Vol 5) 2nd ed > 26. APPEALS > (1) FIRST APPEALS FROM DECREES > D. Powers of Appellate
Court > (i) General powers
26. APPEALS
D. Powers of Appellate Court
(i) General powers

A court of appeal has the same powers and performs the same duties as those conferred and imposed on a court
of original jurisdiction1. The hearing of appeal is rehearing of the suit or original proceeding2.
An appellate court has power3 to determine a case finally4, to remand a case5, to frame issues and refer them for
trial6 and to take additional evidence or to require such evidence to be taken7. The appellate court has power to
pass any decree and make any order which ought to have been passed or made and to pass or make such further
or other decree or order as the case may require, and this power may be exercised by the court notwithstanding
that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or
parties, although such respondents or parties may not have filed any appeal or objection and may, where there
have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of
all or any of the decrees, although an appeal may not have been filed against such decrees8.
The appellate court must not, however, make any order as to compensatory costs9 in pursuance of any objection on
which the court from whose decree the appeal is preferred has omitted or refused to make such order10.
1 The appellate court has the same powers and must perform, as nearly as may be, the same duties as are conferred
and imposed by the Code of Civil Procedure, 1908 on courts of original jurisdiction in respect of suits instituted therein:
section 107 (2). See Dilip v Mohd Azizul Haq, (2000) 3 SCC 607 [LNIND 2000 SC 475] : AIR 2000 SC 1976 [LNIND
2000 SC 475]. As to the final determination of an appeal see [65.722].
2 The appellate court has the same powers and must perform, as nearly as may be, the same duties as are conferred
and imposed by the Code of Civil Procedure, 1908 on courts of original jurisdiction in respect of suits instituted therein:
section 107 (2). See Dilip v Mohd Azizul Haq, (2000) 3 SCC 607 [LNIND 2000 SC 475] : AIR 2000 SC 1976 [LNIND
2000 SC 475]. As to the final determination of an appeal see [65.722].
3 Subject to such conditions and limitations as may be prescribed: Code of Civil Procedure, 1908 section 107 (1)
4 Code of Civil Procedure, 1908 section 107 (1)(a).
5 Code of Civil Procedure, 1908 section 107 (1)(b).
Page 2 of 2
6 Code of Civil Procedure, 1908 section 107 (1)(c).

7 Code of Civil Procedure, 1908 section 107 (1)(d).
9 Ie under the Code of Civil Procedure, 1908 section 35A: see [65.542].
10 Code of Civil Procedure, 1908 O XLI rule 33 proviso.
End of Document
[65.722] Final determination
Court > (ii) Final determination
26. APPEALS
(ii) Final determination
[65.722] Final determination

Where the evidence upon record is sufficient to enable the appellate court to pronounce a judgment, the appellate
court may, after re-settling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of
the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on
which the appellate court proceeds1.
As a general rule, the case must be disposed of on the evidence on record by drawing a final curtain on the
litigation between the parties2.
1 Code of Civil Procedure, 1908 section 107 (1)(a), O XLI rule 24. As to the powers of the appellate court see [65.721].
2 Sunder Singh v Narain Singh, AIR 1966 SC 1977 [LNIND 1966 SC 81]: [1966] 3 SCR 863 [LNIND 1966 SC 81] :
(1969) SCD 900; Kausalya Devi Bogra v Land Acquisition Officer, Aurangabad, AIR 1984 SC 892 [LNIND 1984 SC
371]: (1984) 2 SCC 324 [LNIND 1984 SC 371] : [1984] 2 SCR 900 [LNIND 1984 SC 371]; Chinnamarkathian alias
Muthu Gounder (with Chinna Gounder and Raja Gounder) v Ayyavoo alias Periana Gounder, AIR 1982 SC 137 :
(1982) 1 SCC 159 : [1982] 3 SCR 146; Patel Sureshbhai Jashbhai v Patel Satabhai Mathurbhai, AIR 1983 SC 648
[LNIND 1983 SC 133]: (1983) 3 SCC 294 [LNIND 1983 SC 133] : (1983) Guj LH 907; D Kaur v Kanti Khare, AIR 1982
SC 784 [LNIND 1981 SC 107](3) : (1981) 4 SCC 152 : (1982) All LJ 285 (2); Sant Narain v Rama Krishna Mission, AIR
1974 SC 2241 [LNIND 1974 SC 484]at 2246 : (1974) 2 SCC 730 [LNIND 1974 SC 484] at 737; Bechan Pandey v
Dulhin Janki Devi, AIR 1976 SC 866 [LNIND 1976 SC 82]at 869 : (1976) 2 SCC 286 [LNIND 1976 SC 82] at 290 :
[1976] 3 SCR 555 [LNIND 1976 SC 82]; Rajeshwar Rao v Collector, Hyderabad, (1969) 2 SCWR 344; Nedunuri
Kameswaramma v Sampati Subba Rao, AIR 1963 SC 884 [LNIND 1962 SC 169]: [1963] 2 SCR 208 [LNIND 1962 SC
495] : (1963) 2 SCJ 113 [LNIND 1962 SC 169]. “If life like a dome of many-coloured glass stains the white radiance of
eternity, so do the doings and conflicts of mortal beings till death tramples them down.” (per Khanna J in Bechan
Pandey v Dulhin Janki Devi, AIR 1976 SC 866 [LNIND 1976 SC 82]at 869 : (1976) 2 SCC 286 [LNIND 1976 SC 82] at
299; K Gopalan v K Balakrishnan, (2005) 12 SCC 351; Ashwin Kumar v Upendra, AIR 1999 SC 1125 [LNIND 1999 SC
226]: (1999) 3 SCC 161 [LNIND 1999 SC 226].
End of Document
[65.723] Power to remand case
Court > (iii) Remand
26. APPEALS
(iii) Remand
[65.723] Power to remand case

An appellate court has power to remand a case to the trial court in certain circumstances1. On remand, the trial
court will readmit the suit under its original number in the register of civil suits and will proceed to determine it as per
the directions issued by the appellate court2.
1 Code of Civil Procedure, 1908 O XLI rules 23, 23A. See further [65.729]–[65.730]. As to the conditions for remand see
[65.726].
2 Orient Papers and Industries Ltd v Tahsildar-cum-Irrigation Officer, (1998) 7 SCC 303 [LNIND 1998 SC 856] : AIR 1998
SC 3330 [LNIND 1998 SC 856].
End of Document
[65.724] Remand :
26. APPEALS
(iii) Remand
[65.724] Remand :
Meaning “Remand” means “to send back, remit or consign again”. In law, “remand” means “to send back (a case) to
a lower court from which it was appealed, with instructions as to what further proceedings should be had”1.
1 Webster’s Encyclopedic Unabridged Dictionary, (1994) p 1213.
End of Document
[65.725] Discretion of appellate court
26. APPEALS
(iii) Remand
[65.725] Discretion of appellate court

