APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

Z. H. SIKDER UNIVERSITY OF SCIENCE AND

TECHNOLOGY
Madhupur,Bhedergonj,Shariatpur

ASSIGNMENT ON

APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

COURSE CODE : LAW 232
COURSE TITLE : CODE OF CIVIL PROCEDURE ( PART II)

DEPARTMENT OF LAW

SUBMITTED BY

STUDENTS NAME : TAWHIDUR RAHMAN MURAD

STUDENTS ID : 140314024
BATCH : 8th
DEPARTMENT : LAW

SUBMITTED TO

SUPERVISOR : DR. MD. EMRAN PARVEZ KHAN

DESIGNATION : PH.D IN LAW[ANU,USA]
ASSOCIATE PROFESOR
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

DEAN
FECULTY OF HUMANITIES AND SOCIAL
SCIENCE&
CHAIRMAN
DEPARTMENT OF LAW

CONTENTS

SN TITLE PAGE NO.

1.1 Introduction 01
1.2 History of Appeal 01-02
1.3 Appeal under the statutory law of Bangladesh 02
1.4 Appeal under the Constitution of Bangladesh 02
1.5 Appeals to the Supreme Court of Bangladesh 03
1.6 Meaning of Appeal 03-04
1.7 Essentials elements of appeal 04
1.8 Procedure Related to Appeal 04-05
1.9 Right of Appeal 05-06
2. Compare between Right to suit and right to appeal 06
2.1 Appeal is a Continuation of Suit 06-07
2.2 Appeal and Revision 08-09
2.3 First Appeal and Second Appeal 09-10
2.4 Conversion of Appeal into Revision 10
2.5 Right of Appeal 10
2.6 Appeal from Original decree 11
2.7 Who may Appeal? 11-12
2.8 Who Cannot Appeal 12
2.9 Appeal by one Plaintiff against another Plaintiff 13
3. Appeal by one Defendant against another Defendant 13
3.1 Agreement not to Appeal 13
3.2 Appeal Against Ex Parte Decree 14
3.3 No Appeal against Consent Decree 14-15
3.4 Appeals against Preliminary Decree 15
3.5 No Appeal against Final Decree 15
3.6 Appeal against judgment 16
3.7 Appeal against dead person 16
3.8 Grounds which may be taken in appeal 16
3.9 Rejection or amendment of memorandums 17
4. Stay by Appellate Court 17-18
4.1 Security in case of order for execution of decree appealed from 18
4.2 Procedure at Hearing 19
4.3 Appeal and Review 19
4.4 Appeal and Reference 20
4.5 Appeal and Revision 20-21
4.6 Conclusion 21
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

1.1 Introduction

Any person who feels aggrieved by any decree or order of the court may prefer an appeal in the
superior court if the appeal is provided against that decree or order. A right to appeal is not a
natural or an inherent right. An appeal is a creature of the statute and there is no right of appeal
unless it is given clearly and in express terms. It is a vested right and accrues to the litigant and
exists as on and from the date the lies commences. The expression appeal has not been defined
in the code, but it may be defined as the judicial examination of the decision by a higher court of
the decision of an inferior court1 . It means removal of a cause from an inferior to a superior
court for the purpose of testing the soundness of the decision of the inferior court. It is thus a
remedy provided by law for getting the decree of the lower court set aside. In other words, it is a
complaint made to the higher court that the decree passed by the lower court is unsound and
wrong. The right to appeal must, at this juncture, be compared and distinguished from a right to
file a suit.2 As said, the right to appeal is a statutory right and any such right must have the
express authority of a law. The right to sue or to file a suit is, however, an inherent right and no
express authorization from any statute may be required to institute a suit. It is enough that no
statute expressly bars the institution of such suit. the appellate court would give weight to that
finding, but where disbelief is based upon comparison of the evidence given, the appellate court
can arrive at an independent decision.3

