Civil Appeals: General Provisions

Introduction

The expression ‘appeal’ or ‘appeals’ is nowhere defined under the Code of Civil Procedure, 1908. In the Black’s Law Dictionary an “Appeal” is defined as, “The complaint to a superior court of an injustice done, or error committed by an inferior one, whose judgment or decision the court above is called upon to correct, or reverse.” Further, in the Bouvier’s Law Dictionary it is defined as, “the removal of a cause from a court of inferior to one of superior jurisdiction for the purpose of obtaining a review and retrial.”

Form the above we learn that civil appeal is a remedy available to a person aggrieved by a judgment or decision of an inferior court or authority, whereby, the aggrieved person can complain to a superior court in respect of the judgment or decision of the inferior court or authority and appeal to the superior court to reconsider the decision pronounced by the inferior court or authority. The superior court being empowered to confirm, reverse, or even remand the case back to the inferior court or authority for a fresh decision in compliance with the directions given to it by the superior court.

A Civil Appeal is a substantive remedy

A civil appeal is a substantive right available under the provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as “Code”). An appeal in a civil matter can be instituted pursuant to Section 96 of the Code, which states as follows:

“(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 to 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.1[(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 Causes, when the amount or value of the subject-matter of the original suit does not exceed 2 [ten thousand rupees.]]”

General provisions regarding appeals under the Code

The general provisions pertaining to civil appeals under the Code are present under two Sections i.e., Section 107 & Section 108 of the Code. The former provision pertains to the powers possessed by the appellant court and the latter pertains to the procedures to be followed in respect of appeals arising from appellate decrees and orders under this Code or under any other special law that does not provide for a distinct procedure to be adhered to.

  1. Section 107 of the Code of Civil Procedure, 1908

This Section pertains to the powers possessed by the appellant court. It reads as follows:

“(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power— (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.”

Thereby, the present provision of the Code provides a structured framework to the powers available to an appellant court. These powers include final determination of a case, remanding of a case, framing of issues pursuant to a case and referring the same for trial, and taking of additional evidence or to require that such evidence be taken. An appellate court is expected to utilize all these powers that are provided to it pursuant to Section 107 of this Code in a judicious fashion without leaving any scope for potential lapses in the administration of justice.

It is important to note that clause (d) under sub-section (1) of Section 107 is an exception to the general rule otherwise expected to be adhered to by an appellate court. The rule being that appellate courts are not to go beyond the contours of the evidence that has already been recorded by the inferior court thereby circumscribing the appellate court from extending consideration to additional evidence in an appeal. However, clause (d) under sub-section (1) of Section 107, throws open the gates for appellate courts to extend consideration to additional evidence in an appeal. Order 41, Rule 27 of the Code of Civil Procedure, 1908, prescribes the conditions which, if fulfilled, provides an appellate court with the leeway to extend consideration to additional evidence:

“(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be exam med. (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission.”

2. Section 108 of the Code of Civil Procedure, 1908

This Section pertains to the procedures to be adhered in respect of appeals from appellate decrees and orders, and reads as under –

“The provisions of this Part relating to appeals from original decrees shall, so far as may be, apply to appeals— (a) from appellate decrees, and (b) from orders made under this Code or under any special or local law in which a different procedure is not provided.”

Thereby, the above-stated provision prescribes that, provisions under Part VII of this Code pertaining to appeals arising from original decrees shall insofar as possible be appliable to appeals arising from appellate decrees as well as orders that are made under this Code or any other special or local law unless such a special or local law provides for a distinct procedure to be adhered to.

Conclusion

The substantive mechanism of appeals which has been provided under the Code of Civil Procedure, 1908, serves as an important check against judicial malice or errors. It ensures that damage wrought on a party due to a malicious or an erroneous order or decree passed by an inferior court / authority is not irretrievable and is rectifiable on appeal against the same to superior courts. This article was intended to give a brief overview of the general provisions pertaining to civil appeals that are prescribed under the Code of Civil Procedure, 1908.

Sources

  1. Henry C. Black, Black’s Law Dictionary 78 (Lawbook Exchange 1991).
  2. 1 John Bouvier, Bouvier’s Law Dictionary 149 (The Boston Book Company 1897).
  3. The Code of Civil Procedure, 1908, No. 05 Acts of Imperial Legislative Council, 1908.
  4. Yamini Jain, First appeals under the Code of Civil Procedure, 1908, ipleaders.in (Apr.01, 03:43 PM), https://blog.ipleaders.in/first-appeals-under-the-code-of-civil-procedure-1908/
  5. Oishika Banerji, General provisions relating to appeals (Section 107,108) of CPC, 1908, ipleaders.in (Apr.01, 04:12 PM), https://blog.ipleaders.in/general-provisions-relating-to-appeals-section-107108-of-cpc-1908/
  6. Shivani Vora, Appeal under Code of Civil Procedure, legalserviceindia.com (Apr.01, 05:12 PM), https://legalserviceindia.com/legal/article-3133-appeal-under-code-of-civil-procedure.html

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