The words “the appellate court may, if it thinks fit, by order remand the case” clearly indicate that it is in the
discretion of the appellate court to remand the case. Neither the appellant has a right to claim remand of the case
nor the appellate court is bound to pass such an order1.
1 SP Roy Choudhury v Teja Bai 1968 SCD 440; S Rajeshwar Rao v Land Acquisition Officer, Hyderabad, (1969) 2
SCWR 344; Bechan Pandey v Dulhin Janki Devi, AIR 1976 SC 866 [LNIND 1976 SC 82]: (1976) 2 SCC 286 [LNIND
1976 SC 82]; Ashwin Kumar v Upendra, AIR 1999 SC 1125 [LNIND 1999 SC 226]: (1999) 3 SCC 161 [LNIND 1999
SC 226].
End of Document
[65.726] Conditions
26. APPEALS
(iii) Remand
[65.726] Conditions
A remand by the appellate court cannot be ordered lightly1. It may be ordered only if the following conditions are
satisfied2.
1. The suit must have been disposed of by the trial court on a preliminary point. Before the court can exercise the
power of remand, it must be shown that the lower court has disposed of the suit on a preliminary point. A point may
be said to be a preliminary point if the decision thereon is sufficient to dispose of the whole suit, without deciding the
other points in the case3. Such preliminary point may be one of fact or of law but the decision thereon must have
avoided a full hearing of the suit.
Thus, where the lower court dismisses the suit as being time barred or barred by limitation or res judicata or as
disclosing no cause of action, it does so on a preliminary point of law4. On the other hand, where the lower court
dismisses the suit on the ground that the plaintiff is estopped from proving his case or that it was improperly
motivated or that the plea raised at the hearing was different from that raised in the plaint, it does so on a
preliminary point of fact5.
2. The decree under appeal must have been reversed. No remand may be ordered by the appellate court unless
the decision of the lower court is reversed in appeal6. The appellate court cannot remand the case simply because
the judgment of the lower court is not satisfactory or on the ground that the lower court has misconceived or
misread the evidence or ignored important evidence or acted contrary to law or that the materials on which the
conclusion is reached are scanty7.
3. Other grounds. The appellate court may remand a case even if the lower court has disposed of the case
otherwise than on a preliminary point and the remand is considered necessary by the appellate court in the
interests of justice8. The object of this provision is to widen the powers of the appellate court to remand a case in
the interests of justice9. The power of remand is regulated by express provisions and no inherent powers may be
exercised by the appellate court10.
Page 2 of 2
[65.726] Conditions
1 K Krishna Reddy v Special Deputy Collector, Land Acquisition Unit II, LMD Karimnagar, Andhra Pradesh, AIR 1988 SC
2123 [LNIND 1988 SC 439]: (1988) 4 SCC 163 [LNIND 1988 SC 439] : [1988] Supp 2 SCR 853; Bhairab Chandra
Nandan v Ranadhir Chandra Dutt, AIR 1988 SC 396 : (1988) 1 SCC 383 : (1987) 2 Scale 402; Peria Nachi Muthu
Gounder v Raju Thevar (decd), AIR 1985 SC 821 [LNIND 1985 SC 44]: (1985) 2 SCC 290 [LNIND 1985 SC 44] :
(1985) 1 Scale 402 [LNIND 1985 SC 44]; Kausalya Devi Bogra v Land Acquisition Officer, Aurangabad, AIR 1984 SC
892 [LNIND 1984 SC 371]: (1984) 2 SCC 324 : [1984] 2 SCR 900 [LNIND 1984 SC 371]; Chinnamarkathian alias
Muthu Gounder (with Chinna Gounder and Raja Gounder) v Ayyavoo alias Periana Gounder, AIR 1982 SC 137 :
(1982) 1 SCC 159 : [1982] 3 SCR 146; Patel Sureshbhai Jashbhai v Patel Satabhai Mathurbhai, AIR 1983 SC 648
[LNIND 1983 SC 133]: (1983) 3 SCC 294 [LNIND 1983 SC 133] : (1983) Guj LH 907; D Kaur v Kanti Khare, AIR 1982
SC 784 [LNIND 1981 SC 107](3) : (1981) 4 SCC 152 : (1982) All LJ 285 (2); Sant Narain Mathur v Rama Krishna
Mission, AIR 1974 SC 2241 [LNIND 1974 SC 484](2246) : (1974) 2 SCC 730 [LNIND 1974 SC 484] at 737; Bechan
Pandey v Dulhin Janki Devi, AIR 1976 SC 866 [LNIND 1976 SC 82]at 869 : (1976) 2 SCC 286 [LNIND 1976 SC 82] at
290 : [1976] 3 SCR 555 [LNIND 1976 SC 82]; Sunder Singh v Narain Singh, AIR 1966 SC 1977 [LNIND 1966 SC 81]:
[1966] 3 SCR 863 [LNIND 1966 SC 81] : (1969) SCD 900; Nedunuri Kameswaramma v Sampati Subba Rao, AIR 1963
SC 884 [LNIND 1962 SC 169]: [1963] 2 SCR 208 [LNIND 1962 SC 495] : (1963) 2 SCJ 113 [LNIND 1962 SC 169];
Aswinkumar Patel v Upendra J Patel, AIR 1999 SC 1125 [LNIND 1999 SC 226]: (1999) 3 SCC 161 [LNIND 1999 SC
226] : (1999) 2 JT 136; Raghbendra Bose v Sunil Krishna, (2005) 12 SCC 309 [LNIND 2005 SC 1063]; Shanti Devi v
Daropti Devi, (2006) 13 SCC 775 : [2006] Supp (10) SCR 1050 : (2006) 13 Scale 577; Municipal Corp of Hyderabad v
Sunder Singh, AIR 2008 SC 2575 : (2008) 8 SCC 455. As to the power to remand see [65.723].
2 Sir Mohammad Akbar Khan v Motai, AIR 1948 PC 36 : (1948) 61 LW 76; Kalipada Dinda v Kartick Chandra Hait, AIR
1977 Cal 3 [LNIND 1976 CAL 244].
3 Malayath Veetil Raman v C Krishnan Nambudripad, AIR 1922 Mad 505 [LNIND 1922 MAD 72]at 508 : (1922) ILR 45
Mad 900 : 69 IC 828 (FB); Maharaja Dharmchandra Prasad Singh v State of Uttar Pradesh, AIR 1973 All 174 at 181–
182 : (1972) ILR 1 All 529; Bai Bai w/o Gyanoba v Mahadeo Maruti, AIR 1960 Bom 543 [LNIND 1959 BOM 122]at 547
: (1961) ILR Bom 1 : (1960) 62 Bom LR 304; Chaudhury Chandrika Prasad Singh v Mithu Rai, AIR 1927 Pat 296 :
(1927) ILR 6 Pat 380, 103 IC 722.
4 Malayath Veetil Raman v C Krishnan Nambudripad, AIR 1992 Mad 505 : (1922) ILR 45 Mad 900 : 69 IC 828 (FB); Bai
Bai w/o Gyanoba v Mahadu Maruti, AIR 1960 Bom 543 [LNIND 1959 BOM 122]: (1960) Nag LJ 363 [LNIND 1959
BOM 122] 1 : (1960) 62 Bom LR 41; Nirmala Sundari Debu v Golap Bashini Debi, AIR 1934 Cal 49 : 150 IC 68 : (1933)
57 Cal LJ 473 (Cal); Muhammad Allahdad Khan v Muhammad Ismail Khan, (1888) ILR 10 All 289 (SB).
5 Rameshur Singh v Sheodin Singh, (1890) ILR 12 All 510 : (1890) 10 Oudh WN 128; Kalu Dalpat Patil v Narayan
Dagadu Sutar, AIR 1927 Bom 111 : 100 IC 578 : (1927) 29 Bom LR 56 (Bom); Banka Bihari Deb v Birendra Nath Dutta,
AIR 1927 Cal 850 : (1928) ILR 55 Cal 219 (Cal) : 103 IC 864; Abdullah Khan v Mahomed Maqbul Hussain (with Shafiq),
AIR 1923 All 603 : 74 IC 822 : (1923) 45 All 565 (All); Purapabatchi Rama Rao v Purapa Vimalakumari, (1896) ILR 19
Mad 479 : (1969) 2 Andh WR 49.
6 Purapabatchi Rama Rao v Purapa Vimalakumari, (1896) ILR 19 Mad 479 : (1969) 2 Andh WR 49; Ratanraj v Kripa
Shanker, AIR 1955 Raj 193; Narayanswami v State of Madras, (1969) 1 Mad 411.
7 Sunder Singh v Narain Singh, AIR 1966 SC 1977 [LNIND 1966 SC 81]: [1966] 3 SCR 863 [LNIND 1966 SC 81] : 1969
SCD 900; Rajeshwar Rao v Collector, Hyderabad, (1969) 2 SCWR 344.
8 See the Code of Civil Procedure, 1908 O XLI rule 23A (see [65.737]).
9 State of Tamil Nadu v S Kumaraswami, AIR 1977 SC 2026 [LNIND 1976 SC 110]: (1977) 4 SCC 602 : (1976) 2 Mad
LJ (SC) 1; Dwarka Nath Prasad v Ram Rati Devi, AIR 1980 SC 192 : (1980) 1 SCC 17 : (1980) 1 SCWR 105.
10 Mahendra Manilal Nanavati v Sushila Mahendra Nanavati, AIR 1965 SC 364 [LNIND 1964 SC 87]at 399 : [1964] 7
SCR 267 [LNIND 1964 SC 87] : (1965) 6 SCJ 788; Nainsingh v Koonwarjee, AIR 1970 SC 997 [LNIND 1970 SC 185]:
(1970) 1 SCC 732 [LNIND 1970 SC 185] : [1971] 1 SCR 207 [LNIND 1970 SC 185]; Raghabendra Bose v Sunil
Krishna, (2005) 12 SCC 309 [LNIND 2005 SC 1063]; Shanti Devi v Daropti Devi, (2006) 13 SCC 775.
End of Document
[65.727] Duty of trial court
26. APPEALS
(iii) Remand
[65.727] Duty of trial court

