UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

B.Com., LL.B.(Hons.) TAXATION LAWS

(BATCH – 2)
SEMESTER - 4
ACADEMIC YEAR: 2017-18 SESSIONS: JANUARY-
MAY
PROJECT
FOR
Civil Procedure Code

LLBL131

ON
“APPEAL”

Under the Supervision of: Mr.GAURAV MITTAL

NAME - NITISH KUMAR NAVEEN

SAP ID - 500054889
ROLL NO - 063
 PROJECT
Introduction

An appeal is a creature of the statute and there is no right of appeal unless it is given
clearly and in express terms. A right to appeal is not a natural or an inherent right .It is
a vested right and accrues to the litigant and exists as on and from the date the lies
commences. The expression “appeal” has not been defined in the code, but it may be
defined as the judicial examination of the decision by a higher court of the decision of
an inferior court1 . It means removal of a cause from an inferior to a superior court for
the purpose of testing the soundness of the decision of the inferior court. It is thus a
remedy provided by law for getting the decree of the lower court set aside. In other
words, it is a complaint made to the higher court that the decree passed by the lower
court is unsound and wrong. The right to appeal must, at this juncture, be compared
and distinguished from a right to file a suit.2 As said, the right to appeal is a statutory
right and any such right must have the express authority of a law. The right to sue or
to file a suit is, however, an inherent right and no express authorization from any
statute may be required to institute a suit. It is enough that no statute expressly bars
the institution of such suit. The appellate court would give weight to that finding, but
where disbelief is based upon comparison of the evidence given, the appellate court
can arrive at an independent decision.3

It is “a right of entering a superior court and invoking its aid and interposition to
redress an error of the court below”. 4 Right of appeal is a statutory and substantive
right. It is not merely a matter of procedure. Right of appeal is governed by the law
prevailing at the date of the suit and not by law that prevails at the date of the decision
or at the date of filling of the appeal. This vested right of appeal can be taken away
only by a subsequent enactment if it so provides expressly or by necessary implication
and not otherwise. Every appeal has three basic elements:

1. A decision (usually a judgment of a court or the ruling of an administrative

authority).
2. A person aggrieved (who is often, though not necessarily, a party to the
original proceeding).
3. A reviewing body ready and willing to entertain an appeal.

1
C.K Thakker., Civil Procedure Code, 3rd Edition, Eastern book Company, p - 260
2
(1931-32) 59 IA 283 : AIR 1932 PC 165
3
Akbar vs. W. 8 DLR (PC) 19
4
Attorney General v. Sillem,(1864) 10 HLC 704 at p.715:11 ER 1200 at 1209
History of Appeal5

Appellate courts and other systems of error correction have existed for many
millennia. During the first dynasty of Babylon, Hammurabi and his governors served
as the highest appellate courts of the land. Ancient Roman law employed a complex
hierarchy of appellate courts, where some appeals would be heard by the emperor.
Additionally, appellate courts have existed in Japan since at least the Kamakura
Shogunate (1185–1333 CE). During this time, the Shogunate established hikitsuke, a
high appellate court to aid the state in adjudicating lawsuits.In the Eighteenth century,
William Blackstone observed in his Commentaries on the Laws of England that
appeals existed as a form of error correction in the common law during the reign of
Edward III of England. Although some scholars argue that "the right to appeal is itself
a substantive liberty interest," the notion of a right to appeal is a relatively recent
advent in common law jurisdictions. In fact, commentators have observed that
common law jurisdictions were particularly "slow to incorporate a right to appeal into
either its civil or criminal jurisprudence. For example, the United States first created a
system of federal appellate courts in 1789, but a federal right to appeal did not exist in
the United States until 1889, when Congress passed the Judiciary Act to permit
appeals in capital cases. Two years later, the right to appeals was extended to other
criminal cases, and the United States Courts of Appeals were established to review
decisions from district courts. Some states, such as Minnesota, still do not formally
recognize a right to criminal appeals.

Procedure Related to Appeal6

The appeal being the continuation of the suit is held not without any reason; it may be
examined in the light of the following propositions:

1. The appellate court has all the powers and has to do all those things necessary that a
trial court has and has to do. In this sense, even when the case goes on appeal, it is just
the name that has undergone a change; the form and substance still remain the same.