1.2 History of Appeal4

1 Thakker, C.K., Civil Procedure Code, 3rd Edition, Eastern book Company, p - 260

2 (1931-32) 59 IA 283 : AIR 1932 PC 165

3 Akbar vs W. 8 DLR (PC) 19

4 Paul Du Plessis, Borkowski's Textbook on Roman Law 82 (2015).

 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

Appellate courts and other systems of error correction have existed for many millennia. During
the first dynasty of Babylon, Hammurabi and his governors served as the highest appellate courts
of the land. Ancient Roman law employed a complex hierarchy of appellate courts, where some
appeals would be heard by the emperor. Additionally, appellate courts have existed in Japan since
at least the Kamakura Shogunate (11851333 CE). During this time, the Shogunate established
hikitsuke, a high appellate court to aid the state in adjudicating lawsuits.In the Eighteenth
century, William Blackstone observed in his Commentaries on the Laws of England that appeals
existed as a form of error correction in the common law during the reign of Edward III of
England. Although some scholars argue that "the right to appeal is itself a substantive liberty
interest," the notion of a right to appeal is a relatively recent advent in common law jurisdictions.
In fact, commentators have observed that common law jurisdictions were particularly "slow to
incorporate a right to appeal into either its civil or criminal jurisprudence. For example, the
United States first created a system of federal appellate courts in 1789, but a federal right to
appeal did not exist in the United States until 1889, when Congress passed the Judiciary Act to
permit appeals in capital cases. Two years later, the right to appeals was extended to other
criminal cases, and the United States Courts of Appeals were established to review decisions
from district courts. Some states, such as Minnesota, still do not formally recognize a right to
criminal appeals.

1.3 Appeal under the statutory law of Bangladesh

Sections 96-112 and Orders 41 to 45 of the Code of Civil Procedure,1908 deals with appeal

First appeals: Ss. 96-99A, 107 and Order XLI.

Second Appeals: Ss. 100-103, 108 and Order XLII.
Appeals from orders: Ss. 104 -108 and Order XLIII.
Appeals to the Supreme Court: Sections 109, 112 and Order XLV.
Appeals by indigent people: Order XLIV.

It is in the background information provided here that the aspect of an appeal being a
continuation of the suit will be examined.

1.4 Appeal under the Constitution of Bangladesh

 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

Appeals to Supreme Court are governed by the Provisions of Articles 103, 104 and 105 of the
Constitution of Bangladesh with regard to civil matters. Subject to the provisions of the
Constitution, an appeal shall lie to the Supreme Court from any judgment, decree or final order
in a civil proceeding of a High Court, if the High Court certifies that

(a) The case involves a substantial question of law of general importance; and
(b) In the opinion of the High Court the said question needs to be decided by the
Supreme Court.

1.5 Appeals to the Supreme Court of Bangladesh5

Sections 103 and 104 read with Order XLV of the Code of Civil Procedure,1908 deal with
appeals to the Supreme Court.

An appeal would lie to the Supreme Court under Section 103 of the Code only if the following
conditions are fulfilled:
a. A judgement, decree or final order must have been passed by the High Court,
b. A substantial question of law of general importance must have been Involved in the Case.
c. In the opinion of the High Court, the said question needs to be decided by the Supreme
Court.

1.6 Meaning of Appeal

The expression appeal has not been defined in the Code. According to the dictionary meaning,
appeal is the judicial examination of the decision by a higher court of the decision of an
inferior court . Stated simply, appeal is a proceeding by which the defeated party approaches a
higher authority or court reversed.

In Nagendra Nath Dey v. Suresh Chandra Dey 6 , speaking for the judicial Committee of Privy
Council, Sir Dinsha Mulla stated:

5 Order XLV of the Code of Civil Procedure,1908

6 (1931-32) 59 IA 283 : AIR 1932 PC 165

 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

There is no definition of appeal in the code of civil procedure, but their lordships have no doubt
that any 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 acceptation of the term.

An appeal is thus a 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. It is a remedy provided by law for
getting the decree of the lower court set aside. In other words, it is a complaint made to the
higher court that the decree passed by the lower court is unsound and wrong. It is a right of
entering a superior court and invoking its aid and interposition to redress an error of the court
below.

