FIRST APPEAL TO HIGH COURT

FIRST APPEAL TO HIGH COURT

By

KANCHAN MANCHANDA

ROLL NO. 21

B.A.LL.B X- SEMESTER

2OTH MAY, 2019

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 FIRST APPEAL TO HIGH COURT

TABLE OF CONTENTS

DECLARATION………………………………………………………………………….......3

CERTIFICATE……………………………………………………………………….……….4

ACKNOWLEDGEMENT……………………………………………………………….……5

 CHAPTER 1 INTRODUCTION……………………………………………….…….6
 CHAPTER 2 RIGHT TO APPEAL……………………………………………….....7
 CHAPTER 3 WHO MAY APPEAL & WHO MAY NOT………………………….8
 CHAPTER 4 APPEAL AGAINST EX-PARTE & JUDGEMENT……..…………..9
 CHAPTER 5– ORDER 41…………………………………………………………..10

CONCLUSION…………………………………………………………………………........12

BIBLOGRAPHY…………………………………………………………………………….13

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 FIRST APPEAL TO HIGH COURT

DECLARATION

I Kanchan Manchanda, do hereby declare that this project titled “First Appeal to High Court”
is an outcome of the research conducted by me under the guidance of Mr. Nakul Sharma
(Asst. Prof. of Law) at S.S. Jain Subodh law College in fulfillment for the award of the
degree of B.A.L.L.B. at the University Of Rajasthan.

I also declare that, this work is original, except where assistance from other sources has been
taken and necessary acknowledgements for the same have been made at appropriate places. I
further declare that, the work has not been submitted either in whole or in part, for any degree
or equivalent in any other institution

DATE - 20-05-2019

KANCHAN MANCHANDA

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CERTIFICATE

This is to certify that the project titled “First Appeal to High Court” submitted by Kanchan
Manchanda in fulfillment for the award of the degree of B.A.LL.B. At S.S.Jain Subodh Law
College is the product of research carried out under my guidance and supervison.

Mr. Nakul Sharma

(Asst. Prof. of Law)

S.S. Jain Subodh Law College

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ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to Mr. Nakul
Sharma for inspiring me and guiding me during the course of this project work and also for
him cooperation and guidance from time to time during the course of this project work on the
topic. “FIRST APPEAL TO HIGH COURT”

DATE - 20-05-2019

KANCHAN MANCHANDA

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CHAPTER 1 - INTRODUCTION

Appeals from original decrees are known as first appeal. The expression “appeal” has not
been defined in the Code of Civil Procedure. Right of appeal is the right of entering a
superior court and invoking its aid and interposition to redress the error of the court below.
Thus, appeal is “the judicial examination of the decision by a higher court of the decision of
an inferior court”.

Any person who feels aggrieved by any decree or order passed by the court may prefer an
appeal in a superior court if an appeal is provided against that decree or order. The expression
appeal is generally understood as the judicial examination of the decision by a higher court of
the decision of a lower court. It means removal of a cause from an inferior court to a superior
court for the purpose of testing the soundness of the decision of the inferior court. From any
decree passed by any court exercising original jurisdiction, first appeal lies to the court
authorized to hear appeals from the decision of such court unless otherwise has been
expressly provided either under the Code or by any other law for the time being in force.
Sections 96 to 99-A. 107 to 108 and Order 41 of the Code of Civil Procedure deal with
appeals from original decrees which are known as first appeal this chapter demonstrate
various aspects of appeals from original decrees.

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CHAPTER-2 RIGHT TO APPEAL

 Right to appeal: A statutory & substantive right

Right to appeal is statutory and substantive right. It is not merely appeal procedural right.
Statutory right means must be conferred by statute unless it provides there won’t be any right
to appeal. While right to institute a suit is not conferred by law. The right is inherent. But
right to appeal has to be conferred by appeal statute. Where statute provides for right to
appeal, it may constitute appeal machinery where shall the appeal lie. While the same isn’t
true for right to sue; a civil suit has to be filed subject to condition of jurisdiction. An appeal
is appeal substantive right. Right to appeal can’t be taken retrospectively because general rule
of specific interpretation. Substantive law operates prospectively unless an express statute
provides so.

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CHAPTER - 3 WHO MAY APPEAL & WHO MAY NOT APPEAL

 Who may appeal

As a general principle, no one can appeal unless he was a party to the proceedings or was
treated as such, or the legal representative of the party or unless his privities in estate, title or
interest is apparent on the face of the record. However, any person having a legal grievance
which might have deprived him of the benefit or bound by the order passed is certainly
entitled to the leave. Even in case of doubt as to the existence of the right of appeal, the
appellant should get the benefit of doubt.

An appeal under this section may be preferred by any of the following persons:

 Any party to the suit adversely affected by the decree, or, if such party is dead, by
his legal representative.
 Any transferee of the interest of such party, who, so far as such interest is
concerned, is bound by the decree, provided his name is entered on the record of
the suit.

 Who may not appeal

If a party agrees not to appeal or waives his right to appeal, he cannot file an appeal and will
be bound by an agreement if otherwise such agreement is valid. Such an agreement, however,
must be clear and unambiguous. Whether a party has or has not waived hid right of appeal
depends upon the facts and circumstances of each case. Similarly, where a party has accepted
the benefits under a decree of the court, he can be stopped from questioning the legality of
that 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 a judgment as being good and then appeal against it as being bad.”

Finally, the vested right of appeal is destroyed if the court to which an appeal lies is abolished
altogether without any forum being substituted in its place.