Once an order of remand is made by a superior court, an inferior court has to decide the matter according to the
direction of the superior court1. A High Court cannot express doubts about the competence of the Supreme Court to
remand the case2.
1 Commissioner of Wealth Tax v Aluminium Corp Ltd, (1973) 3 SCC 643 [LNIND 1971 SC 424] : [1972] 1 SCR 484
[LNIND 1971 SC 424]; K Krishna Reddy v Special Deputy Collector. Land Acquisition Unit II, LMD Karimnagar, Andhra
Pradesh, AIR 1988 SC 2123 [LNIND 1988 SC 439]: (1988) 4 SCC 163 [LNIND 1988 SC 439] : [1988] Supp 2 SCR
853; Surendra Narain v Prashidh Narain, (1988) Supp SCC 171; Patel Sureshbhai Jashbhai v Patel Satabhai
Mathurbhai, AIR 1983 SC 648 [LNIND 1983 SC 133]: (1983) 3 SCC 294 [LNIND 1983 SC 133] : (1983) Guj LH 907;
Sukhrani (decd) by lrs v Hari Shanker, AIR 1979 SC 1436 [LNIND 1979 SC 233]: (1979) 2 SCC 463 [LNIND 1979 SC
233] : [1979] 3 SCR 671 [LNIND 1979 SC 233]; Margaret v Indo Commercial Bank, AIR 1979 SC 102 [LNIND 1978 SC
263]: (1979) 2 SCC 396 [LNIND 1978 SC 263]; Jasraj Indersingh v Hemraj Multanchand, AIR 1977 SC 1011 [LNIND
1977 SC 82]: (1977) 2 SCC 155 [LNIND 1977 SC 82] : [1977] 2 SCR 973 [LNIND 1977 SC 82]; Bechan Pandey v
Dulhin Janki Devi, AIR 1976 SC 866 [LNIND 1976 SC 82]: (1976) 2 SCC 286 [LNIND 1976 SC 82] : [1976] 3 SCR 555
[LNIND 1976 SC 82]. As to the effect of remand see [65.728].
2 Commissioner of Wealth Tax v Aluminium Corp Ltd, (1973) 3 SCC 643 [LNIND 1971 SC 424] at 646 : [1972] 1 SCR
484 [LNIND 1971 SC 424]; Shantilal Desai v Gujarat Electricity Board, (1971) 3 SCC 854.
End of Document
[65.728] Effect
26. APPEALS
(iii) Remand
[65.728] Effect
An order of remand reverses the decision of the lower court and re-opens the case for fresh trial by the lower court
except in regard to the matters decided by the appellate court1.
If the party aggrieved by an order of remand does not appeal therefrom, he cannot subsequently question its
correctness under the inherent powers of the court2. Similarly, the court to which the case is remanded is bound by
the order of remand and cannot go beyond it3. An order of remand nullfies the order passed by the trial court4.
Normally, while remanding the matter, the superior court should not make observations on the merits of the matter
and allow the lower court to adjudicate contested issues5.
1 See the Code of Civil Procedure, 1908 O XLIII rule 1 (u); and [65.730]. As to the duty of the trial court see [65.688]. As
to the appearance of the parties to receive directions see [65.730].
2 Code of Civil Procedure, 1908 section 105 (2) (see [65.738]). See Mahendra Manilal Nanavati v Sushila Mahendra
Nanavati, AIR 1965 SC 364 [LNIND 1964 SC 87]: [1964] 7 SCR 267 : (1965) 1 SCJ 788 [LNIND 1964 SC 87] (FB);
State of Maharashtra v Harishchandra, (1986) 3 SCC 349; Jasraj Indersingh v Hemraj Multanchand, AIR 1977 SC 1011
[LNIND 1977 SC 82]at 1017–1018 : (1977) 2 SCC 155 [LNIND 1977 SC 82] at 164; Sita Ram v Sukhnandi, AIR 1972
SC 1612 [LNIND 1971 SC 485](1617) : (1971) 3 SCC 488 [LNIND 1971 SC 485] at 494; Nainsingh v Koonwarjee, AIR
1970 SC 997 [LNIND 1970 SC 185]: (1970) 1 SCC 732 [LNIND 1970 SC 185] : [1971] 1 SCR 207 [LNIND 1970 SC
185]; United Bank of India v Abhijit Tea Co, AIR 2000 SC 2957 [LNIND 2000 SC 1190]: (2000) 7 SCC 357 [LNIND
2000 SC 1190].
3 Nainsingh v Koonwarjee, AIR 1970 SC 997 [LNIND 1970 SC 185]: (1970) 1 SCC 732 [LNIND 1970 SC 185] : [1971] 1
SCR 207 [LNIND 1970 SC 185]; Kausalya Devi v Land Acquisition Officer, AIR 1984 SC 892 [LNIND 1984 SC 371]at
896–896 : (1984) 2 SCC 324 [LNIND 1984 SC 371] at 333–334; Narinder Singh v Surjit Singh, AIR 1984 SC 1359 :
(1984) 2 SCC 402; Jasraj Indersingh v Hemraj Multanchand, AIR 1977 SC 1011 [LNIND 1977 SC 82]at 1017– 1018 :
(1977) 2 SCC 155 [LNIND 1977 SC 82] at 164; Commr of Wealth Tax v Aluminium Corp Ltd, (1973) 3 SCC 643 [LNIND
1971 SC 424] : [1972] 1 SCR 484 [LNIND 1971 SC 424]; Bhopal Sugar Industries v ITO, AIR 1961 SC 182 [LNIND
1960 SC 190]at 185 : [1961] 1 SCR 474 [LNIND 1960 SC 190]; Tobacco Manu Ltd v STC, AIR 1961 SC 402 [LNIND
1960 SC 246]at 405 : [1961] 2 SCR 106 [LNIND 1960 SC 246].
Page 2 of 2
[65.728] Effect
4 Kausalya Devi Bogra v Land Acquisition Officer, Aurangabad, AIR 1984 SC 892 [LNIND 1984 SC 371]: (1984) 2 SCC
324 [LNIND 1984 SC 371] : [1984] 2 SCR 900 [LNIND 1984 SC 371].
5 Ravinder Kaur v Ashok Kumar, (2003) 8 SCC 289 [LNIND 2003 SC 887] : AIR 2004 SC 904 [LNIND 2003 SC 887];
Raghbendra Bose v Sunil Krishna, (2005) 12 SCC 309 [LNIND 2005 SC 1063].
End of Document
[65.729] Remand by where suit disposed of on preliminary point
26. APPEALS
(iii) Remand
[65.729] Remand by where suit disposed of on preliminary point

Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and
the decree is reversed in appeal, the appellate court may, if it thinks fit, by order remand the case, and may further
direct what issue or issues must be tried in the case so remanded, and must send a copy of its judgment and order
to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number
in the register of civil suits, and proceed to determine the suit; and the evidence, if any, recorded during the original
trial is, subject to all just exceptions, to be evidence during the trial after remand1.
1 Code of Civil Procedure, 1908 O XLI rule 23. As to remand in other cases see [65.730].
End of Document
[65.730] Remand in other cases
26. APPEALS
(iii) Remand
[65.730] Remand in other cases

Where the court from whose decree an appeal is preferred has disposed of the case otherwise than on a
preliminary point1 and the decree is reversed in appeal and a re-trial is considered necessary, the appellate court
has the same powers as it has when the case is disposed of on a preliminary point2.
1 As to the powers of remand where the suit is disposed of on a preliminary point see [65.729].
2 Code of Civil Procedure, 1908 O XLI rule 23A; P Purushottam Reddy v Pratap Steels Ltd, AIR 2002 SC 771 : (2002) 2
SCC 686 [LNIND 2002 SC 66]; Remco Industrial Workers’ House Building Co-op Society v Lakshmeesha, AIR 2003
SC 3167 [LNIND 2003 SC 721]: (2003) 11 SCC 666 [LNIND 2003 SC 721].
End of Document
[65.731] Date of next hearing
26. APPEALS
(iii) Remand
[65.731] Date of next hearing

Where the appellate court remands a case1, or frames issues and refers them for trial2, it must fix a date for the
appearance of the parties before the court from whose decree the appeal was preferred for the purpose of receiving
the directions of that court as to further proceedings in the suit3.
1 Under the Code of Civil Procedure, 1908 O XLI rule 23 or rule 23A: see [65.729]– [65.730].
2 Under the Code of Civil Procedure, 1908 O XLI rule 25: see [65.732].
3 Code of Civil Procedure, 1908 O XLI rule 26A; see also Latadevi v Ramnath, AIR 1987 Bom 364 [LNIND 1987 BOM 4];
Wakf Masjid v Azhar Hussain, AIR 1985 All 100 [LNIND 1984 ALL 154]: 1984 All WN 858.
End of Document
[65.732] Frame of issues and referral of issues for trial
Court > (iv) Framing Issues and Referral of Issues for Trial
26. APPEALS
(iv) Framing Issues and Referral of Issues for Trial
[65.732] Frame of issues and referral of issues for trial

Where the court from whose decree the appeal is preferred has omitted to frame or try any issue or to determine
any question of fact which appears to the appellate court essential to the right decision of the suit upon the merits,
the appellate court may, if necessary, frame issues and refer them for trial to the court from whose decree the
appeal is preferred and in such a case must direct such court to take the additional evidence required; and such
court must proceed to try such issues and must return the evidence to the appellate court together with its findings
thereon and the reasons therefor within such time as may be fixed by the appellate court or extended by it from time
to time1.
1 Code of Civil Procedure, 1908 section 107 (1)(c), O XLI rule 25; see also Bhachchan Devi v Nagar Nigam, Gorakhpur,
AIR 2008 SC 1282 [LNIND 2008 SC 252]: (2008) 12 SCC 372 [LNIND 2008 SC 252]; Mahendra v Sushila, AIR 1965
SC 364 [LNIND 1964 SC 87]: (1964) 7 SCC 267; P Purushottam Reddy v Pratap Steels Ltd, AIR 2002 SC 771 : (2002)
2 SCC 686 [LNIND 2002 SC 66]. As to the framing of issues by the appellate court see [65.733].
End of Document
[65.733] Evidence and findings
26. APPEALS
[65.733] Evidence and findings

