The Civil Procedure Code governs the procedure that is to be followed in a typical civil

litigation. It is this 'Act' which bestows an appeal to a litigant against an order or a judgment
passed by a civil court. It is this Act which provides the first appeal under Sec.96 and second
appeal under Sec.100.
Section 96 of Code of Civil Procedure, 1908 provides for appeal from original decree. But no
appeal lies from a decree passed by the court with the consent of the parties. First appeal is a
valuable right to be heard both on the question of law and on facts and the judgement in the
first appeal must address itself to all the issues of law and fact and decide it by giving reasons
in support of the findings. A right of appeal must exist either under the specific provisions of
a statute or under the rules having the force of law.
An appeal in common legal usage denotes challenging an order passed by an inferior
authority or court.
Appeal means removal of a cause from inferior to a superior court for the purpose of a testing
soundness of decision of an inferior court. Every person has given right of appeal against
decree. However, right of appeal is not an inherent right. Rather it can only be availed where
it is expressly granted by law. Appeal lies against a decree and not against a judgment. Rights
of appeal are substantive right and they are not mere matters 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
fo the decision or at the date of filling of the appeal.
The right to file an appeal is a vested right and it accrues to a party on the date of institution
of the suit. The right is governed by the law prevailing at the date of institution of the suit. So
far as execution is concerned, the right to appeal accrues to a litigant on the date of filing of
the execution application. An execution application is not a continuation of suit.
It is separate from and independent of a suit. In a matter of execution, the right of appeal is
governed in accordance with law as it is on the date of institution of filing of the execution
application.
An appellate jurisdiction is the authority of a superior Court to review, reverse, correct or
affirm the decision of an inferior court. An appeal is considered as continuation of the
original suit rather than as the inception of a new action.

A litigant may have a right to institute a suit unless specifically barred, but there is no right of
appeal unless conferred. For filing a suit, right is not required to be conferred by any statute
whereas since the right of appeal is the right from the statutory provision by which it is
created, such a right has got to be conferred.

RIGHT OF APPEAL
The expression 'appeal' has not been defined any where under the Code of Civil Procedure,
1908. However, it may be defined as "the judicial examination of decision by a Higher Court
of the decision of an inferior court".
Every appeal has three basic/essential elements:
I.
II.
III.

an adjudication of a suit by a court;

an aggrieved person (not necessarily a party to the proceedings);
a review body ready and willing to entertain a appeal.

Section 96 of the Code of Civil Procedure, 1908 distinguishes the cases fit as well as unfit
for appeal. It does not enumerate the person who may file appeal. Thus, as per the section,
the right to appeal is recognized:
(a) from every decree passed by court of original jurisdiction;
(b) from an original decree which is passed ex parte, i.e., without hearing the
respondent(s);
The vested right of appeal is destroyed when:
(a) the original decree is shown to have been passed with the consent of parties. The
rational behind this is, it creates an estoppel between the parties as a judgment on consent.
(b) decree passed is in petty suits where the amount of value of suit does not exceed ten
thousand rupees.

A right of appeal is not a natural inherent right, rather appeal is a creature of statute and there
is no right to appeal unless clearly granted and in express terms by statute. In other words, a
right of appeal infers in no one and therefore an appeal for its maintainability must have the
clear authority of law. The right of appeal, which is a statutory right, can be conditional and
qualified. It cannot be said that such a law would be violative of article 14 of the
Constitution. If the statute does not create any right of appeal, no appeal can be filed. The
right of appeal inheres in no one and, therefore, for the maintainability of an appeal there
must be authority of law.
It is a vested right and accrues to the litigant and exists as on and from the date the lis
commences and although it may be actually exercised when the adverse judgment is

pronounced. A single right of appeal is more or less a universal requirement. It is based on the
principle that all men are fallible and judges are human beings who may commit a mistake.
An appeal is a continuation of a suit. An appeal from an original decree is called a first
appeal. An appeal from an appellate decree is called a second or special appeal. The Appellate
Court in case of first appeal can re-examine the questions of fact and law and may even reappreciate evidence. The powers of first Appellate Courts are coextensive with those of Civil
Courts of original jurisdiction. First appeal may be filed on a question of law or on a mixed
question of fact and law which arise in the case.