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CHAPTER 4- APPEAL AGAINST EX PARTE & JUDGEMENT

 Appeal against ex-parte decree

One of the remedies available to the defendant, against whom an ex parte decree is passed, is
to file an appeal against such a decree under Section 96(2) of the Code, though he may also
file an application to set aside ex parte decree.

Both the remedies are concurrent and can be resorted to simultaneously. One does not debar
the other. As has been rightly said:

“Where two proceedings or two remedies are provided by a statute, one of them must not be
taken as operating in derogation of the other.”

In an appeal against an ex parte decree, the appellate court is competent to go into the
question of the propriety or otherwise of the ex parte decree passed by the trial court.

 Appeal against judgment

The Code provides an appeal from a decree and not from a judgment. An aggrieved party,
however, may file an appeal against the judgment, if a decree is not drawn up by the court.

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CHAPTER 5 –ORDER 41

As stated above, sections 96-99A enact the substantive law as regards First Appeals, while
order 41 lays down the procedure relating to thereto. The expressions appeals and
memorandum of appeal denote two different things. The appeal is the judicial examination by
a higher court of the decision of the inferior court. The memorandum of appeal contains the
grounds on which the judicial examination is invited. The order lays down the requirements
that have to be complied with for validly presenting an appeal.
Rule 2 precludes the appellant to urge, except with the leave of the court, any grounds of
objection not set forth in the memorandum of appeal. Where the memorandum of appeal is
not in the proper form, the court may reject it or return to the appellant for the purpose of
making amendments. Under the provision of Rule 3A, where an appeal has been presented
after the expiry of the period of limitation specified therefore, it should be accompanied by an
application that the applicant had sufficient cause for not preferring an appeal within the said
time. This rule was inserted during the 1976 Amendment Act to give effect to the
recommendation of the Privy Council.

Rule 5 provides for the stay of execution of decree or order. After an appeal has been filed,
the appellate court may order stay of proceedings under the decree or execution of such
decree. But mere filing of an appeal does not suspend the operation of the decree; the
following grounds must be satisfied before the court may grant a stay:

1. The application has been made without any unreasonable delay,

2. Substantial loss will result to the applicant unless such order is made, and

3. Security for the due performance of the decree or order has been given by the applicant.

Rule 11 deals with the power of the appellate court to summarily dismiss an appeal. This rule
embodies a general principle that whenever an appeal is preferred, the appellate court is
entitled to reject the appeal summarily, after hearing the appellant, if no prima facie substance
exists. Where an appeal rises triable, it should not summarily dismiss the suit.

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Rule 16 says that the appellant has the right to begin, just like in the case of an original suit
wherein the plaintiff has the right to begin. If the appeal is not dismissed summarily, then the
court shall hear the respondent against the appeal and the appellant then be entitled to reply.
Like in the case of the original suit, if the plaintiff does not appear for the hearing, the case
may be dismissed, so is the case during the appeal too. If the appellant does not appear when
the appeal is called for hearing, the court may dismiss the appeal in default. The same result
ensues in the case of the non-payment of the process fee by the appellant, similar to that of
the situation of the original suit. Under rule 19, the appeal may be restored after being
dismissed if the appellant files for such action and shows sufficient cause.

As is the case with the original suit, if the respondent does not appear but the appellant does,
the court may proceed ex-parte. If the case goes in the favor of the appellant, the respondent
may apply for the rehearing of the appeal. If he is able to satisfy the court that he had
sufficient cause for not having appeared for the scheduled hearing, the court may accept the
application. However, ordinarily the court should not pass an ex-parte decree except on
reliable evidence.

Again, as in the case of the original suit, where joinder of parties is allowed, so in the case of
an appeal respondents may be added under the provisions of rule 20. Where it appears to the
appellate court at the hearing of the of the appeal that any person who was a party to the suit
in the trial court but who has not been made a party to the appeal is interested in the result of
the appeal, the court may adjourn the hearing of the appeal and direct such person be joined
as a respondent. The object of this rule is to protect parties to the suit who have not been
made respondents in the appeal from being prejudiced by modifications being made behind
their back in the decree under appeal.

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CONCLUSION

To conclude that appeal is a substantive right, and it is a matter inters parties. The question as
to whether the appeal is competent or not can only be decided by the court hearing the appeal.
Appeal may be filed against original or appellate decree passed by a court subordinate to
High Court. Appeal only lies against a decree and not against Judgment. The right of appeal
is a creation of statute. Appeal person aggrieved by appeal decree is not entitled as or right to
appeal from decree. The right to appeal must be given by statute. Section 9 confers on appeal
litigant, independently of any statute, appeal right to institute appeal suit of civil nature in
appeal court of law. So he has appeal right to apply for execution of appeal decree passed in
his favor, but he has no right to appeal from appeal decree or order made against him, unless
the right is clearly conferred by statute. Section 96 of the Code gives appeal right to litigant to
appeal from an original decree. Section 100 gives him appeal right to appeal from an
appellate decree in certain cases. Section 109 gives him right to appeal to the Supreme Court
in certain cases. Section 104 gives him right to appeal from orders as distinguished from
decrees.

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BIBLOGRAPHY

BOOKS:-

 Sharma Y.S., the Law of Pleadings, Drafting & Conveyancing (University Book House).

WEBSITES:-

 https://lawtimesjournal.in/first-appeal/
 https://acadpubl.eu/hub/2018-120-5/3/214.pdf

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