5
Paul Du Plessis, Borkowski's Textbook on Roman Law 82 (2015).
6
Order XLI of the Code of Civil Procedure,1908
2. In the same vein as above, the appellate court has to do all that has been done by the
trail court in that particular case, and then either agree or disagree from the trial court.

3. Hence, even the appellate court has to write a judgement and pass a decree. In the
event of the court upholding the lower court’s decision, the appellate court may write
down the same decree, without changing it, and the decree will now be deemed to
have been that of the appellate court.

4. Finally, the suit is not deemed to be “finally concluded” for matters of res judicata
till the appeals are over. This implies that it is deemed that the same suit is progress
even while the appeals are on. It is only when the courts have finally come to a
conclusion, after all possible appeals have been used and tried by the appellant, that
the suit is said to have been conclusively decided.

The above said propositions point out, in essence, what is implied when it is said that
the appeal is a continuation of the suit. The various provisions relating to the appeals
have already been stated in the introduction to this work. A detailed look into these
provisions at this juncture becomes pertinent.

Right of Appeal

A right of appeal is not an inherent or natural right.7Sometimes, appeal is a matter of

right; sometimes it depends upon discretion of the court to which such appeal lies. In
the latter category of cases, the right is to apply to the court to grant leave to file an
appeal; for instance, an appeal to the Supreme Court under Article 136 of the
Constitution of India. If a particular Act does not provide a right to appeal, it cannot
be declared ultra vires only on that ground. 8 Right of appeal is a statutory and
substantive right. It is not merely a matter of procedure. Right of appeal is governed
by the law prevailing at the date of the suit and not by law that prevails at the date of
the decision or at the date of filling of the appeal. This vested right of appeal can be
taken away only by a subsequent enactment if it so provides expressly or by necessary
implication and not otherwise.
7
Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393 at p. 397; Rami Manprasad v. Gopichand (1973) 4 SCC 89 at p. 92:
AIR 1974 SC 1126 at p. 1129
8
Kartar Singh v. State of Punjab, (1994) 3 SCC 569
In Anant Mills Co. Ltd. v. State of Gujarat,9 speaking for the Supreme Court,
Khanna, J. said:“It is well-settled by several decisions of this court that the rights of
appeal is a creature of a statute and there is no reason why the legislature while
granting the right cannot impose conditions for the exercise of such right so long as
the conditions are not so onerous as to amount to unreasonable restrictions rendering
the right almost illusory.”

Who may Appeal

Section 96 of the Code recognizes the right of appeal from every decree passed by any
court exercising original jurisdiction. It does not refer to enumerate the persons who
may file an appeal. But before an appeal can be filed under this section, two
conditions must be satisfied:

1) The subject-matter of the 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) The party appealing must have been adversely affected by such determination.

The ordinary rule is that only a party to a suit adversely affected by the decree or any
of his representatives-in-interest may file an appeal. But a person who is not a party to
a decree or order may, with the leave of the court, prefer an appeal from such decree
or order if he is either bound by the order or is aggrieved by it or is prejudicially
affected by it.10

It was observed in the case of Krishna Chandra Golder v. Mahesh Chandra Sahu , “the
question who may appeal is determinable by the common sense of consideration that
there can be no appeal where there is nothing to appeal about.” 11From the above
general principles, the following persons are entitled to appeal under this section: Any
party to the suit, who is adversely affected by the decree or the transferee of interest of
such party, has been adversely affected by the decree provided his name was entered

9
(1975) 2 SCC 175 at p. 202
10
Biscttits vs Prince Hotel, l2 BLC 169
11
Krishna Chandra Golder v. Mahesh Chandra Sahu
into record of suit. 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 suit. A guardian ad litem
appointed by the court in a suit by or against a minor. Any other person, with the leave
of the court, if he is adversely affected by the decree.