The following persons are entitled to file appeal under section 96 of the Code of Civil
Procedure, 1908:
(i) A party to a suit, who is aggrieved or adversely affected by the decree, or if such party is
dead his legal representative.
(ii) A person claiming under a party to the suit a transfer of the interests of such party, who so
far as such interest is concerned, is bound by the decree, provided his name is entrusted on
the record of the suit.
(iii) A guardian ad litem appointed by the Court in a suit by or against a minor.
(iv) Any other person, with the leave of the Court, if he is adversely affected by the decree.
The ordinary rule is that only a party to a suit adversely affected by the decree or any of his
representative in interest may file an appeal. But a person who is not a party to a decree or
order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it.
Maintainability of Appeal
(i) Appeal against preliminary decree.-All decrees are appealable unless barred by the Code of Civil Procedure, 1908. Therefore, an
appeal lies against preliminary decree as final decree but as a machinery for the
implementation of a preliminary decree. Failure to appeal against preliminary decree
precludes the aggrieved party from challenging the final decree. Hence, no appeal lies against
the final decree, where no appeal was filed against preliminary decree.

(ii) Appeal against judgment.-Appeal against judgment is not maintainable under the Code of Civil Procedure, 1908.
However, the aggrieved party, may file appeal against judgment, if a decree is not drawn up
by the Court.
(iii) Appeal against ex parte decree.-An appellant in an appeal against ex parte decree can question the validity of order and plead
to adjourn and proceed with the suit since the corrective jurisdiction of the Appellate Court
includes consideration of procedural errors1;. The Code prescribes for setting aside of the ex
parte decree under Order IX, rule 13 and when a plea under the said provision fails, an appeal
is specifically provided under clause (d) of Order XLIII, rule 1 of the Code of Civil
Procedure, 1908 against an order of a Trial Court refusing to set aside ex parte decree.
(iv) Appeal against 'Finding' and 'Dead Person'.-A 'Finding' recorded by a court of law may or may not amount to a 'Decree' or an 'Order'
where such a finding does not amount to a 'Decree' or an 'Order', no appeal lies against such
adverse finding. Similarly, no appeal can be instituted against 'Dead person'.
Sections 100 to 103, 107, 108 and Order XXXII of the Code of Civil Procedure, 1908 deal
with second appeals. According to section 100 of the Code of Civil Procedure, 1908:
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the
time being in force, an appeal shall lie to the High Court from every decree passed in appeal
by any court subordinate to the High Court, if the High Court is satisfied that the case
involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.
1 Muttangi Ranga Nayakamma v. WKV Mahalakhmi, MANU/AP/0096/1972 : AIR
1972 AP 117

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power
of the Court to hear, for reasons to be recorded, the appeal on any other substantial question
of law, not formulated by it, if it is satisfied that the case involves such question.
Section 100 of the Code of Civil Procedure as amended by the Amendment Act, 1976, has
drastically changed and considerably curtailed the scope of second appeal. Under the old
section a second appeal was maintainable on any of the three grounds set out in clauses (a),
(b) or (c) which were liberally interpreted but as of now, the scope and ambit of the
jurisdiction of High Court in cases of second appeal is very much narrowed down. From
section 100 the following consequences ensue:
(i) The High Court must be satisfied that the case involved a Substantial question of Law
[Section 100(1)].
(ii) The Memorandum of appeal must precisely state such question [Section 100(3)].
(iii) The High Court at the time of admiring the appeal should formulate such question
[Section 100(4)].
(iv) The appeal shall be heard only on that question [Section 100(5)].
(v) At the hearing of appeal, the respondent can agree that the case does not involve such
question [Section 100(5)].
(vi) The High Court is, however, empowered to hear the second appeal on any other
substantial question of law, not formulated by it, if it is satisfied that the appeal involves such
question. The High Court however, has to record reasons for doing so. [Proviso to section
100(5)].
Following are the conditions wherein second appeal specifically does not lie after the
amendments of 1976 and 2002 of the Code of Civil Procedure:
(i) No second appeal shall lie except on the ground mentioned in section 100 [Section 101].
(ii) No second appeal shall lie from any decree when the subject-matter of the original suit is
for recovery of money not exceeding twenty-five thousand rupees.

(iii) It is note worthy that no second appeal lies from an order; it is lies only from a decree.
Further, the decree against which the second appeal has to be filed should itself be an
appellate decree and such decree against which the second appeal is to be filed must have
been passed by a court inferior to the High Court before which the second appeal is to be
filed.

