Civil Procedure Code and Limitation Act- II

TUTORIAL-III

RESEARCH PAPER

A Detailed Study on Appeals from Original Decree

COURSE- BBA.LLB

SUBMITTED BY

GAURI SHARMA- 18010324050

DIVISION ‘C’

Under the Guidance of

Mr. Pankaj Umbarkar

Symbiosis Law School,Hyderabad

 INTRODUCTION

The expression ‘appeal’ is nowhere defined in the Code of Civil Procedure, 1908. But appeal
is defined in dictionary as judicial examination of the decision by a higher court of the
decision of an inferior court.1 A right to appeal is not a natural or inherent right but the right
of appeal only exists when it is clearly expressed in a given statute. Sometimes, it also
depends upon the court whether such appeal lies or not. The right to appeal is a substantive
and vested right. An appeal can also be understood as any application made by a party to an
appellate court, asking to set aside or reverse a decision of a subordinate court, is an appeal
within the ordinary acceptation of terms.2

Section 96 of the Code of Civil Procedure, 1908 ascertains the right of appeal from every
decree passed by any court exercising original jurisdiction. The subject matter of such appeal
shall be in the form of ‘decree’, which conclusively determines the right of the parties with
regard to matters in controversy. Also, the parties must be adversely affected by such
determination. The decision cannot be said to be adversely affected until and unless it
operates as res judicata against the person in any future suit. An appeal can be filed by one
plaintiff against another co – plaintiff where the matter in controversy in suit forms subject –
matter of dispute between plaintiffs inter se. The provisions of Section 96 are also against
appeal of ex-parte decree that is the remedy which is available to the defendant against the
person against whom the decree of ex- parte has been passed. This provision also lies in cases
of preliminary decree. However, there is no provision of appeal in cases of consent decree
which is governed by the rule of estoppel and also in matters of petty cases. The appellate
court has great power vested under the provisions under the Code of Civil Procedure, 1908.
The power available to such court includes the power to decide case finally and power of
remand. Therefore, the concept of original decree plays a great role even in the scenario of
modern judiciary which helps the people to approach the court of law to review the previous
decisions.

1
Concise Oxford Dictionary (2002) at p.63.
2
Namamal V. Radhey Shyam AIR 1970 Raj 26(FB):1969 (1) WLN 1
 RESEARCH OBJECTIVES

1. To understand the concept of appeal and the concept of appeals from original decree.
2. To ascertain the scope and ambit of Section 96 of Code of Civil Procedure, 1908.
3. To ascertain the application and procedure of such provision.
4. To ascertain various interpretation of provision relating to Appeal from original
decree through landmark cases and various other decided case laws.

RESEARCH QUESTIONS

1. What is the meaning, scope and effect of Section 96 of the Civil Procedure Code,
1908?
2. Whether the provision of appeal lies in matters of ex- parte, preliminary decree,
consent decree and petty cases?
3. Whether such right or substantive or statutory?
4. What is the procedure of the appeal from original decree and various other
provisions? (Order 41 of CPC)

RESEARCH METHODOLOGY

The author in the following research paper has used doctrinal type of research methodology.
The doctrinal based research is also known as library based research that contains
information in the existing documents. Such doctrine contains the use of legal prepositions,
legal concepts and principles developed on various types such as cases, statues and rules.
Such research allows the researcher to ascertain and allow the researcher to analyse the
aspects of law in other scientific and aspects and applying them in drafting the law. The type
of research data used in the research is qualitative and secondary mode of data collection, i.e.
various books, research papers, newspaper articles etc., have been used for the research.

REVIEW OF LITERATURE

In order to associate the following research paper effectively, there is a need to be familiar
with the existing laws that deals the appeal from original decree. Some research has already
been done on this matter and therefore it is reviewed as under:
The book of C.K. Takwani’s Civil Procedure with Limitation Act, 19633 prescribes the
method for enforcing rights and duties. The book is a compact one and is written in lucid
style. Various texts have been inferred in the research that describes the concept of appeal
from original decree.

The articles on Appeal from original decree4 has laid emphasis on different provisions that
are related to the appeal from original decree like the leading case laws, who can appeal,
whether such right is statutory or substantive right, etc.

The book of Mulla’s – The Code of Civil Procedure5 is also being used in the research that
describes the law of Civil Procedure in an easy language. The book helps us to understand the
Code with various provisions of the research topic such as the scope of right to appeal,
powers of court, disposal of appeal, restriction on right to appeal, etc.

CHAPTERISATION

Chapter I: Definitions and Meaning under Civil Procedure Code, 1908

1.1 Meaning of Appeal

1.2 Meaning of Appeal from Original Decree ( S.96 of CPC)
1.3 Who may appeal in Court of Law

Chapter II: Detailed Analysis of Section 96 of CPC

1.1. Scope and Ambit of Section 96

1.2. Right to appeal – Whether Substantive or Statutory Right?
1.3. Appeal against ex- pate decree
1.4. Appeal in cases of consent decree, preliminary decree and petty cases
1.5. When such right can be persuaded in Court of Law
1.6. Various other provisions under such law
1.7. Landmark cases and other cases

Chapter III: Procedure

3
C.K. Takwani, Civil Procedure with Limitation Act, 1963,Eight Edition at Pg. no. 468-482
4
Vasudha Tamrakar & Garima Tiwari, NLIU Bhopalhttp://www.legalserviceindia.com/article/l50-Appeals-
from-Original-Decrees---A-Comprehensive-Study.html
5
Dinshaw Fardunji Mulla, Justice Deepak Verma and Namit Saxena, The Code of Civil Procedure,17 th Edition
at Pg. no. 491,503,509-511.
1.1 Procedure for appeal from Original Decree
1.2 Order 41 and its provisions under CPC
1.3 Powers of the first Appellate Court – S. 107 , Rules 23- 29, 33 of CPC

Chapter IV: Conclusion

1.1 Applicability of Section 96

1.2 Utility of such provision in modern judiciary
1.3 Author’s Suggestion and Views

Chapter V: References and Bibliography