Appeal by one Plaintiff against another Plaintiff

As a general rule, one plaintiff cannot file an appeal against a co-plaintiff. But where
the matter in controversy in the suit forms subject-matter of dispute between plaintiffs
inter se, an appeal can be filed by one plaintiff against another plaintiff.12

Appeal by one Defendant against another Defendant

The principle which applies to filing of appeal by one plaintiff against another
plaintiff equally applies to an appeal by one defendant against another defendant. It is
only where the dispute is not only between plaintiffs and the defendants but between
defendants inter se and such decision adversely affects one defendant against the other
that appeal.

Who Cannot Appeal

If a party agrees not to appeal or waives his right to appeal, he cannot file an appeal
and will be bound by an agreement if otherwise such agreement is valid. Such an
agreement must be clear and unambiguous. Whether a party has or has not waived his
right of appeal depends upon the facts and circumstances of each case. 13 Similarly,
where a party has accepted the benefits under a decree of the court, he can be stopped
from questioning the legality of the decree.14

As Scrutton, L.J. observed, “It startles me that a person can say that judgment is
wrong and at the same time accept the payment under the judgment as being right.In
my opinion, you cannot take the benefit of a judgment as being good and then appeal

12
Vithu v. Bhima, ILR (1891) 15 Bom 145
13
ProtapChunder v. Arathoon, ILR (1882) 8 Cal 455
14
Dexters Ltd. v. Hill Crest Oil Co., (1926) 1 KB 348
against it as being bad.” Finally, the vested right of appeal is destroyed if the court to
which an appeal lies is abolished altogether without any forum being substituted in its
place.

Agreement not to Appeal

A right of appeal is a statutory right. If a statute does not confer such right, no appeal
can be filed even with the consent or agreement between the parties.

But an agreement between the parties not to file an appeal is valid if it is based on
lawful or legal consideration and if otherwise it is not illegal.

Appeal: Nomenclature not Material

The use of expression “appeal”, “first appeal” or “second appeal” is neither material
nor decisive. It is the substance and not the form which is relevant.

In Ramchandra Goverdhan Pandit v. Charity Commr15, a first appeal was filed in the
High Court against an order passed by the Commissioner on an application under
Section 72 of the Bombay Public Trusts Act, 195. The Supreme Court held that the
appeal before the single judge of the High Court was in substance and in reality
Second Appeal and Letters Patent Appeal was not maintainable against the
“judgment” by the Single judge.

Appeal Against Ex Parte Decree: Section 96(2)

The defendant, against whom an ex parte decree has been passed, has the following
remedies available to him:

(1)   Apply to the court by which such decree is passed to set it aside: Order 9 Rule 13

(2)   Prefer an appeal against such decree: Section 96(2) (or to file a revision under
Section 115 where no appeal lies)

(3)   Apply for review: Order 47 Rule 1

(4)   File a suit on the ground of fraud

15
(1987) 3 SCC273: AIR 1987 SC 1598
The above remedies are concurrent and they can be prosecuted simultaneously or
concurrently. As has been rightly said:

“Where two proceedings or two remedies are provided by a statute, one of them must
not be taken as operating in derogation of the other.”16

In an appeal against an ex parte decree, the appellate court is competent to go into the
question of the propriety or otherwise of the ex parte decree passed by the trial court.

No Appeal against Consent Decree: Section 96(3)

Section 96(3) declares that no appeal shall lie against a consent decree. This provision
is based on the broad principle of estoppels. It presupposes that the parties to an action
can, expressly or impliedly, waive or forgo their right of appeal by any lawful
agreement or compromise or even by conduct. The consideration for the agreement
involved in a consent decree is that both the sides give up their right of appeal.17

Once the decree is shown to have been passed with the consent of the parties, Section
96(3) becomes operative and binds them. It creates an estoppel between the parties as
a judgment on contest.18 Where there is a partial compromise and adjustment of a suit
and a decree is passed in accordance with it, the decree to that extent is a consent
decree and is not appealable. This provision, however, does not apply where the
factum of compromise is in dispute or the compromise decree is challenged on the
ground that such compromise had not been arrived at lawfully.19