LEGAL PROVISIONS RELATED TO APPEAL

Part 7 of CPC consisting of Sections 96 to 112 as well as Order 41 to 45 CPC deal with
appeals.
Out of these Sections 100 to 103 CPC deal with second appeals before High Courts whereas
Sections 109 to 112 CPC deal with appeals to the Apex Court.
Order 42 deals with second appeals to High Court whereas Order 45 deal with appeals to
Supreme Court.
Section 109 CPC empowers the Supreme Court to hear appeal from any civil proceeding
before a High Court, subject to any limitation prescribed by the constitution, and if the High
Court concerned certifies that the case involves a substantial question of general importance
or that the High Court considers that the question involved in the case needs to be decided by
the Supreme Court.
However, Section 112 CPC saves the power vested in the Supreme Court under Article 136 of
the Constitution. Article 136 of the Constitution provides that the Supreme Court may hear
any appeal passed by any Court or Tribunal in India if the Supreme Court considers it just
and proper.
Thus, irrespective of the savings under Section 112, CPC, the Supreme Court has power to
hear an appeal from any order of any Court or Tribunal, whether the order is of civil,
criminal, constitutional, administrative, or revenue jurisdiction otherwise.
Section 104 of the Code of Civil Procedure, 1908 provides that,
(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in
the body of this Code or by any law for the time being in force, from no other orders:
(ff) an order under section 35A;
(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature
referred to in section 91 or section 92, as the case may be;
(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or
detention in the civil prison of any person except where such arrest or detention is in
execution of a decree; (i) any order made under rules from which an appeal is expressly
allowed by rules:
Provided that no appeal shall lie against any order specified in clause (ff) save on the ground
that no order, or an order for the payment of a less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this section.

Order 45 provides rules for laying appeals before Supreme Court.

Section 100 CPC is positive in wording that a Second appeal lies on a question of law from
an appellate decree. In fact, the law is pronounced in negative terms in this regard that no
Second Appeal lies on question of fact. In practice, when a Second Appeal is filed before the
High Court, it should be shown to the court that there is a substantial question of law
involved in the case before the Second Appeal could be admitted for hearing.

Order 42 CPC prescribes the rules for Second Appeals.

Under the Amendment Act 22 of 2002, where a single Judge of High Court disposed of an
appeal either from an appellate decree or original decree, no further appeal lies.
But, the said bar does not apply to proceedings under Article 226 or 227 of the Constitution.
Section 102 has also been amended to the effect that no second appeal lies against a decree
where the value of the subject matter of the suit for recovery of money does not exceed
Rs.25,000/-.
In mofussils, the Courts come across only appeals from decrees or orders. They are provided
by Section 96 to 99-A & 104, 108 CPC as well as Order 41 & 43 CPC.
General Rule is that every decree is appealable. But, appeal does not lie from a decree passed
on the consent of parties on both sides. Further, in small cause cases, no appeal lies except on
a question of law, if the value of the case is less than Rs. 10,000/-. However, appeal may lie
from ex parte decree.

Section 97 envisages the principle of estoppel. It provides that if no appeal is preferred from a
preliminary decree, the preliminary decree cannot be assailed in an appeal preferred from a
final decree. In other words, the appellant shall confine himself the question involved in the
final decree only, if appeal had not been preferred from a preliminary decree.

The Code provides a bar in respect of appeals regarding procedural matters. Section 99 CPC
ordains that no appeal can be allowed merely because there was procedural irregularity
including mis-joinder or non-joinder of parties or causes of action: the embargo does not
apply to questions of non-joinder of necessary parties.

This is so since the non-joinder of a necessary party hits the case at the roots. Section 99-A
CPC further provides that an order passed under Section 47 CPC (arising in execution
proceedings) cannot be interfered in appeal even on grounds of error, defect or irregularity
unless it is shown that the order has prejudicially affected the decision of the case.

While Sections 96 to 99-A CPC deal with appeals from decrees, i.e., in suits, Section 104
CPC provides for appeals from four varieties of orders and also provides that appeals can be
preferred from any other order if so provided in Order 43 Rule 1 CPC lists out appealable
orders in respect of which also appeals can be filed.

Appellate courts decide the case finally, or remand the appeal to trial court, or frame issues
and refer them for trial or take additional evidence, [Section 107 CPC]. These powers are in
addition to the powers that a trial court possesses.

MODEL FORMAT
Appeal to Supreme Court against the Decree and the Judgement
In the High Court of Judicature at.....
In re Petition for leave to Supreme Court
Civil Miscellaneous Petition No....of...in....No...of.....
Between
1) Mr. Ram lal(descriptin and residence)
2) Mr. Radhe lal
And
1) Mr. Jag Mohan
2) Mr. Gyan mohan
PETITION UNDER ORDER XLV, RULES 2/3 OF THE CODE OF CIVIL PROCEDURE
FOR GRANT OF LEAVE TO APPEAL TO SUPREME COURT AGAINST THE DECREE
AND THE JUDGEEMNT
Dated......passed on......
By Honble Mr. Justice.....in...of...
The petiotioners aforesaid state as under:
1. That they filed a suit( being no..... of....) in the court of...... at.... for recovery of
possession of.... and for ancillary reliefs which was decreed by Shri....Sub Judge
at.....on.....with costs.
2. That the respondents ( defendants) filed an appeal (being no. ......of....) in the High
Court at....which was accepted by Honble Mr. Justice.... and Hobble Mr. Justice....
on... with costs throughout and the suit of the petitioners was dismissed.
3. (i) that the case involves a substantial questions of law of general importance; and
(ii) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court;
(iii) that further a substantial question of law as to the interpretation of the
Constitution of India was wrongly decided.
4. That the value of the subject matter of the suit in the court of first instance was...
5. That the value of the subject matter in dispute in appeal is rs.............

