APPEAL PROVISIONS UNDER CPC 1908, Study notes of Civil procedure

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AMITY LAW SCHOOL CIVIL PROCEDURE CODE 1908 TOPIC- GENERAL PROVISIONS RELATED TO APPEALS SUBMITTED TO SUBMITTED BY DR GOVIND RAJPAL GAURAV PUROHIT ASST PROFESSOR BBA LLB 6TH^ SEM

WHAT IS APPEAL ?WHAT IS APPEAL?

• (^) Appeal is a Proceeding by which Defendant party in law suit applies to Higher Court to have judgment reversed because of errors of law committed or failure of considering some issues in the court below.
• (^) Any Person who feels aggrieved by any decree or order passed by court may prefer an appeal in a Superior Court.
• (^) Appeal is the Judicial Examination of decision by a Higher Court of the decision of an Inferior Court.
• (^) Appeal is a Proceeding by which Defendant party in law suit applies to Higher Court to have judgment reversed because of errors of law committed or failure of considering some issues in the court below.
• (^) Any Person who feels aggrieved by any decree or order passed by court may prefer an appeal in a Superior Court.
• (^) Appeal is the Judicial Examination of decision by a Higher Court of the decision of an Inferior Court.

ESSENTIAL ELEMENTS OF APPEALESSENTIAL ELEMENTS OF APPEAL

• (^) A Decision ( Judgment of Court or ruling of an administrative authority)
• (^) A person aggrieved ( not necessarily a party to original proceedings)
• (^) A Reviewing body ready and willing to entertain an appeal.
• (^) Appeal is a creature of a statute and there is no right of appeal unless it is given clearly and in express terms by a statute
• (^) A Decision ( Judgment of Court or ruling of an administrative authority)
• (^) A person aggrieved ( not necessarily a party to original proceedings)
• (^) A Reviewing body ready and willing to entertain an appeal.
• (^) Appeal is a creature of a statute and there is no right of appeal unless it is given clearly and in express terms by a statute

FEATURES OF AN APPEALFEATURES OF AN APPEAL

• (^) Not a Natural Inherent Right
• (^) It is Clearly granted and in express terms
• (^) It is a Statutory Right
• (^) It can be Conditional and Qualified
• (^) It is Not Violative of Article 14 of the Constitution of India
• (^) An Appeal is Virtually a Rehearing of the Matter and is a continuation of a suit.
• (^) Any Statute which does not confer a right of appeal cannot be held Ultra Vires or Unconstitutional.
• (^) Not a Natural Inherent Right
• (^) It is Clearly granted and in express terms
• (^) It is a Statutory Right
• (^) It can be Conditional and Qualified
• (^) It is Not Violative of Article 14 of the Constitution of India
• (^) An Appeal is Virtually a Rehearing of the Matter and is a continuation of a suit.
• (^) Any Statute which does not confer a right of appeal cannot be held Ultra Vires or Unconstitutional.

WHO MAY APPEAL ?WHO MAY APPEAL?

• (^) Party who is Aggrieved or adversely affected by decree or if such party is dead then his legal representatives
• (^) A Guardian ad litem as appointed by Court by or against a minor.
• (^) Any other person with permission of court if he is adversely affected by decree.
• (^) Any transferee of interest of party who is bound by decree of court
• (^) Party who is Aggrieved or adversely affected by decree or if such party is dead then his legal representatives
• (^) A Guardian ad litem as appointed by Court by or against a minor.
• (^) Any other person with permission of court if he is adversely affected by decree.
• (^) Any transferee of interest of party who is bound by decree of court

GENERAL PROVISIONS RELATING TO APPEALS GENERAL PROVISIONS RELATING TO APPEALS

• (^) Section 107 and 108 of Code of Civil Procedure 1908 deals with general provisions related to Appeals.
• (^) Section 107 Powers of Appellate Court
• (^) Section 108 Procedure in Appeals from Appellate Decrees and Orders
• (^) Section 107 and 108 of Code of Civil Procedure 1908 deals with general provisions related to Appeals.
• (^) Section 107 Powers of Appellate Court
• (^) Section 108 Procedure in Appeals from Appellate Decrees and Orders