Where the appellate court frames issues1, the evidence and findings must form a part of the record in the suit and
either party may, within a time to be fixed by the appellate court, present a memorandum of objections to any
finding2. After the expiration of the period so fixed for presenting such memorandum, the appellate court must
proceed to determine the appeal3.
1 Ie under the Code of Civil Procedure, 1908 O XLI rule 25: see [65.732].
2 Code of Civil Procedure, 1908 O XLI rule 26 (1); see also Gogula Gurumurthy v Kurimeti, AIR 1974 SC 1702 [LNIND
1974 SC 102]: (1975) 4 SCC 458 [LNIND 1974 SC 102]; Chitra Kumar v UOI, (2001) 3 SCC 208 [LNIND 2001 SC 414].
3 Code of Civil Procedure, 1908 O XLI rule 26 (2); see note 2.
End of Document
[65.734] Effect
26. APPEALS
[65.734] Effect
The evidence and findings on issues framed by the appellate court will form a part of the record in the suit1 and
either party may file a memorandum of objections to the finding of the lower court within a time fixed by the
appellate court in the appellate court2. The appellate court should, thereafter, hear the whole appeal and the
hearing should not be confined to the points on which the findings were called for3.
1 See [65.733].
2 Mahendra Manilal Nanavati v Sushila Mahendra Nanavati, AIR 1965 SC 364 [LNIND 1964 SC 87]: [1964] 7 SCR 267
[LNIND 1964 SC 87] : (1965) 6 SCJ 788 (FB); Pasupuleti Venkateswarlu v Motor and General Traders, AIR 1975 SC
1409 [LNIND 1975 SC 120]: (1975) 1 SCC 770 [LNIND 1975 SC 120] : [1975] 3 SCR 958 [LNIND 1975 SC 120]. As to
the
3 See note 2 above; and Gogula Gurumurthy v Kurimeti Ayyappa, AIR 1974 SC 1702 [LNIND 1974 SC 102]at 1703 :
(1975) 4 SCC 458 [LNIND 1974 SC 102] : [1974] 3 SCR 595 [LNIND 1974 SC 102]; Soundararaj v Devasahayam, AIR
1984 SC 133 [LNIND 1983 SC 309]: (1984) Supp SCC 235 : [1984] 1 SCR 497 [LNIND 1983 SC 309]. As to the frame
of issues and referral of issues for trial see [65.732].
End of Document
[65.735] Generally
Court > (v) Additional Evidence
26. APPEALS
(v) Additional Evidence
[65.735] Generally
As a general rule, the appellate court must decide an appeal on the evidence led by the parties before the trial court
and should not admit additional evidence for the purpose of the disposal of an appeal1. The parties to an appeal are
not entitled to produce additional evidence, whether oral or documentary, in the appellate court2. The Code of Civil
Procedure, 1908, however, empowers an appellate court to take additional evidence or require such evidence to be
taken subject to certain conditions3.
1 Municipal Corp of Greater Bombay v Pancham, AIR 1965 SC 1008 [LNIND 1964 SC 249]: [1965] 1 SCR 542 [LNIND
1964 SC 249] : (1966) 1 SCJ 49 [LNIND 1964 SC 249]; Soonda Ram v Rameshwarlal, AIR 1975 SC 479 at 480 :
(1975) 3 SCC 698 at 699 : (1975) Ren CJ 143; K Venkataramiah v A Seetharama Reddy, AIR 1963 SC 1526 [LNIND
1963 SC 39]at 1530 : [1964] 2 SCR 35 [LNIND 1963 SC 39] : (1964) 1 SCJ 37 [LNIND 1963 SC 39]; see also the Law
Commission of India, 14th Report pp 404–05; 27th Report p 241; 54th Report p 300. As to the meaning of “additional
evidence” see [65.736].
2 See the Code of Civil Procedure, 1908 O XLI rule 27 (1).
3 See the Code of Civil Procedure, 1908 section 107 (1)(d), O XLI rule 27; and Soonda Ram v Rameshwarlal, AIR 1975
SC 479 at 480 : (1975) 3 SCC 698 at 699 : (1975) Ren CJ 143; Municipal Corp of Greater Bombay v Pancham, AIR
1965 SC 1008 [LNIND 1964 SC 249]: [1965] 1 SCR 542 [LNIND 1964 SC 249] : (1966) 1 SCJ 49 [LNIND 1964 SC
249]; K Venkataramiah v A Seetharama Reddy, AIR 1963 SC 1526 [LNIND 1963 SC 39]at 1530 : [1964] 2 SCR 35
[LNIND 1963 SC 39] : (1964) 1 SCJ 37 [LNIND 1963 SC 39].
End of Document
[65.736] Meaning of “additional evidence”
26. APPEALS
[65.736] Meaning of “additional evidence”

“Additional evidence” does not mean evidence over and above the evidence led by the party in the lower court.
Such a view would be to introduce an additional condition not contemplated by the Code of Civil Procedure, 1908.
No distinction is intended between a party who has led some evidence and a party who has adduced no evidence
at all. All that is required is that the conditions laid down in the Code for the leading of additional evidence must be
satisfied1.
1 Jaipur Development Authority v Kailashwati Devi, AIR 1997 SC 3243 [LNIND 1997 SC 1146]: (1997) 7 SCC 297
[LNIND 1997 SC 1146] : (1997) 7 JT 643. As to the conditions which must be satisfied for leading additional evidence
see [65.735] and following. As to the nature, scope and object of additional evidence see [65.737], [65.738]
respectively.
End of Document
[65.737] Nature and scope of power to admit additional evidence
26. APPEALS
[65.737] Nature and scope of power to admit additional evidence

When a party is unable to produce the evidence in the trial court under the circumstances mentioned in the Code of
Civil Procedure, 19081, he is allowed to produce it in the appellate court. The power is discretionary and must be
exercised on sound judicial principles and in the interest of justice2.
1 See [65.739].
2 K Venkataramiah v A Seetharama Reddy, AIR 1963 SC 1526 [LNIND 1963 SC 39]: [1964] 2 SCR 35 [LNIND 1963 SC
39]; Jaipur Development Authority v Kailashwati Devi, AIR 1997 SC 3243 [LNIND 1997 SC 1146]: (1997) 7 SCC 297
[LNIND 1997 SC 1146] : (1997) 7 JT 643; Natha Singh v Financial Commissioner, Taxation, Punjab, AIR 1976 SC 1053
[LNIND 1976 SC 89]at 1056–1057 : (1976) 3 SCC 28 [LNIND 1976 SC 89] at 31 : [1976] 3 SCR 620 [LNIND 1976 SC
89]; Arjan Singh v Kartar Singh, AIR 1951 SC 193 [LNIND 1951 SC 15]at 195 : [1951] SCR 258 [LNIND 1951 SC 15] :
(1951) SCJ 274 [LNIND 1951 SC 15]; Syed Abdul Khader v Rami Reddy, AIR 1979 SC 553 [LNIND 1978 SC 352]:
(1979) 2 SCC 601 [LNIND 1978 SC 352]; P Purushottam Reddy v Pratap Steels Ltd, AIR 2002 SC 771 : (2002) 2 SCC
686 [LNIND 2002 SC 66]; KR Mohan Reddy v Network INC, AIR 2008 SC 579 [LNIND 2007 SC 1132]: (2007) 14 SCC
257 [LNIND 2007 SC 1132]; H P Vedavyasachar v Shivasankara, (2009) 8 SCC 231 [LNIND 2009 SC 2388] : [2009] 12
SCR 268. As to the meaning of “additional evidence” and the object of the power to admit it see [65.736], [65.738].
End of Document
[65.738] Object of admitting additional evidence
26. APPEALS
[65.738] Object of admitting additional evidence

The basic principle of the admission of additional evidence is that the person seeking the admission of additional
evidence should be able to establish that such additional evidence could not have been adduced at the first
instance with the best efforts. Secondly, the party affected by the admission of additional evidence should have an
opportunity to rebut it. Thirdly, the additional evidence must be relevant for the determination of the issue1.
1 Shivajirao Nilangekar Patil v Dr Mahesh Madhav Gosavi, AIR 1987 SC 294 [LNIND 1986 SC 503]at 304 : (1987) 1
SCC 227 [LNIND 1986 SC 503] at 243 : (1987) 2 SCJ 1. As to the circumstances when additional evidence may be
allowed see [65.739].
End of Document
[65.739] Circumstances in which additional evidence may be admitted
26. APPEALS