When a party to a decision of the court is not satisfied with the verdict and decides to appeal
against the decision, it is said to be an appeal. There are always people who feel cheated or
disappointed by a verdict of the court. These people seek relief from the judgment as they appeal
in a higher court of law for the reversal or modification of the verdict. An appeal is, therefore, a
plea for a second judgment on the same matter by the aggrieved party. In most judicial systems,
an appeal is considered a right of the people and a tool to seek redressal if a party feels it has
been wronged by the decision of the court. 7An appeal is always preferred in a higher court of
law. In case an appeal fails, a second appeal can be filed. An appeal is always filed by one of the
concerned parties.8

1.7 Essentials elements of appeal9

Every appeal has three basic elements:

1.A decision (usually a judgment of a court or the ruling of an administrative authority);

2. A person aggrieved (who is often, though not necessarily, a party to the original
proceeding); and

7 Attorney General v. Sillem,(1864) 10 HLC 704 at p.715:11 ER 1200 at 1209

8 Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, 2014,P,255

9 iBID
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

3. A reviewing body ready and willing to entertain an appeal.

1.8 Procedure Related to Appeal10

The appeal being the continuation of the suit is held not without any reason; it may be examined
in the light of the following propositions:

1.The appellate court has all the powers and has to do all those things necessary that a trial court
has and has to do. In this sense, even when the case goes on appeal, it is just the name that has
undergone a change; the form and substance still remain the same.

2. In the same vein as above, the appellate court has to do all that has been done by the trail
court in that particular case, and then either agree or disagree from the trial court.

3. Hence, even the appellate court has to write a judgement and pass a decree. In the event
of the court upholding the lower courts decision, the appellate court may write down the same
decree, without changing it, and the decree will now be deemed to have been that of the appellate
court.

4. Finally, the suit is not deemed to be finally concluded for matters of res judicata till the
appeals are over. This implies that it is deemed that the same suit is progress even while the
appeals are on. It is only when the courts have finally come to a conclusion, after all possible
appeals have been used and tried by the appellant, that the suit is said to have been conclusively
decided.

The above said propositions point out, in essence, what is implied when it is said that the appeal
is a continuation of the suit. The various provisions relating to the appeals have already been
stated in the introduction to this work. A detailed look into these provisions at this juncture
becomes pertinent.

1.9 Right of Appeal11

10 Order XLI of the Code of Civil Procedure,1908

11 Ganga Bai v. Vijay Kumar, (1974)

 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

A right of appeal is not an inherent or natural right. 12 An appeal is a creature of the statute and
there is no right of appeal unless it is given clearly and in express terms by a statute. It is a
vested right and accrues to the litigant and exists as on and from the date the lis commences.
Sometimes, appeal is a matter of right; sometimes it depends upon discretion of the court to
which such appeal lies. In the latter category of cases, the right is to apply to the court to grant
leave to file an appeal; for instance, an appeal to the Supreme Court under Article 136 of the
Constitution of India. If a particular Act does not provide a right to appeal, it cannot be declared
ultra vires only on that ground. Right of appeal is a statutory and substantive right. It is not
merely a matter of procedure. Right of appeal is governed by the law prevailing at the date of the
suit and not by law that prevails at the date of the decision or at the date of filling of the appeal.
This vested right of appeal can be taken away only by a subsequent enactment if it so provides
expressly or by necessary implication and not otherwise.

In Anant Mills Co. Ltd. v. State of Gujarat, speaking for the Supreme Court, 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.

2. Compare between Right to suit and right to appeal13

There is a fundamental difference between suit and appeal and the same is being explained
properly by J. Chandrachud in Ganga Bai v. Vijay Kumar in the following words:

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 ones peril, bring a suit of ones 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

12 Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393 at p. 397

13 Dayawati v. Inderjit
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability
must have the clear authority of law.

2.1 Appeal is a Continuation of Suit

An appeal is a continuation of suit and hence, decree passed by an appellate court would be
construed as decree passed by the Court of first instance. An appeal is virtually a rehearing of the
matter. The appellate court possesses the same powers and duties as the original court. Once
again the entire proceedings are before the appellate court which can review the evidence as a
whole, subject to statutory limitations, if any, and can come to its own conclusion of such
evidence. In Dayawati v. Inderjit , speaking for the Supreme Court, Hidayatullah, J, stated:

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.14

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 that order; and

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 which subsists
and operative as well as capable of enforcement.