CONDITIONS FOR ORDERING REMAND CONDITIONS FOR ORDERING REMAND

• (^) The suit must have been disposed of by the trial court on a preliminary point.
• (^) The decree under appeal must have been reversed.
• (^) Other Grounds (Rule 23 A): Rule 23 A of Order 41 enables the Appellate Court to remand a case where the lower court has decided on merits but the appellate court considers such remand in the interest of the justice.
• (^) Power to refer is different from power to remand a case because in case of remand entire record of case is sent back to lower court for Re Trial while in case of Referral only specific issue is sent to be adjudged where as the xase file remains with Appellate Court
• (^) The suit must have been disposed of by the trial court on a preliminary point.
• (^) The decree under appeal must have been reversed.
• (^) Other Grounds (Rule 23 A): Rule 23 A of Order 41 enables the Appellate Court to remand a case where the lower court has decided on merits but the appellate court considers such remand in the interest of the justice.
• (^) Power to refer is different from power to remand a case because in case of remand entire record of case is sent back to lower court for Re Trial while in case of Referral only specific issue is sent to be adjudged where as the xase file remains with Appellate Court

WHERE APPELLATE COURT CAN ORDER TO TAKE ADDITIONAL EVIDENCE WHERE APPELLATE COURT CAN ORDER TO TAKE ADDITIONAL EVIDENCE

• (^) When Trial Court refuses to Admit an evidence ( oral or documentary) without any lawful and just reason
• (^) When party bringing evidence had no knowledge about evidence at trial or at any time before the appela
• (^) If party producing additional evidence can satisfy court that he was unable to produce the evidence during trial despite exercising due diligence.
• (^) When Trial Court refuses to Admit an evidence ( oral or documentary) without any lawful and just reason
• (^) When party bringing evidence had no knowledge about evidence at trial or at any time before the appela
• (^) If party producing additional evidence can satisfy court that he was unable to produce the evidence during trial despite exercising due diligence.

SECTION 108 PROCEDURE IN APPEALS FROM APPELLATE DECREES AND ORDERS SECTION 108 PROCEDURE IN APPEALS FROM APPELLATE DECREES AND ORDERS

• (^) Provisions of Part 7 i.e Appeals from Original Decree shall apply to Appeals- a) From Appellate Decrees and b) From Orders made under CPC or under any Special or Local Law in which different procedure is not provided.
• (^) Provisions of Part 7 i.e Appeals from Original Decree shall apply to Appeals- a) From Appellate Decrees and b) From Orders made under CPC or under any Special or Local Law in which different procedure is not provided.

IMPORTANT CASE LAWSIMPORTANT CASE LAWS

• (^) Purapabutchi Rama v PurapaVimalakumari : In this case it was stated that no remand can be ordered by the Appellate court under Rule 23 of Order 41 unless the decision of the lower court on the preliminary point is reversed in appeal.
• (^) CWT vs. AluminiumCorpn. Ltd: The High Court of Calcutta expressed doubts about the Supreme Court to remand the case. When the matter reached the Supreme Court again, the Apex Court observed that the High Court clearly exceeded its jurisdiction in examining the competence of the Apex Court to remand the case.
• (^) Purapabutchi Rama v PurapaVimalakumari : In this case it was stated that no remand can be ordered by the Appellate court under Rule 23 of Order 41 unless the decision of the lower court on the preliminary point is reversed in appeal.
• (^) CWT vs. AluminiumCorpn. Ltd: The High Court of Calcutta expressed doubts about the Supreme Court to remand the case. When the matter reached the Supreme Court again, the Apex Court observed that the High Court clearly exceeded its jurisdiction in examining the competence of the Apex Court to remand the case.