The parties to an appeal are not entitled to produce additional evidence, whether oral or documentary, in the
appellate court1. However, the appellate court may allow additional evidence or documents to be produced or
witnesses to be examined in the following circumstances2:
(1) if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have
been admitted3; or
(2) if the party seeking to produce additional evidence establishes that, notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be
produced by him at the time when the decree appealed against was passed4; or
(3) if the appellate court requires any document to be produced or any witness to be examined to enable it to
pronounce any judgment or for any other substantial cause5.
1 See [65.735].
2 Code of Civil Procedure, 1908 O XLI rule 27 (1). see also KR Mohan Reddy v Network INC, AIR 2008 SC 579 [LNIND
2007 SC 1132]: (2007) 14 SCC 257 [LNIND 2007 SC 1132].
3 Code of Civil Procedure, 1908 O XLI rule 27 (1)(a). See further [65.740]. As to thepower to accept additional evidence
see [65.741].
4 Code of Civil Procedure, 1908 O XLI rule 27 (1)(aa). See Billa Jagan Mohan Reddy v Billa Sanjeeva Reddy, (1994) 4
SCC 659 [LNIND 1994 SC 1448] : [1994] 1 SCR 429 [LNIND 1994 SC 1448]; Land Acquisition Officer, City
Improvement Trust Board, Bangalore v H Narayanaiah, AIR 1976 SC 2403 [LNIND 1976 SC 264]: (1976) 4 SCC 9
[LNIND 1976 SC 264] : [1977] 1 SCR 178 [LNIND 1976 SC 264]; Natha Singh v Financial Commissioner, Taxation,
Punjab, AIR 1976 SC 1053 [LNIND 1976 SC 89]at 1056–1057 : (1976) 3 SCC 28 [LNIND 1976 SC 89] at 31 : [1976] 3
SCR 620 [LNIND 1976 SC 89].
5 Code of Civil Procedure, 1908 O XLI rule 27 (1)(b).
Page 2 of 2
End of Document
[65.740] Improper refusal by trial court to admit evidence
26. APPEALS

Where the lower court has refused to admit evidence which ought to have been admitted, the appellate court may
admit such evidence at the appellate stage1. The expression “ought to have been admitted” means ought to have
been admitted in the exercise of discretion2. The appellate court before admitting additional evidence must,
therefore, be satisfied that the trial court was not justified in refusing to admit such evidence3.
Thus, where the lower court has refused to take certain evidence on the ground of its late production, such rejection
cannot be said to be unjustified and the appellate court should not interfere with the discretion of the lower court
and admit such evidence4.
1 Code of Civil Procedure, 1908 O XLI rule 27 (1)(a); see [65.739]; and Official Liquidator v Raghava Desikachar, AIR
1974 SC 2069 [LNIND 1974 SC 247]at 2073–2074 : (1974) 2 SCC 741 [LNIND 1974 SC 247] at 746–747 : [1975] 1
SCR 890; Shivajirao Nilangekar Patil v Dr Mahesh Madhav Gosavi, AIR 1987 SC 294 [LNIND 1986 SC 503]at 304 :
(1987) 1 SCC 227 [LNIND 1986 SC 503] at 243 : (1987) 2 SCJ 1. As to thepower to accept additional evidence see
[65.741].
2 Sumitra v Maharaju, AIR 1963 HP 21 [LNIND 1962 HP 13]at 23; Natha Singh v Financial Commissioner, Taxation,
Punjab, AIR 1976 SC 1053 [LNIND 1976 SC 89]at 1056–1057 : (1976) 3 SCC 28 at 31 : [1976] 3 SCR 620 [LNIND
1976 SC 89]; Arjan Singh v Kartar Singh, AIR 1951 SC 193 [LNIND 1951 SC 15]at 195 : [1951] SCR 258 [LNIND 1951
SC 15] : (1951) SCJ 274 [LNIND 1951 SC 15].
3 Note 1; see also Billa Jagan Mohan Reddy v Billa Sanjeeva Reddy, (1994) 4 SCC 659 [LNIND 1994 SC 1448] : (1994)
3 JT 339.
4 Pramod Kumari Bhatia v Om Prakash Bhatia, AIR 1980 SC 446 [LNIND 1979 SC 453]at 448 : (1980) 1 SCC 412
[LNIND 1979 SC 453] at 416 : (1980) 2 SCJ 30 [LNIND 1979 SC 453]; Shiv Chander Kapoor v Amar Bose, AIR 1990
SC 325 [LNIND 1989 SC 595]: (1990) 1 SCC 234 [LNIND 1989 SC 595] : [1989] Supp 2 SCR 299 (FB); Roop Chand v
Gopi Chand Thela, (1989) 2 SCC 383 [LNIND 1989 SC 188]; Soonda Singh v Rameshwarlal, AIR 1975 SC 479 :
(1975) 3 SCC 698.
Page 2 of 2
End of Document
[65.741] Power to accept additional evidence
26. APPEALS

An appellate court has power, subject to such conditions and limitations as may be prescribed, to take additional
evidence or to require such evidence to be taken1.
The legitimate occasion for the application of this power is when, on the examination of the evidence as it stands,
some inherent lacuna or defect becomes apparent2, not where a discovery is made outside the court of such
evidence and an application is made to import it3.
However, in appropriate cases, subsequent events may be considered by the court by permitting a party to adduce
additional evidence4. Similarly, the appellate court may admit additional evidence “for any other substantial cause”5.
This expression must be liberally construed so as to advance substantial justice between the parties6. Thus, the
additional evidence may be required to enable the court to pronounce judgment or for any other substantial cause,
but in either case it must be the court which requires it7. The defect may be pointed out by a party or a party may
move the court to supply the defect but the requirement must be the requirement of the court upon its appreciation
of the evidence as it stands8.
However, a case cannot be remanded9 for allowing a party to adduce additional evidence when such evidence was
available and yet not produced in the lower court10. The true test, therefore, is whether the appellate court is able to
pronounce judgment on the material before it without taking into consideration the additional evidence sought to be
adduced11. However, the provision is not intended to allow a litigant who has been unsuccessful in the lower court
to patch up the weak parts of his case and to fill in the gaps12. It does not entitle the appellate court to let in fresh
evidence only for the purpose of pronouncing judgment in a particular way13.
1 Code of Civil Procedure, 1908 section 107 (1)(d); see [65.717]. As to the improper refusal to admit evidence by trial
court see [65.740].
2 See the Code of Civil Procedure, 1908 O XLI rule 27 (1)(b); and [65.739].
Page 2 of 2
3 Kessowji Issur v Great Indian Peninsula Rly, (1907) ILR 31 Bom 381 : 34 IA 115, PC; Arjan Singh v Kartar Singh, AIR
1951 SC 193 [LNIND 1951 SC 15]at 195 para 7 : [1951] SCR 258 : (1951) SCJ 274 [LNIND 1951 SC 15].
4 Gulabbai v Nalin Narsi Vohra, AIR 1991 SC 1760 [LNIND 1991 SC 298]: (1991) 3 SCC 483 [LNIND 1991 SC 298].
5 Code of Civil Procedure, 1908 O XLI rule 27 (1)(b). See K Venkataramiah v A Seetharama Reddy, AIR 1963 SC 1526
[LNIND 1963 SC 39]at 1530 : [1964] 2 SCR 35 [LNIND 1963 SC 39] : (1964) 1 SCJ 37 [LNIND 1963 SC 39]; State of
Uttar Pradesh v Manbodhan Lal Srivastava, AIR 1957 SC 912 [LNIND 1957 SC 93]at 915 : [1958] SCR 533 [LNIND
1957 SC 93] : (1958) SCJ 150 [LNIND 1957 SC 93].
6 K Venkataramiah v A Seetharama Reddy, AIR 1963 SC 1526 [LNIND 1963 SC 39]at 1530 : [1964] 2 SCR 35 : (1964)
1 SCJ 37 [LNIND 1963 SC 39]; State of Uttar Pradesh v Manbodhan Lal Srivastava, AIR 1957 SC 912 [LNIND 1957
SC 93]at 915 : [1958] SCR 533 : (1958) SCJ 150 [LNIND 1957 SC 93].
7 Premier Automobiles v Kabirunissa, AIR 1991 SC 91 : (1991) Supp 2 SCC 282.
8 See note 6 above.
9 As to the remand of a case see [65.723] and following.
10 Koyappathodi Ayisha v State of Kerala, AIR 1991 SC 2027 [LNIND 1991 SC 377]: (1991) 4 SCC 8 [LNIND 1991 SC
377] (11).
11 Arjan Singh v Kartar Singh, AIR 1951 SC 193 [LNIND 1951 SC 15]at 195 : [1951] SCR 258 [LNIND 1951 SC 15] :
(1951) SCJ 274 [LNIND 1951 SC 15]; Natha Singh v Financial Commissioner, Taxation, Punjab, AIR 1976 SC 1053
[LNIND 1976 SC 89]at 1056– 1057 : (1976) 3 SCC 28 [LNIND 1976 SC 89] at 31 : [1976] 3 SCR 620 [LNIND 1976 SC
89].
12 State of Uttar Pradesh v Manbodhan Lal Srivastava, AIR 1957 SC 912 [LNIND 1957 SC 93]at 915 : [1958] SCR 533
[LNIND 1957 SC 93] : (1958) SCJ 150 [LNIND 1957 SC 93]; Sunder Lal & Sons v Bharat Handicrafts Pvt Ltd, AIR 1968
SC 406 [LNIND 1967 SC 276]at 409 : [1968] 1 SCR 608 [LNIND 1967 SC 276] : (1968) 2 SCJ 105 [LNIND 1967 SC
276].
13 Municipal Corp of Greater Bombay v Pancham, AIR 1965 SC 1008 [LNIND 1964 SC 249]: [1965] 1 SCR 542 [LNIND
1964 SC 249] : (1966) 1 SCJ 49 [LNIND 1964 SC 249]; Syed Abdul Khader v Rami Reddy, AIR 1979 SC 553 [LNIND
1978 SC 352]: (1979) 2 SCC 601 [LNIND 1978 SC 352]; State of Gujarat v Mahendra Kumar, (2006) 9 SCC 772
[LNIND 2006 SC 260] : AIR 2006 SC 1864 [LNIND 2006 SC 260].
End of Document
[65.742] Mode of taking additional evidence
26. APPEALS
[65.742] Mode of taking additional evidence

