Discuss the concept of the first appeal under the provisions of C.P.C.

Question: Discuss the concept of the first appeal under the provisions of C.P.C.

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Answer

Section 96 to 99 and Section 107 read with Order 41 deal with the first appeal. As a general rule, the first appeal lies from every decree passed by a court in the exercise of its original jurisdiction (Section 96).

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 or 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”, and
2. The party appealing must have been adversely affected by such determination.

The test of whether a person is an aggrieved person is to see whether he has a genuine grievance because an order has been made that prejudicially affects his interest either pecuniary or otherwise.

Form Of Appeal

As stated above, Section 96 to 99-A enacts the substantive law as regards First Appeals, while order 41 lays down the procedure relating thereto.

In order that an appeal may be said to be validly presented, the following requirements must be complied with

1. It must be in the form of a memorandum setting forth the grounds of objections to the decree appealed from;
2. It must be signed by the appellant or his pleader;
3. It must be presented to the court or to such officer as it appointed;
4. The memorandum must be accompanied by a certified copy of the judgment; and
5. Where the appeal is against a money decree, the appellant must deposit the decretal amount or furnish the security in respect thereof as per the direction of the court.

Rule 2 precludes the appellant from urging, except with the leave of the court, any grounds of objection not set forth in the memorandum of appeal.

Rule 3 where the memorandum of appeal is not in a proper form, the court may reject it or return it to the appellant for the purpose of being amended.

Rule 4 provides that where a decree proceeds upon a ground common to all the plaintiffs or defendant, any one of the plaintiffs or defendants may appeal from the whole decree, and thereupon the appellate court can reverse or vary the decree in favor of all the plaintiffs or the defendants as the case may be.

Rule 5 provides for the stay of an execution of a decree or an order. The object underlying rule 5 is to safeguard the interests of both, the decree-holder and the judgment-debtor.

Rule 6 provides taking of security from the decree-holder if any sufficient cause exists.

Rule 9 states that the court from whose decree an appeal lies shall entertain the memorandum of appeal, shall make an endorsement thereon, and shall register the appeal in the register of appeals. Rule 10 provides the appellate court in its discretion demand from the appellant security from the costs of the appeal.

In view of the above provision of filing of appeals in the court which passed the decree, Rule 13, 15, and 18 requiring notice to the court whose decree is under challenge have been deleted.

Rule 11 – 11 A deals with the power of the appellate court to dismiss an appeal summarily. If the appeal is not summarily dismissed, the appellate court shall fix a day for hearing of the appeal, and the notice of such date of hearing shall be served upon the respondent with a copy of the memorandum of appeal.

The procedure of hearing is dealt with under Rule 16-21 which is summarized below

Rule 16: Right to begin

Rule 17-19: Dismissal for default and restoration

Rule 17,21: Ex- parte hearing and rehearing

Rule 20: Addition of respondent

Cross Objection: Rule 22

Order 41 Rule 22 is a special provision permitting the respondent who has not filed an appeal against the decree to object to the said decree by filing cross-objections in the appeal filed by the opposite party. It is permissive and enabling and not peremptory or obligatory provision.

Section 96-108 and Rules 23 to 33 of Order 41 enumerates the powers of an appellate court while hearing the first appeals. They may be summarized thus

1. Power to decide a case finally: Section 107 (1)(a), Rule 24.
2. Power to remand: Section 107 (1)(b), Rule 23-23A
3. Power to frame issues and refer them for trial: Section 107 (1)(c), Rule 25-26
4. Power to take additional evidence: Section 107 (1)(d), Rules 27-29

Judgment: Section 98, Rules 30-34

After hearing the parties or their pleaders, the appellate court shall pronounce the judgment in open court, either all at once or on some future date after giving notice to the parties or their pleaders.

The judgment of the appellate court shall be in writing and shall state

1. Points for determination;
2. The decision thereon;
3. The reasons for the decision;
4. Where the appeal is allowed and the decree of the lower court is reversed or varied, the relief to which the appellant is entitled. It shall be signed and dated by the judge or judges concurring therein.

Decree: Rules 35-37

The decree of an appellate court shall contain

1. The date and day on which the judgment was pronounced
2. Number of the appeal, names, and description of the parties and a clear specification of the relief granted or other adjudication made;
3. The costs of the appeal and of the suit and by whom they are to be paid;
4. The date and signature of the judge or judges who passed it. A dissenting judge need not sign the decree.

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