Appeal against Preliminary Decree

An appeal lies against a preliminary decree. 20 A preliminary decree is as much a final

decree. In fact, a final decree is but machinery for the implementation of a preliminary
decree. Failure to appeal against a preliminary decree, hence, preludes the aggrieved
party from challenging the final decree. Where an appeal is filed against a preliminary
16
Ajudhia Prasad v. Balmukund, ILR (1866) 8 All 354 (FB)
17
Katikara Chintamani Dora v. Guntreddi Annamanaidu, (1974) 1 SCC 567 at pp.
584-85
18
Thakur Prasad v. Bhagwan Das, AIR 1985 MP 171
19
Banwari Lal v. Chando Devi, (1993) 1 SCC 581
20
Phoolchand v. Gopal Lal, AIR 1963 SC 992 at pp. 994-95
decree and is allowed and the decree is set aside, the final decree falls to the ground as
ineffective since there is no preliminary decree to support the final decree.

No Appeal against Final Decree where no Appeal against Preliminary Decree

In suits which contemplate the making of two decrees-a preliminary decree and a final
decree-the decree which would be executable would be the final decree. But the
finality of a decree or a decision does not necessarily depend upon it being executable.
The legislature in its wisdom has thought that suits of certain types should be decided
in stages and though the suit in such cases can be regarded as fully and completely
decided only after a final decree is made, the decision of the court arrived at the earlier
stage also has a finality attached to it. It would be relevant to refer to s. 97 of the Code
of Civil Procedure which provides that where a party aggrieved by a preliminary
decree does not appeal from it, it is precluded from disputing its. Correctness in any
appeal which may be preferred from the final decree. This provision thus clearly
indicates that as to the matters covered by it, a preliminary decree is regarded as
embodying the final decision of the court passing that decree.21

Appeal against judgment

The Code provides an appeal from a decree and not from a judgment. An aggrieved
party, however, may file an appeal against the judgment, if a decree is not drawn up
by the court.

Appeal against dead person

No appeal can be instituted against a dead person. Such an appeal, therefore, can be
regarded as a “stillborn” appeal. In such cases, an application can be made praying for
the substitution of the legal representatives of the deceased respondent who died prior
to the filing of the appeal. In that case, the appeal can be taken to have been filed on
the date of the application for substitution of the legal representatives. If, by that time,
the appeal is time-barred, the appellant can seek condonation of delay.22

21
Venkata Reddi and Others v. Pothi Reddi, 1963 AIR 992, 1963 SCR Supl. (2) 616
22
Bank of Commerce Ltd. v. Protap Chandra Ghose, AIR 1946 FC
Form of Appeal

What to accompany memorandum

(1) Every appeal shall 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 shall be accompanied. By a copy of the decree appealed
from and (unless the Appellate Court dispenses therewith) of the judgment on which it
is founded:

[Provided that where two or more suits have been tried together and a common
judgement has been delivered therefor and two or more appeals are filed against any
decree covered by that judgement, whether by the same appellant or by different
appellants, the Appellate Court may dispense with the filing of more than one copy of
the judgement.]

(2) Contents of memorandum- The memorandum shall set forth, concisely and under
distinct heads, the grounds of objection to the decree appealed from without any
argument or narrative; and such grounds shall be numbered consecutively.

 
[(3) Where the appeal is against a decree for payment of money, the appellant shall,
within such time as the Appellate Court may allow, deposit the amount disputed in the
appeal or furnish such security in respect thereof as the Court may think fit.]23

Grounds which may be taken in appeal

The appellant shall not, except by leave of the Court, urge or be heard in support of
any ground of objection set forth in the memorandum of appeal, but the Appellate
Court, in deciding the appeal, shall not be confined to the grounds of objections set
forth in the memorandum of appeal or taken by leave of the Court under this rule:

Provided that the Court shall 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 ground.

23
Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
Rejection or amendment of memorandums

 (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore
prescribed, 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 there.

 (2) Where the Court rejects any memorandum, it shall record the reasons for such
rejection.

(3) Where a memorandum of appeal is amended, the Judge, or such officer as he

appoints in this behalf, shall sign or initial the amendment.

Application for condonation of delay

(1) When an appeal is presented after the expiry of the period of limitation specified
therefor, it shall be accompanied by an application supported by affidavit setting forth
the facts on which the appellant relies to satisfy the Court that he had sufficient cause
for Pot preferring the appeal within such period.