Wherever additional evidence is allowed to be produced1, the appellate court may either take such evidence or
direct the court from whose decree the appeal is preferred or any other subordinate court, to take such evidence
and to send it when taken to the appellate court2. Where additional evidence is directed or allowed to be taken, the
appellate court must specify the points to which the evidence is to be confined and record the points so specified on
its proceedings3.
1 See [65.739].
2 Code of Civil Procedure, 1908 O XLI rule 28. As to the recording of reasons upon the admitting of additional evidence
see [65.743].
End of Document
[65.743] Recording of reasons
26. APPEALS

Whenever the appellate court admits additional evidence, it must record the reasons for doing so1. This statutory
provision is intended to keep a clear record of what weighed with the appellate court in allowing the additional
evidence to be produced. Again, where a further appeal lies from the decision of the appellate court, the recording
of reasons is necessary so as to enable the higher court to decide whether the discretion has been judicially
exercised by the court below. The omission to record reasons, therefore, must be treated as a serious defect. The
provision, however, is directory and not mandatory. The failure to record reasons does not make the evidence
inadmissible if the reception of such evidence is otherwise justified2.
The only effect of the failure to comply with this requirement is to throw on the party the burden of proof as to
requirement of additional evidence3.
1 See the Code of Civil Procedure, 1908 O XLI rule 27 (2); see K Venkataramiah v A Seetharama Reddy, AIR 1963 SC
1526 [LNIND 1963 SC 39]at 1530 : [1964] 2 SCR 35 [LNIND 1963 SC 39] : (1964) 1 SCJ 37 [LNIND 1963 SC 39];
Land Acquisition Officer, City Improvement Trust Board, Bangalore v H Narayanaiah, AIR 1976 SC 2403 [LNIND 1976
SC 264]at 2414 : (1976) 4 SCC 9 [LNIND 1976 SC 264] at 20 : [1977] 1 SCR 178 [LNIND 1976 SC 264]. Gopal Singh v
Jhakri Rai, (1885) ILR 12 Cal 37; Manmohan Das v Ramdei, AIR 1931 PC 175 : 134 IC 669; Biradh Mal v Prabhabati
Kunwar, AIR 1939 PC 152 : 181 IC 311. As to the mode of taking additional evidence see [65.742].
2 K Venkataramiah v A Seetharama Reddy, AIR 1963 SC 1526 [LNIND 1963 SC 39]at 1530 : [1964] 2 SCR 35 : (1964)
1 SCJ 37 [LNIND 1963 SC 39].
3 Krishna Reddi v Ramireddi, AIR 1954 Mad 848 [LNIND 1953 MAD 274]at 851 : (1954) 2 Mad LJ 559.
End of Document
[65.744] Scope and object of power
Court > (vi) Modification of Decree
26. APPEALS
(vi) Modification of Decree

An appellate court has power to make whatever order it thinks fit not only between the appellant and the respondent
but also as between respondent and respondent1. An appellate court may not only grant or refuse relief to the
appellant by allowing or dismissing the appeal, it may give such other relief to any of the respondents as the case
may require2. The only constraint on the power of the court is that the parties before the lower court should also be
present before the appellate court3.
The underlying object of this provision is to enable the appellate court to do “full and complete” justice between the
parties. The court must not refuse to exercise the discretion on mere technicalities. No hard and fast rule may be
laid down as to the circumstances in which the power may or may not be exercised and each case must be decided
on its own facts4.
1 See the Code of Civil Procedure, 1908 O XLI rule 33; and [65.717]. As to the conditions for modification of decrees see
[65.747].
2 Rameshwar Prasad v Shambehari Lal Jagannath, AIR 1963 SC 1901 [LNIND 1963 SC 141]: [1964] 3 SCR 549
[LNIND 1963 SC 141]; Bihar Supply Syndicate v Asiatic Navigation, AIR 1993 SC 2054 [LNIND 1993 SC 216]: (1993)
2 SCC 639 [LNIND 1993 SC 216] at 650–651 : (1993) 2 JT 396 [LNIND 1993 SC 216]; Choudhary Sahu (decd) by lrs v
State of Bihar, AIR 1982 SC 98 [LNIND 1981 SC 463]at 99–100 : (1982) 1 SCC 232 [LNIND 1981 SC 463] at 235–237
: [1982] 2 SCR 178 [LNIND 1981 SC 463]; Korsing v Deokabai, AIR 1976 SC 634 [LNIND 1975 SC 509]: (1976) 1
SCC 383 [LNIND 1975 SC 509]; Ramchand v Janki Ballabhji, AIR 1970 SC 532 [LNIND 1969 SC 222]: (1969) 2 SCC
313 [LNIND 1969 SC 222]; Giasi Ram v Ramji Lal, AIR 1969 SC 1144 [LNIND 1969 SC 110]: (1969) 1 SCC 813
[LNIND 1969 SC 110]; Nirmala Bala Ghose v Balai Chand Ghose, AIR 1965 SC 1874 [LNIND 1965 SC 108]: [1965] 3
SCR 550 [LNIND 1965 SC 108]; Panna Lal v State of Bombay, AIR 1963 SC 1516 [LNIND 1963 SC 36]: [1964] 1 SCR
980 [LNIND 1963 SC 36].
[LNIND 1963 SC 141].
Page 2 of 2
4 Mahant Dhangir v Madan Mohan, AIR 1988 SC 54 [LNIND 1987 SC 717]at 58 : (1987) Supp SCC 528 at 534–535;
Chaya v Bapu Saheb, (1994) 2 SCC 41 [LNIND 1993 SC 68] : [1993] 1 SCR 286 [LNIND 1993 SC 68]; see also
Tummatta v Venka Narasingarao, AIR 1978 SC 725 : (1979) 1 SCC 166.
End of Document
[65.745] Modification of decree
26. APPEALS
[65.745] Modification of decree

The appellate court has power to pass any decree and make any order which ought to have been passed or made
and to pass or make such further or other decree or order as the case may require, and this power may be
exercised by the court notwithstanding that the appeal is as to a part only of the decree and may be exercised in
favour of all or any of the respondents or parties, although such respondents or parties may not have filed any
appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are
passed in one suit, be exercised in respect of all or any of the decrees although an appeal may not have been filed
against such decrees1.
Thus where A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against
X and X appeals and A and Y are respondents, then if the appellate court decides in favour of X, it has power to
pass a decree against Y2.
1 Code of Civil Procedure, 1908 O XLI rule 33; see [65.717]. As to the modification of decrees in case of cross-objections
see [65.746].
2 Code of Civil Procedure, 1908 O XLI rule 33 illustration; Brij Mohan Lal v Raj Kishore, AIR 1959 Punj 555 : (1959) 61
Punj LR 484; Krishna Reddi v Ramireddi, AIR 1954 Mad 848 [LNIND 1953 MAD 274]: (1954) 2 Mad LJ 559; Harihar
Prasad v Balmiki Prasad, AIR 1975 SC 733 [LNIND 1974 SC 403]: (1975) 1 SCC 212 [LNIND 1974 SC 403] : (1975) 2
SCR 932 [LNIND 1974 SC 403].
End of Document
[65.746] Modification of decree in case of cross-objections
26. APPEALS

Generally, cross-objections1 must be directed against the appellant, and only in exceptional cases may they be filed
by one respondent against other respondents. The power of an appellate court to grant relief to parties to a suit who
have not appealed or filed cross-objections2, on the other hand, enables the court to make any order as the case
may require to meet the ends of justice not only between the appellant and respondent but also between a
respondent and a co-respondent3. The appellate court can exercise the power of modification even if the appeal is
only against a part of the decree of the lower court4. The appellate court can exercise this power in favour of all or
any of the respondents although such respondents may not have filed cross-appeals or cross-objections.
The sweep of the power is wide enough to determine any question not only between an appellant and a
respondent, but also between a respondent and a co-respondent. The appellate court can pass any decree or order
which ought to have been passed in the circumstances of the case. The appellate court may pass such other
decree or order as the case may require. The words “as the case may require”5 have been put in wide terms to
enable the appellate court to pass any order or decree to meet the ends of justice6.
1 As to cross-objections see [65.713] and following.

