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INTRODUCTION

An appeal is not defined in the Code, however, as per the dictionary meaning it may be understood as “Judicial examination of the decision of inferior court by the higher court”. As per Mulla, “There is no definition of appeal in the Code of Civil Procedure, but their Lordship have no doubt that application 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 acceptance of the term”.

It is a complaint made to the higher court that the decree passed by the lower court is unsound and wrong. [Nagendra Nath V. Suresh Chandra, AIR 1932 PC 165 (167)].

It is a right of entering a superior court and invoking its aid and interposition to redress an error of the court below. [Attorney-General V. Sillem, (1864) 10 HLC 704 (715)].

In short, an appeal may be understood as the right of the parties to approach the higher court in case it seems to them that proper justice has not been done with them based on the facts and the evidence adduced in the court of law.

However, the right to appeal is not a natural or inherent right, it is a creature of statute and there cannot be any right of appeal unless it is expressly provided in any statute. Further, it is a substantive right, not merely a procedural right. This vested right accrues to the litigant on and from the date the list commences, although it will actually be exercised when any adverse judgment will be pronounced, and hence such rights are governed by the law prevailing at the time of institution of the suit or proceeding and not the law prevailing at the time of decision or at the time of filing the appeal. These vested rights can be taken away only by a subsequent enactment, if it so provides expressly or by necessary implications, not otherwise.

It is further important to understand that this right is the creation of statute and hence conditions may be imposed by the statute for the exercise of this right. This is why the forum of appeal may be changed by the statute and the litigant has no right to decide the forum of appeal.

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”.[Anant Mills Co. Ltd. V. State of Gujarat, AIR 1975 SC 1234]

RIGHT TO SUIT AND RIGHT TO APPEAL

There is a fundamental difference between suit and appeal and the same has been explained properly by J. Chandrachud in "Ganga Bai V. Vijay Kumar, AIR 1974 SC 1126";

“There is a basic distinction between the right of suit and the right of appeal. 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.”

An appeal is a continuation of suit and hence, the decree passed by an appellate court would be construed as decree passed by the Court of first instance.

An appeal has been said to be ‘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 proceeding in a cause already constituted but does not create the cause’ [Dayawati V. Inderjit, AIR 1966 SC 1423].

It is obvious that when an appeal is made, the appellate authority can do one of the following three things, namely

  1. It may reverse the order under appeal;
  2. It may modify the order;
  3. It may merely dismiss the appeal and thus confirm the order of the lower court without any modification.

In all three cases, after disposal of the appeal by the appellate authority, the order so passed by the authority will be operative irrespective of the fact that this order has reversed, modified or confirmed the decision of the lower court. In fact, it is the appellate decision alone that subsists and is operative as well as capable of enforcement.

After referring to the various decision on the subject, the Supreme Court laid down the following principles relating to the right of appeal in Garikapati V. Subbiah choudhary, AIR 1957 SC 540.These are:

  1. That the legal pursuit of a remedy, suit, appeal and second appeal are really but 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 just a matter of procedure but is asubstantive 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 thereto till the rest of the career of the suit.
  4. The right of appeal is a vested right and such a right to enter a superior Court accrues to the litigant and exists on and from the date the suit commences and, although it may be actually exercised when the adverse judgment is pronounced, such right 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 filing of the appeal.
  5. This vested right of appeal can be taken away only by a subsequent enactment, if it is so provided expressly or by necessary intendment and not otherwise.

APPEAL FROM ORIGINAL DECREES

Section 96

  1. Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction in the Court authorized to hear appeals from the decisions of such Court.
  2. An appeal may lie from an original decree passed ex parte.
  3. No appeal shall lie from a decree passed by the Court with the consent of parties.
  4. No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.

As per section 96(1) of the code, the right to appeal is recognized for the decree passed by the court exercising the original jurisdiction.However, nothing has been mentioned with respect to who may file an appeal. But before an appeal can be filed, two important conditions must be satisfied as per this section

  1. The first, that the subject matter of the appeal must be a decree, i.e., a conclusive determination of the right of the parties with respect to the all or any of the matter in controversy in the suit; and
  2. The party appealing must be adversely affected by the decision of the decree.

Now, the second condition merely states that the party filing the appeal should be adversely affected by the decision of the decree, however, it is silent about that can a person who is not the party to the suit so decided come up with an appeal if he/she is adversely affected by the decision of the suit.

The answer to this question was given in the case State of Punjab V. Amar Singh. What is material as per the section is that one who is adversely affected by the judgment may appeal the judgment in the higher court. And hence there lies no doubt with respect to the person adversely affected and party to the suit. As far as the person who is not the party to the suit is concerned, he may appeal if he/she is adversely affected.

What adversely affected mean? - a decision cannot be said to adversely affect a person unless it will operate as res judicata against him in any future suit.

Based on the above discussion, the following principle may be considered to determine who may appeal:

  1. A party to the suit who is aggrieved and adversely affected by the decree, or if such party is dead, his legal representative,
  2. A person claiming under a party to the suit or a transferee of the interest of such party, who so far as the interest is concerned, is bound by the decree, provided his name is entered on the record of the suit.
  3. A guardian ad litem appointed by the court in a suit by or against a minor
  4. Any other person, with the leave of the court, if he is adversely affected by the decree.

However, if a party agrees not to appeal or waives his right to appeal by entering into an agreement, then they cannot exercise this right, provided the agreement is valid otherwise.Whether a party has waived his right of appeal depends upon the facts and circumstances of each case. Further, it is very important to understand that by availing the benefit of the decree, the party submits himself to the decree and later he cannot question the legality of the decree.

As Scrutton, L.J. observed: “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 …..In my opinion, you cannot take the benefit of the judgment as being good and then appeal against it as being bad" [Dexters Ltd. V. Hill Crest Oil Co. (1926) 1 KB 348].


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