6. That the judgement of the Appellate Court does not affirm the dicision of the court
immediately below.
7. It is accordingly prayed that for the reasons and grounds stated above in the
circumstances of the case, leave to appeal to the Supreme Court be granted.
Place...

Advocate

Date....

for the Petitioner.

1. Ram Lal
2. Radhe lal

OPENING SHEET FOR CIVIL APPEALS (ORDER XLI, RULE 1, CIVIL

PROCEDURE CODE, 1908)
OPENING SHEET FOR CIVIL APPEALS
(ORDER XLI, RULE 1 CODE OF CIVIL PROCEDURE, 1908)
IN THE HIGH COURT OF DELHI
JUDICIAL DEPARTMENT
(CIVIL APPELLATE SIDE)
REGULAR___________________APPEAL NO. _____________________ OF 20___
ORIGINAL SUIT FIRST APPEAL
DATE OF FILING APPEAL IN HIGH
COURT
VALUE FOR PURPOSES OF
JURISDICTION

VALUE FOR PURPOSES OF

COURT-FEE
AMOUNT OF COURT-FEE ON
PETITION
INSTITUTED DECIDED INSTITUTED DECIDED
COURT DATE COURT DATE COURT DATE COURT DATE
Presented by ______________________________________ (Name of Party,
Advocate or Agent filing Appeal)
Appellant (Plaintiff or Defendant) ________________________________________
Respondent (Plaintiff or Defendant) ______________________________________
Order of first Court and Date ___________________________________________
Appellate Court and Date ______________________________________________
Confirming, Reversing or Modifying ______________________________________
Original Claim as given in the Plaint ______________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
Claim in Appeal (stating whether the Appeal is from a decree/order) ___________
__________________________________________________________________
Enactment and Section under which the Appeal lies _________________________

REGULAR FIRST APPEAL IN THE HIGH COURT TO SET ASIDE DECREE

In the High Court of judicature for the State of.... at....
Xx (descrptn and residence)

Appellant
Versus

Xy

Respondent

Regular First Appeal from the decree and judgement dated..... of....sub-judge...in Suit
No......of......to set aside the said decree.
Xx
Appellant
Advocate
For the petioner.

REGULAR SECOND APPEAL IN THE HIGH COURT TO SET ASIDE DECREE

In the High Court of Judicature for the State of.....at......
Ab(descrptn and residence)

Appellant
Versus

Cd

Respondent

Regular Second Appeal from the decree and judgement dated...... of.... District Judge .. in
Civil appeal No....... of....... reversing the judgment of and decree of ....... SubJudge....dated.... and to restore the judgement and decree of.....

Dated..................

Advocate
For the Appellant.

FIRST APPEAL IN THE HIGH COURT TO SET ASIDE ORDER

In the High Court of Judicature for the State of.......at..
Bb )d nr)

Appellant
Versus

Cc

Respondent

First appeal from the order of......at.....dated.....in suit no....of.....to set aside the said order.
Dated..............

Advocate
For the Appellant

CONCLUSION
The right of appeal is a substantive right. It is not a procedural right, consequently, if right of
appeal exists on the date of the decree, it cannot be taken away latter by enactment, though
new enactment can change the forum. For instance, instead of providing appeal to a civil
court, appeal can be provided to lie to a Tribunal.

Revision is provided under Section 115 CPC. Revision lies only to High Courts when
subordinate court either has failed to excercise the jurisdiction vested in it or have acted on
the jurisdiction illegally, or has excercised jurisdiction not vested in law and Courts inferior
to High Courts do not have power of Revision. There is distinction between Appeal and
Revision.
Apart from the Scopes of Revision being limited vis-a-vis appeals, an appeal is a continuation
of the proceedings. Consequently an appellate authority has the power to review the
evidence.
A revision lies when no appeal is provided.
The remedy of appeal is a creation of statute and is not an inherent right of a person. If the
Legislature in its wisdom thinks in a particular case that no appeal should be provided, it
cannot be held that the legislation is bad.
By the Civil Procedure Code (Amendment) Act, 1976, the definition of the word decree has
been amended and the determination of any question under S. 47, C.P.C. has been taken out
of the definition of decree. In the circumstances, an order determining a question under S.
47, C.P.C. is no longer a decree. Since such an order is no longer a decree under the Code as
amended, no appeal lies against the said order.
An appeal shall be accompanied by a memorandum of grounds together with judgment and
decree as envisaged under Order XLI, Rule 1.