2 See [65.717], [65.744].
3 Mahant Dhangir v Madan Mohan, AIR 1988 SC 54 [LNIND 1987 SC 717]: (1987) Supp SCC 528. As to the
modification of decrees generally see [65.745].
4 In the Code of Civil Procedure, 1908 O XLI rule 33.
5 In the Code of Civil Procedure, 1908 O XLI rule 33.
6 Mahant Dhangir v Madan Mohan, AIR 1988 SC 54 [LNIND 1987 SC 717]at 58 para 15 : (1987) Supp SCC 528; Bihar
Supply Syndicate v Asiatic Navigation, AIR 1993 SC 2054 [LNIND 1993 SC 216]: (1993) 2 SCC 639 [LNIND 1993 SC
216] at 650–651 : (1993) 2 JT 396 [LNIND 1993 SC 216]; Chhaya v Bapu Saheb, (1994) 2 SCC 41 [LNIND 1993 SC
68].
Page 2 of 2
End of Document
[65.747] Conditions for modification of decree
26. APPEALS
[65.747] Conditions for modification of decree

For the appellate court to exercise its power to modify a decree1, the following conditions should be satisfied: (1) the
parties before the lower court should be there before the appellate court; and (2) the question raised must properly
arise out of the judgment of the lower court. If these two requirements are there, the appellate court may consider
any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the
appeal2.
1 Under the Code of Civil Procedure, 1908 O XLI rule 33: see [65.744] and following.
2 Mahant Dhangir v Madan Mohan, AIR 1988 SC 54 [LNIND 1987 SC 717]at 58 para 15 : (1987) Supp SCC 528 at 534–
535; K Muthusamy v N Palaniappa, AIR 1998 SC 3118 [LNIND 1998 SC 787]: (1998) 7 SCC 327 [LNIND 1998 SC
811]; Banarsi v Ram Phal, AIR 2003 SC 1989 [LNIND 2003 SC 207]: (2003) 9 SCC 606 [LNIND 2003 SC 207].
End of Document
[65.748] Period of limitation
26. APPEALS

Though the powers conferred on the appellate court are very wide, they have to be applied with care and caution to
cases where interference in favour of the appellant necessitates interference also with a decree which has, by
acceptance or acquiescence, become final so as to enable the court to adjust the rights of the parties1.
The Code of Civil Procedure, 1908 does not confer an unrestricted right to re-open decrees which have become
final merely because the appellate court does not agree with the opinion of the trial court2. Similarly, the
discretionary power cannot be exercised to nullify the effect of the abatement of an appeal3. As the power is
exceptional in nature and is in derogation of the general principle that a party cannot avoid a decree against him
without filing an appeal or objection, it must be exercised with circumspection.
While exercising the extraordinary power, the court must not lose sight of other provisions of the Code nor of other
laws, that is, the law of limitation or the law of court fees4. Such a power is to be exercised in exceptional cases
when its non-exercise will lead to difficulties in the adjustment of rights of the various parties5.
1 Mahant Dhangir v Madan Mohan, AIR 1988 SC 54 [LNIND 1987 SC 717]: (1987) Supp SCC 528; Nirmala Bala Ghose
v Balai Chand Ghose, AIR 1965 SC 1874 [LNIND 1965 SC 108]: [1965] 3 SCR 550 [LNIND 1965 SC 108].
[LNIND 1963 SC 141]; Banarsi v Ram Phal, AIR 2003 SC 1989 [LNIND 2003 SC 207]: (2003) 9 SCC 606 [LNIND 2003
SC 207].
3 Choudhary Sahu (decd) by LRs v State of Bihar, AIR 1982 SC 98 [LNIND 1981 SC 463]at 99–100 : (1982) 1 SCC 232
[LNIND 1981 SC 463] at 236–237; Banarsi v Ram Phal, AIR 2003 SC 1989 [LNIND 2003 SC 207]: (2003) 9 SCC 606
[LNIND 2003 SC 207].
4 Giani Ram v Ramji Lal, AIR 1969 SC 1144 [LNIND 1969 SC 110]at 1147 : (1969) 1 SCC 813 [LNIND 1969 SC 110].
5 Rameshwar Prasad v Shambehari Lal Jagannath, AIR 1963 SC 1901 [LNIND 1963 SC 141]at 1908 para 17 : [1964] 3
SCR 549 [LNIND 1963 SC 141]. See Harihar Prasad v Balmiki Prasad, AIR 1975 SC 733 [LNIND 1974 SC 403]at
Page 2 of 2
749–750 : [1975] 1 SCR 212; Nirmala Bala Ghose v Balai Chand Ghose, AIR 1965 SC 1874 [LNIND 1965 SC 108]:
[1965] 3 SCR 550 [LNIND 1965 SC 108].
End of Document
[65.749] Generally
Court > (vii) Other Powers
26. APPEALS
(vii) Other Powers
[65.749] Generally
An appellate court has the same powers and must perform, as nearly as may be, the same duties as are conferred
and imposed by the Code of Civil Procedure, 1908 on courts of original jurisdiction in respect of suits instituted
therein1.
This provision is based on the general principle that an appeal is a continuation of a suit and therefore an appellate
court can do, while the appeal is pending, what the original court can do while the suit is pending2.
Thus, an appellate court is empowered to re-appreciate the evidence, to add, transpose or substitute parties, to
permit the withdrawal of proceedings, to return the plaint or memorandum of appeal for presentation to the proper
court, to allow amendment in pleadings, to take notice of subsequent events, to take into consideration a change in
the law and to apply the existing law, to order restitution, and to enlarge the time for doing certain acts3.
1 Code of Civil Procedure, 1908 section 107 (2); see [65.717]. As to other duties of an appellate court see [65.750] and
following.
2 R S Lala Praduman Kumar v Virendra Goyal (decd) by lrs, AIR 1969 SC 1349 [LNIND 1969 SC 113]at 1351 : (1969) 1
SCC 714 [LNIND 1969 SC 113] at 717; Ramakutty v Avara, AIR 1994 SC 1699 [LNIND 1994 SC 147]: (1994) 2 SCC
642 [LNIND 1994 SC 147] at 645; Nair Service Society Ltd v K C Alexander, AIR 1965 SC 1165 [LNIND 1954 SC 52]:
[1968] 3 SCR 163 [LNIND 1968 SC 41].
3 R S Lala Praduman Kumar v Virendra Goyal (decd) by lrs, AIR 1969 SC 1349 [LNIND 1969 SC 113]at 1351 : (1969) 1
SCC 714 [LNIND 1969 SC 113] at 717; Ramakutty v Avara, AIR 1994 SC 1699 [LNIND 1994 SC 147]: (1994) 2 SCC
642 [LNIND 1994 SC 147] at 645; Nair Service Society Ltd v K C Alexander, AIR 1965 SC 1165 [LNIND 1954 SC 52]:
[1968] 3 SCR 163 [LNIND 1968 SC 41]; see also Ramesh Kumar v Kesho Ram, AIR 1992 SC 700 : (1992) Supp 2
SCC 623; Qudrat Ullah v Bareilly Municipality, AIR 1974 SC 396 [LNIND 1973 SC 374]at 404 : (1974) 1 SCC 202
[LNIND 1973 SC 374] at 217; Quasim v Manohar, (1981) 3 SCC 36 [LNIND 1981 SC 213] at 45–47; Dosabai v
Mathuradas, AIR 1980 SC 1334 [LNIND 1980 SC 201]at 1339–1340 : (1980) 3 SCC 545 [LNIND 1980 SC 201] at
552–553); Narhari Shivram Shet Narvekar v Pannalal Umediram, AIR 1977 SC 164 [LNIND 1976 SC 15]at 167 :
(1976) 3 SCC 203 [LNIND 1976 SC 15] at 207 : [1976] 3 SCR 149 [LNIND 1976 SC 15].
Page 2 of 2
[65.749] Generally
End of Document
[65.750] To decide appeal in accordance with law
Vol 5) 2nd ed > 26. APPEALS > (1) FIRST APPEALS FROM DECREES > E. Duties of Appellate
Court
26. APPEALS
E. Duties of Appellate Court
[65.750] To decide appeal in accordance with law