 (2) If the Court sees no reason to reject the application without the issue of a notice to
the respondent, notice hereof shall be issued to the respondent and the matter shall be
finally decided by the Court before it proceeds to deal with the appeal under rule 11 or
rule 13, as the case may be.

(3) Where an application has been made under sub-rule (1) the Court shall not make in
order fact 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 under rule 11, decide to hear the
appeal.24

Compare between Right to suit and right to appeal25

There is a fundamental difference between suit and appeal and the same is being
explained properly by J. Chandrachudin Ganga Bai v. Vijay Kumar in the following
words:“There is a basic distinction between the right of suit and the right of appeal.

24
Rule 3-A
25
Dayawati v. Inderjit
There is an inherent right in every person to bring a suit of a civil nature and unless
the suit is barred by statute one may, at one’s peril, bring a suit of one’s choice. It is
no answer to a suit howsoever frivolous the claim, that the law confers no right to sue.
A suit for its maintainability requires no authority of law and it is enough that no
statute bars the suit. But the position in regard to appeals is quite the opposite. The
right of appeal inheres in no one and therefore an appeal for its maintainability must
have the clear authority of law.”

Appeal and Revision

The revisional jurisdiction of a High Court is a part and parcel of the appellate
jurisdiction of the High Court. When the aid of the High Court is invoked on the
revisional side it is done because it is a superior court and it can interfere for the
purpose of rectifying the error of the court below. It is only one of the modes of
exercising power conferred by the Statute; basically and fundamentally it is the
appellate jurisdiction of the High Court which is being invoked and exercised in a
wider and larger sense.26

The distinction between an appeal and a revision is a real one. A right of appeal
carries with it a right of rehearing on law as well as fact, unless the statute conferring
the right of appeal limits the rehearing one way or the other. The power to hear a
revision is generally given to a superior Court so that it may satisfy itself that a
particular case has been decided according to law. 27 Revisional jurisdiction is not wide
enough to make the High Court a second court of first appeal. 28 The High Court
cannot, in exercise of revisional powers, substitute its own view for the view taken by
a subordinate court.29

26
Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, AIR 1970 SC 1,
(1970) 72 BOMLR 179, (1969) 2 SCC 74, 1970 1 SCR 322
27
Hari Shankar v. Rao Girdhari Lal Chowdhury, 1963 AIR 698, 1962 SCR Supl. (1)
933
28
Dattopant v. Vitthalrao, (1975) 2 SCC 246: AIR 1975 SC 1111
29
Girdharbhai v. Saiyed Mohd. Mirasaheb Kadri, (1987) 3 SCC 538 at p. 551
In State of Kerala v. K.M. Charia Abdullah & Co. 30, Court has highlighted the
difference between the two jurisdictions in the following words: “There is an essential
distinction between an appeal and a revision. The distinction is based on the
differences implicit in the said two expressions. An appeal is a continuation of the
proceedings; in effect the entire proceedings are before the appellate authority and it
has power to review the evidence subject to the statutory limitations prescribed. But in
the case of a revision, whatever powers the reversional authority may or may not
have; it has not the power to review the evidence unless the statute expressly confers
on it that power.”

In Associated Cement Co. Ltd. v. Keshavanand31, the Supreme Court stated, “It is trite
legal position that appellate jurisdiction is coextensive with original court's
jurisdiction as for appraisal and appreciation of evidence and reaching findings on
facts and appellate court is free to reach its own conclusion on evidence untrammeled
by any finding entered by the trial court. Reversional powers on the other hand belong
to supervisory jurisdiction of a superior court. While exercising reversional powers the
court has to confine to the legality and propriety of the findings and also whether the
subordinate court has kept itself within the bounds of its jurisdiction vested in it.
Though the difference between the two jurisdictions is subtle, it is quite real and has
now become well recognised in legal provinces.”It is submitted that the following
observations of Hidayatullah, J. in Hari Shankar v. Rao Girdhari Lal Chowdhury 32 laid
down correct law on the point. Speaking for the majority, His Lordship concluded:

“The distinction between an appeal and a revision is a real one. A right of appeal
carries with it a right of rehearing on law as well as fact, unless the statute conferring
the right of appeal limits the rehearing in some way as, we find, has been done is
second appeals arising under the Code of Civil Procedure. The power to hear a
revision is generally given to a superior Court so that it may satisfy itself that a
particular case has been decided according to law. Under s. 115 of the Code of Civil
Procedure. the High Court's power are limited to see whether in a case decided, there
30
AIR 1965 SC 1585
31
(1998) 1 SCC 687: SIR 1998 SC 596
32
AIR 1963 SC 698
has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction
where it did, or there has been material irregularity or illegality in the exercise of that
jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other
acts, the power is not so limited, and the High Court is enabled to call for the record of
a case to satisfy itself that the decision therein is according to law and to pass such
orders in relation to the case, as it thinks fit.”

First Appeal and Second Appeal

The First Appeal can be admitted on the grounds – (1) question of fact; and also (2)
question of law. The Second Appeal can be admitted only on the point of ‘substantial
question of law’. The First Appeal can be entertained by subordinate Courts to District
Judge’s Court and to High Courts. Example: An appeal from the District Munsiff
Magistrate s Court or Subordinate Judge’s Court to the District Judge.

The Second Appeal can only be entertained by the High Court. Sections 96 to 99-A,
107 and Order 41 deals with First Appeals. Sections 100 to 103 and Order 42 deal
with Second Appeal. The Memorandum of first appeal must set out the grounds of
objections to the decree appealed from. Since the second appeal is maintainable only
when it involves a substantial question of law, a memorandum of second appeal must
precisely state such question. It need not set out the grounds of objections to the
decree appealed from.

Conversion of Appeal into Revision

If an appeal is preferred in a case in which no appeal lies, the court may treat the
memorandum of appeal s a revision or vice versa. 33 Since there is no specific
provision for such conversion, the court would be justified in invoking the inherent
powers under Section 151 and in passing appropriate orders as may be necessary in
the interests of justice. There is nothing like a period of limitation for making an
application for conversion of an appeal into revision or vice versa. All that is required

33
Reliable Water Supply Service of India v. Union of India, (1972) 4 SCC 168
to be seen is if the appeal or the revision had been filed within the time prescribed for
the filing of the appeal, or the revision, as the case may be.34

Stay by Appellate Court35

(1) An appeal shall not operate as a stay of proceedings under a decree or order
appealed from except so far as the Appellate Court may order, nor shall 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 stay of execution of such
decree.

An order by the Appellate Court for the stay of execution of the decree shall be
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 shall, 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
instance.36

(2) Stay by Court which passed the decree- Where an application is made for stay of
execution of an appeal able decree before the expiration of the time allowed for
appealing there from, the Court which passed the decree may on sufficient cause being
shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2)
unless the Court making it is satisfied-

(a) that substantial loss may result to the party applying for stay of execution unless
the order is made;

(b) that the application has been made without unreasonable delay; and

34
Bahori v. Vidya Ram, AIR 1978 All 299
35
Abu vsSujayat. 3l DLR (AD) 326
36
Dev,anvsBangaldesh. 43 DLR 221
 (c) that security has been given by the applicant far the due performance of such
decree or order as may ultimately be binding upon him.

(4) [Subject to the provisions of sub-rule (3)], the Court may make an ex parte order
for stay of execution pending the hearing of the application.

(5) Notwithstanding anything contained in the foregoing sub-rules, where the

appellant fails to make the deposit or furnish the security specified in sub-rule (3) of
rule 1, the Court shall not make an order staying the execution of the decree.

Security in case of order for execution of decree appealed from 37

(1) Where an order is made for the execution of a decree from which an appeal is
pending, the Court which passed the decree shall, 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 security.

(2) 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 shall, on the application
of the judgement-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 of.

Rule 8. Exercise of powers in appeal from order made in execution of decree

The powers conferred by rules 5 and 6 shall be exercisable where an appeal may be or
has been preferred not from the decree but from an order made in execution of such
decree.