14 Ramankutty v. Avara, (1994) 2 SCC 642 at p. 645

 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

After referring to the various decisions on the subject, the Supreme Court laid down the
following principles relating to the right of appeal in Garikapati v. Subbiah Choudhary. These
are as follows:

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 it is a substantive 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 lis 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.

2.2 Appeal and Revision

The revisional jurisdiction of a High Court is a part and parcel of the appellate jurisdiction of the
High Court. When the aid of the High Court is invoked on the revisional side it is done because it
is a superior court and it can interfere for the purpose of rectifying the error of the court below. It
is only one of the modes of exercising power conferred by the Statute; basically and
fundamentally it is the appellate jurisdiction of the High Court which is being invoked and
exercised in a wider and larger sense.

The distinction between an appeal and a revision is a real one. A right of appeal carries with it a
right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits
the rehearing one way or the other. The power to hear a revision is generally given to a superior
Court so that it may satisfy itself that a particular case has been decided according to law.
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

Revisional jurisdiction is not wide enough to make the High Court a second court of first appeal.
The High Court cannot, in exercise of revisional powers, substitute its own view for the view
taken by a subordinate court.

In State of Kerala v. K.M. Charia Abdullah & Co. Court has highlighted the difference between
the two jurisdictions in the following words:

There is an essential distinction between an appeal and a revision. The distinction is based on
the differences implicit in the said two expressions. An appeal is a continuation of the
proceedings; in effect the entire proceedings are before the appellate authority and it has power
to review the evidence subject to the statutory limitations prescribed. But in the case of a
revision, whatever powers the recessional authority may or may not have, it has not the power to
review the evidence unless the statute expressly confers on it that power.

In Associated Cement Co. Ltd. v. Keshavanand ,the Supreme Court stated, It is trite legal
position that appellate jurisdiction is coextensive with original court's jurisdiction as for appraisal
and appreciation of evidence and reaching findings on facts and appellate court is free to reach
its own conclusion on evidence untrammelled by any finding entered by the trial court.
Reversional powers on the other hand belong to supervisory jurisdiction of a superior court.
While exercising reversional powers the court has to confine to the legality and propriety of the
findings and also whether the subordinate court has kept itself within the bounds of its
jurisdiction vested in it. Though the difference between the two jurisdictions is subtle, it is quite
real and has now become well recognised in legal provinces.

It is submitted that the following observations of Hidayatullah, J. in Hari Shankar v. Rao

Girdhari Lal Chowdhury laid down correct law on the point. Speaking for the majority, His
Lordship concluded:

The distinction between an appeal and a revision is a real one. A right of appeal carries with it a
right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits
the rehearing in some way as, we find, has been done is second appeals arising under the Code of
Civil Procedure. The power to hear a revision is generally given to a superior Court so that it
may satisfy itself that a particular case has been decided according to law. Under s. 115 of the
Code of Civil Procedure. the High Court's power are limited to see whether in a case decided,
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction
where it did, or there has been material irregularity or illegality in the exercise of that
jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. In other acts, the
power is not so limited, and the High Court is enabled to call for the record of a case to satisfy
itself that the decision therein is according to law and to pass such orders in relation to the case,
as it thinks fit.15

2.3 First Appeal and Second Appeal16

The First Appeal can be admitted on the grounds (1) question of fact; and also (2) question of
law. The Second Appeal can be admitted only on the point of substantial question of law. The
First Appeal can be entertained by subordinate Courts to District Judges Court and to High
Courts. Example: An appeal from the District Munsiff Magistrate s Court or Subordinate Judges
Court to the District Judge.

The Second Appeal can only be entertained by the High Court. Sections 96 to 99-A, 107 and
Order XLI deals with First Appeals. Sections 100 to 103 and Order XLII deal with Second
Appeal. The Memorandum of first appeal must set out the grounds of objections to the decree
appealed from. Since the second appeal is maintainable only when it involves a substantial
question of law, a memorandum of second appeal must precisely state such question. It need not
set out the grounds of objections to the decree appealed from.17

2.4 Conversion of Appeal into Revision18

If an appeal is preferred in a case in which no appeal lies, the court may treat the memorandum
of appeal s a revision or vice versa. Since there is no specific provision for such conversion, the
court would be justified in invoking the inherent powers under Section 151 and in passing