It is the duty of an appellate court to decide an appeal in accordance with the law after considering the evidence as
a whole. The judgment of the appellate court must clearly show that it has applied its judicial mind to the evidence
as a whole1.
The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the
parties to the appeal agree as to the form which the decree in appeal must take or as to the order to be made in
appeal, the appellate court may pass a decree or make an order accordingly2.
1 State of Tamil Nadu v S Kumaraswami, AIR 1977 SC 2026 [LNIND 1976 SC 110]: (1977) 4 SCC 602 : (1976) 2 Mad
LJ (SC) 1. As to the powers of the appellate court see [65.717]. As to appeals to the Supreme Court see [65.755].
End of Document
[65.751] Appreciation of evidence
Court
26. APPEALS

Since appeal is a continuation of a suit and re-hearing of the suit1, the appellate court can re-appreciate the entire
evidence, oral as well as documentary, and can arrive at its own conclusion.
At the same time, the appellate court must bear in mind a finding recorded by the trial court on oral evidence. It
should remember that the trial court had the advantage and opportunity of watching the demeanour of witnesses
and hence the trial court’s conclusions should not normally be disturbed by the appellate court.
An appellate court has the same powers as an original court, but they have to be exercised with care, caution and
circumspection. When a finding of fact has been arrived at by the trial court appreciating oral evidence, it should not
be disturbed unless the approach of the trial court in the appraisal of the evidence is materially erroneous, contrary
to well established principles of law or perverse2.
The following factors should normally be considered before an appellate court reverses a finding of fact recorded by
the trial court:
(1) it applied its mind to the reasons given by the trial court;
(2) it had no advantage of seeing and hearing the witnesses; and

(3) it recorded cogent and convincing reasons for disagreeing with the trial court3.
1 See [65.749].
2 See the Code of Civil Procedure, 1908 section 107 (2); and [65.749]. See Produman Kumar v Virendra, AIR 1969 SC
1349 [LNIND 1969 SC 113]: (1969) 1 SCC 714 [LNIND 1969 SC 113]; Madhusudan Das v Narayanibai, AIR 1983 SC
114 [LNIND 1982 SC 177]: (1983) 1 SCC 35 [LNIND 1982 SC 177]; T D Gopalan v Commissioner HR and CE,
Madras, AIR 1972 SC 1716 [LNIND 1972 SC 293](1719) : (1972) 2 SCC 329 [LNIND 1972 SC 293] : [1973] 1 SCR
584 [LNIND 1972 SC 293]. As to additional evidence and the mode of its taking see [65.750].
3 Madhusudan Das v Narayani Bai, AIR 1983 SC 114 [LNIND 1982 SC 177]: (1983) 1 SCC 35 [LNIND 1982 SC 177] at
39–40. See Sarju Pershad Ramdeo Sahu v Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 [LNIND 1950 SC 41]:
[1950] SCR 781 [LNIND 1950 SC 41]; Radha Prasad v Gajadhar Singh, AIR 1960 SC 115 [LNIND 1959 SC 153](118);
Page 2 of 2
see also S V R Mudaliar v Rajabu, AIR 1995 SC 1607 [LNIND 1995 SC 513]: (1995) 4 SCC 15 [LNIND 1995 SC 513];
Mohd Salamatullah v Govt of Andhra Pradesh, AIR 1977 SC 1481 : (1977) 3 SCC 590; Gajanan v Dattaji, AIR 1995 SC
2284 [LNIND 1995 SC 709]: (1995) 5 SCC 347 [LNIND 1995 SC 709].
End of Document
Court
26. APPEALS

Alhough an appellate court has power to dismiss an appeal summarily, such power should be exercised sparingly
and in exceptional cases and after recording reasons1.
If such appellate court is other than a High Court, the requirement of recording reasons is mandatory2. However, in
the case of a High Court also, it is appropriate if it passes a speaking order while dismissing an appeal in limine3.
An appellate court is required to record the reasons in support of its judgment4; and where the appeal is heard by
more judges than one, any judge dissenting from the judgment of the court may state his reasons for the decision or
order which he thinks should be passed on the appeal5.
Normally, even the Supreme Court also should follow the practice of giving reasons; but, in exceptional cases, the
Supreme Court may depart from this course and pronounce an operative part of the order without a reasoned
judgment. However, it cannot be forgotten that the Supreme Court is the final court and no further appeal lies
against such order. The reasons, in these circumstances, may not be said to be essential6.
1 See the Code of Civil Procedure, 1908 O XLI rule 11; and [65.690].
3 As to the appreciation of evidence see [65.751].
4 Code of Civil Procedure, 1908 O XLI rule 31 (c); see [65.695].
6 See State of Punjab v Jagdev Singh Talwani, AIR 1984 SC 444 [LNIND 1983 SC 377]: (1984) 1 SCC 596 [LNIND
1983 SC 377] : [1984] 2 SCR 50 [LNIND 1983 SC 377].
End of Document
[65.753] Mode of expression of reasons
Court
26. APPEALS
[65.753] Mode of expression of reasons

Where the appellate court agrees with the view of the trial court on the evidence, it need not re-state the effect of
the evidence and re-state the reasons given by the trial court. An expression of general agreement with the reasons
given by the trial court will ordinarily suffice1.
1 Girijanandini v Bijendra Narain, AIR 1967 SC 1124 [LNIND 1966 SC 149]at 1129 : [1967] 1 SCR 93 [LNIND 1966 SC
149]; State of Karnataka v Hemareddy, AIR 1981 SC 1417 [LNIND 1981 SC 44]at 1420 : (1981) 2 SCC 185 [LNIND
1981 SC 44] at 188– 189.
End of Document
[65.754] Non interference with decree for technical errors
Court
26. APPEALS
[65.754] Non interference with decree for technical errors

No decree may be reversed or substantially varied, nor may any case be remanded1, 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 court2. However, this does not apply to non-joinder
of a necessary party3.
A decision which is otherwise correct on the merits and is within the jurisdiction of the court cannot be upset merely
for technical and immaterial defects4.
The underlying object is to prevent technicalities from overcoming the ends of justice and from operating as a
means of circuity of litigation. When a case has been tried by a court on the merits and the judgment has been
rendered, it should not be liable to be reversed purely on technical grounds, unless it has resulted in a failure of
justice5.
1 As to remand see [65.723] and following.

2 Code of Civil Procedure, 1908 section 99.
3 Code of Civil Procedure, 1908 section 99 proviso.
4 Muhammad Husain v Babu Kishva, AIR 1937 PC 233 at 234; Kalipada Das v Bimal Kirshna Sen Gupta (decd) by lrs,
AIR 1983 SC 876 : (1983) 1 SCC 14; Virendra Singh v Vimal Kumar, AIR 1976 SC 2169 [LNIND 1976 SC 319]at 2172
: (1977) 1 SCC 718 [LNIND 1976 SC 319] at 722; Kiran Singh v Chaman Paswan, AIR 1954 SC 340 [LNIND 1954 SC
67]at 342 : [1955] 1 SCR 117 [LNIND 1954 SC 67] : (1954) SCJ 514 [LNIND 1954 SC 67].
5 Kiran Singh v Chaman Paswan, AIR 1954 SC 340 [LNIND 1954 SC 67]: [1955] 1 SCR 117 [LNIND 1954 SC 67] :
(1954) SCJ 514 [LNIND 1954 SC 67].
End of Document

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Date and Time: 22 September 2019 22:44:00 IST

Job Number: 98055851

1. [65.655] Meaning of “appeal”

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

A. Meaning and Prerequisites

[65.655] Meaning of “appeal”

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

A. Meaning and Prerequisites

[65.656] Appeals from original decrees

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

A. Meaning and Prerequisites

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

A. Meaning and Prerequisites

[65.658] Appeal is continuation of suit

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

[65.659] Who may appeal

Ordinarily, the following persons may prefer an appeal:

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

[65.660] Who cannot appeal

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

[65.661] Addition of respondent

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

[65.662] Waiver of right of appeal

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

(i) Comparative Analysis of Legislation

[65.663] Indian law

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

(i) Comparative Analysis of Legislation

[65.664] English law

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

(i) Comparative Analysis of Legislation

[65.665] American law

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

(ii) Appeal Distinguished from Suit and Revision

[65.666] Appeal and suit

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

(ii) Appeal Distinguished from Suit and Revision

[65.667] Appeal and revision

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

[65.668] General principles

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

[65.669] Objection by respondent

1 Code of Civil Procedure, 1908 O XLI rule 22 (1) see [65.714]-[65.720].

6 Code of Civil Procedure, 1908 O XLI rule 22 (5).

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed

(1) FIRST APPEALS FROM DECREES

[65.670] First appeal

65 - Halsbury's Laws of India (Civil Procedure, Vol 5) 2nd ed