Procedure at Hearing38: Rules 16-21

(a) Right to begin: Rule 16

37
appealable . Shah vsGhulam, 19 DLR (SC) 143'
38
Shah vsGolam (Md) 52 DLR (AD) 16
(1) On the day fixed, or on any other day to which the hearing may be adjourned, the
appellant shall be heard in support of the appeal.

(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent
against the appeal and in such case the appellant shall be entitled to reply. 39

A partial decree is, in effect, a decree for the plaintiff, so far as the plaintiff's case is
accepted, as well as a decree for the defendant, so far as the plaintiff's case is
dismissed and if it is not attacked either in appeal or by way of cross objection, cannot
be challenged in the appellate court, JagarvsDhirendra. 30 DLR 240.

Review is a tool that is used by an aggrieved party, to request a court of law to take a
second look at its decision or verdict. Review is used in situations where there is no
provision for an appeal. Review is not a statutory right of the people and is considered
a discretionary right of a court as it can reject the request for a review. Review is
sought in the same law court from where the original decision came. There is no
system of a second review. Review can be undertaken suomoto by a court of law.

Appeal and Review40

 Review is mostly concerned with the correctness of the legal matters of a

decision whereas an appeal is mostly concerned with the correctness of the
decision itself.

 Review is filed in the same court whereas appeal is filed in a higher court.

 Appeal is a statutory right of the individual whereas review is a discretionary

right of the court.

39
Sk. PirvsAminuddin. 11 DLR 345
40
Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 155
Appeal and Reference41

 A right of appeal is a right conferred on the suitor, while the power of reference
is vested in the court.

 Reference is always made to the High Court, while an appeal is preferred to a

superior court which need not necessarily be High Court.

 The grounds of appeal are wider than the grounds of reference. It is made in a
pending suit, appeal or execution proceeding in order to enable the court to
arrive at a correct conclusion, while an appeal is preferred after the decree is
passed or an appealable order is made.

CONCLUSION

The expression appeal has not been defined in the Code of Civil Procedure 1908. It is
an application or petition to appeal higher Court for are consideration of the decision
of appeal lower court. It is appeal proceeding for review to be carried out by appeal
higher authority of appeal decision given by appeal lower one. In appeal is appeal
creature of statute and right to appeal is neither an inherent nor natural right.Appellant
aggrieved by appeal decree is not entitled as or right to appeal from decree. The right
to appeal must be given by statute. Section 9 confers on appeal litigant, independently
of any statute, appeal right to institute appeal suit of civil nature in appeal court of
law. So he has appeal right to apply for execution of appeal decree passed in his

41
ibid
favour, but he has no right to appeal from appeal decree or order made against him,
unless the right is clearly conferred by statute. Section 96 of the Code gives appeal
right to litigant to appeal from an original decree. Section 100 gives him appeal right
to appeal from an appellate decree in certain cases. Section 109 gives him right to
appeal to the Supreme Court in certain cases. Section 104 gives him right to appeal
from orders as distinguished from decrees.

As soon as judgment is pronounced against party, right to appeal arises. Right to

appeal doesn’t arise when adverse decision is given, but on the day suit is instituted
i.e. proceedings commenced, right to appeal get conferred. Thus, it can be said the
Right to appeal is appeal substantive right vested in parties from the date suit
instituted.

Bibliography
Book reference:

1. C. K Takwani, Civil Procedure, 7th ed., Eastern Book Company, 2014

2. Mahmud Wazedd: Hand book on code of civil procedure;

3. Mahbudul Islam: Law of Civil Procedure, ed.2nd, Volume 2 (or 21r. 60 to end)

4. Md. Abdul Halim: Text Book on Civil Procedure

5. A. M Moniruzzaman, Civil Procedure Code, 3rd ed., (Dhaka: Shams Publications,

2007
6. Mulla's Civil Procedure Code, 13th Edn, Vol. 1, p. 755.

8. Md. AbulKalam Azad, The Code of Civil Procedure, 3rd ed., (Dhaka: Lipi Law
Book House, 2008)

WEBSITES
1) www.Wikipedia.com
2) www.fhwa.dot.gov
3) www.law.utorronto.ca
4) www.lawteacher.net