15 Md. Abdul Halim: Text Book on Civil Procedure.P.211

16 Ibid

17 National Bank vs Sunil 45DLR 547

18 Ibid
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

appropriate orders as may be necessary in the interests of justice. There is nothing like a period
of limitation for making an application for conversion of an appeal into revision or vice versa.
All that is required to be seen is if the appeal or the revision had been filed within the time
prescribed for the filing of the appeal, or the revision, as the case may be.19

2.5 Right of Appeal20

The right of appeal is a vested right and such a right to enter the superior court accrues to the
litigant and exists as on and from the date the lis commences and although it may be actually
exercised when the adverse judgment is pronounced such right is 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 the filing of the appeal.

2.6 Appeal from Original decree21

Section 96 of the code of Civil Procedure,1908 deals with Appeal from Original decree

(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 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.

19 Bahori v. Vidya Ram, AIR 1978 All 299

20 Section 96

21 Section 96
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed [ten] thousand rupees.

2.7 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 oe\r 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 ordinary rule is that only a party to a suit adversely affected by the decree or any of his
representatives-in-interest may file an appeal. But a person who is not a party to a decree or order
may, with the leave of the court, prefer an appeal from such decree or order if he is either bound
by the order or is aggrieved by it or is prejudicially affected by it.22

It was observed in the case of Krishna Chandra Golder v. Mahesh Chandra Sahu , the question
who may appeal is determinable by the common sense of consideration that there can be no
appeal where there is nothing to appeal about.23

From the above general principles, the following persons are entitled to appeal under this
section:

1.Any party to the suit, who is adversely affected by the decree or the transferee of interest of
such party, has been adversely affected by the decree provided his name was entered into record
of suit.

22 Biscttits vs Prince Hotel, l2 BLC 169

23Krishna Chandra Golder v. Mahesh Chandra Sahu

 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

2. A person claiming under a party to the suit or a transferee of the interests 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.

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.

2.8 Who Cannot Appeal?24

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.25 Such an agreement must be clear
and unambiguous. Whether a party has or has not waived his right of appeal depends upon the
facts and circumstances of each case.26 Similarly, where a party has accepted the benefits under a
decree of the court, he can be stopped from questioning the legality of the decree.27

As Scrutton, L.J. observed, It startles me that a person can say that 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.

2.9 Appeal by one Plaintiff against another Plaintiff28

24 ibid

25 Amir Ali v. Inderjeet Singh, (1871) 14 MIA 203 (PC)

26 Protap Chunder v. Arathoon, ILR (1882) 8 Cal 455

27 Dexters Ltd. v. Hill Crest Oil Co., (1926) 1 KB 348

28 ibid
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

As a general rule, one plaintiff cannot file an appeal against a co-plaintiff. But where the matter
in controversy in the suit forms subject-matter of dispute between plaintiffs inter se, an appeal
can be filed by one plaintiff against another plaintiff.29

3. Appeal by one Defendant against another Defendant30

The principle which applies to filing of appeal by one plaintiff against another plaintiff equally
applies to an appeal by one defendant against another defendant. 31 It is only where the dispute is
not only between plaintiffs and the defendants but between defendants inter se and such decision
adversely affects one defendant against the other that such appeal would be competent.32

3.1 Agreement not to Appeal33

A right of appeal is a statutory right. If a statute does not confer such right, no appeal can be filed
even with the consent or agreement between the parties. But an agreement between the parties
not to file an appeal is valid if it is based on lawful or legal consideration and if otherwise it is
not illegal.34With the leave of the court any ground can be urged before the court and particularly
a ground on a question of law can be urged provided the other side is heard without being
prejudiced.35 Abduvs Tazlu. 48 DLR 361

29 Vithu v. Bhima, ILR (1891) 15 Bom 145

30l3 DLR 15

31 Nirmala Bala v. Balai Chand, AIR 1965 SC 1874

32 Joy vs Sita. 4 DLR 400

33 ibid

3428 DLR (SC)

35 Abduvs Tazlu. 48 DLR 361

 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

3.2 Appeal Against Ex Parte Decree36

Section 96(2) of the Code of Civil Procedure,1908 deals with Appeal Against Ex Parte Decree.
The defendant, against whom an ex parte decree has been passed, has the following remedies
available to him:37

(1) Apply to the court by which such decree is passed to set it aside: Order IX Rule 13; or

(2) Prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115
where no appeal lies);

(3) Apply for review: Order XLVII Rule 1; or

(4) File a suit on the ground of fraud.

The above remedies are concurrent and they can be prosecuted simultaneously or concurrently.
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.38

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.

3.3 No Appeal against Consent Decree39

36 Anwara vs Shahttnetrctz.43 DLR (AD) 156

37 Section 96(2)

38 Ajudhia Prasad v. Balmukund, ILR (1866) 8 All 354 (FB)

39 Section 96(3)
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

Section 96(3) declares that no appeal shall lie against a consent decree. This provision is based
on the broad principle of estoppels. It presupposes that the parties to an action can, expressly or
impliedly, waive or forgo their right of appeal by any lawful agreement or compromise or even
by conduct. The consideration for the agreement involved in a consent decree is that both the
sides give up their right of appeal.40

Once the decree is shown to have been passed with the consent of the parties, Section 96(3)
becomes operative and binds them. It creates an estoppel between the parties as a judgment on
contest.41 Where there is a partial compromise and adjustment of a suit and a decree is passed in
accordance with it, the decree to that extent is a consent decree and is not appealable. This
provision, however, does not apply where the factum of compromise is in dispute or the
compromise decree is challenged on the ground that such compromise had not been arrived at
lawfully.

3.4 Appeals against Preliminary Decree42

An appeal lies against a preliminary decree. A preliminary decree is as much a final decree. In
fact, a final decree is but machinery for the implementation of a preliminary decree. Failure to
appeal against a preliminary decree, hence, preludes the aggrieved party from challenging the
final decree. Where an appeal is filed against a preliminary decree and is allowed and the decree
is set aside, the final decree falls to the ground as ineffective since there is no preliminary decree
to support the final decree.43

3.5 No Appeal against Final Decree where no Appeal against Preliminary Decree

In suits which contemplate the making of two decrees-a preliminary decree and a final decree-the
decree which would be executable would be the final decree. But the finality of a decree or a

40 Katikara Chintamani Dora v. Guntreddi Annamanaidu, (1974) 1 SCC 567 at pp. 584-85

41 Thakur Prasad v. Bhagwan Das, AIR 1985 MP 171

42 ibid

43 Phoolchand v. Gopal Lal, AIR 1963 SC 992 at pp. 994-95

 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

decision does not necessarily depend upon it being executable. The legislature in its wisdom has
thought that suits of certain types should be decided in stages and though the suit in such cases
can be regarded as fully and completely decided only after a final decree is made, the decision of
the court arrived at the earlier stage also has a finality attached to it 44. It would be relevant to
refer to s. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a
preliminary decree does not appeal from it, it is precluded from disputing its. correctness in any
appeal which may be preferred from the final decree. This provision thus clearly indicates that as
to the matters covered by it,45 a preliminary decree is regarded as embodying the final decision of
the court passing that decree.46

3.6 Appeal against judgment47

The code of civil procedure, 1908 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.

3.7 Appeal against dead person48

No appeal can be instituted against a dead person. Such an appeal, therefore, can be regarded as a
stillborn appeal. In such cases, an application can be made praying for the substitution of the
legal representatives of the deceased respondent who died prior to the filing of the appeal. In that
case, the appeal can be taken to have been filed on the date of the application for substitution of
the legal representatives. If, by that time, the appeal is time-barred, the appellant can seek
condition of delay.

44Jobeda vs Kshenta' 8 DLR 258

45 Banwari Lal v. Chando Devi, (1993) 1 SCC 581

46 Venkata Reddi and Others v. Pothi Reddi, 1963 AIR 992, 1963 SCR Supl. (2) 616

47 ibid

48 ibid
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

3.8 Grounds which may be taken in appeal

The appellant shall not, except by leave of the Court, urge or be heard in support of any ground
of objection set forth in the memorandum of appeal, but the Appellate Court, in deciding the
appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal
or taken by leave of the Court under this rule:

Provided that the Court shall not rest its decision on any other ground unless the party who may
be affected thereby has had a sufficient opportunity of contesting the case on that ground. 49 When
a decree is entered in favour of the plaintiff, he is entitled to support the decree in his favour also
on grounds found against him' Probodh vs Abdu. 12 DLR 459

3.9 Rejection or amendment of memorandums

(1) Where the memorandum of appeal is not drawn up in the manner hereinbefore prescribed, it
may be rejected, or be returned to the appellant for the purpose of being amended within a time
to be fixed by the Court or be amended then and there.

(2) Where the Court rejects any memorandum, it shall record the reasons for such rejection.

(3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this
behalf, shall sign or initial the amendment.

4. Stay by Appellate Court50

(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from
except so far as the Appellate Court may order, nor shall execution of a decree be stayed by
reason only of an appeal having been preferred from the decree; but the Appellate Court may for
sufficient cause order stay of execution of such decree.

49 Probodh vs Abdu. 12 DLR 459

50 Abu vs Sujayat. 3l DLR (AD) 326

 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

An order by the Appellate Court for the stay of execution of the decree shall be effective from
the date of the communication of such order to the Court of first instance, but an affidavit sworn
by the appellant, based on his personal knowledge, stating that an order for the stay of execution
of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate
Court of the order for the stay of execution or any order to the contrary, be acted upon by the
Court of first instance.51

(2) Stay by Court which passed the decree- Where an application is made for stay of execution of
an appeal able decree before the expiration of the time allowed for appealing therefrom, the
Court which passed the decree may on sufficient cause being shown order the execution to be
stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the
Court making it is satisfied-

(a) that substantial loss may result to the party applying for stay of execution unless the order
is made;

(b) that the application has been made without unreasonable delay; and

(c) that security has been given by the applicant far the due performance of such decree or
order as may ultimately be binding upon him.

(4) [Subject to the provisions of sub-rule (3)], the Court may make an ex parte order for stay of
execution pending the hearing of the application.

(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to
make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not
make an order staying the execution of the decree.

4.1 Security in case of order for execution of decree appealed from52

51 . Dev,an vs Bangaldesh. 43 DLR 221

52appealable . Shah vs Ghulam, 19 DLR (SC) 143'

 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

(1) Where an order is made for the execution of a decree from which an appeal is pending, the
Court which passed the decree shall, on sufficient cause being shown by the appellant, require
security to be taken for the restitution of any property which may be or has been taken in
execution of the decree or for the payment of the value of such property and for the due
performance of the decree or order of the Appellate Court, or the Appellate Court may for like
cause direct the Court which passed the decree to take such security.

(2) Where an order has been made for the sale of immovable property in execution of a decree
and an appeal is pending from such decree, the sale shall, on the application of the judgement-
debtor to the Court which made the order, be stayed on such terms as to giving security or
otherwise as the Court thinks fit until the appeal is disposed of.

Rule 8. Exercise of powers in appeal from order made in execution of decree

The powers conferred by rules 5 and 6 shall be exercisable where an appeal may be or has been
preferred not from the decree but from an order made in execution of such decree.

4.2 Procedure at Hearing53: Rules 16-21

(a) Right to begin: Rule 16

(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant
shall be heard in support of the appeal.

(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the
appeal and in such case the appellant shall be entitled to reply.54

A partial decree is, in effect, a decree for the plaintiff, so far as the plaintiff's case is accepted, as
well as a decree for the defendant, so far as the plaintiff's case is dismissed and if it is not
attacked either in appeal or by way of cross objection, cannot be challenged in the appellate
court, Jagar vs Dhirendra. 30 DLR 240.
53 Shah vs Golam (Md) 52 DLR (AD) 16

54 Sk. Pir vs Aminuddin. 11 DLR 345

 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

Review is a tool that is used by an aggrieved party, to request a court of law to take a second look
at its decision or verdict. Review is used in situations where there is no provision for an appeal.
Review is not a statutory right of the people and is considered a discretionary right of a court as
it can reject the request for a review. Review is sought in the same law court from where the
original decision came. There is no system of a second review. Review can be undertaken suo
moto by a court of law.

4.3 Appeal and Review55

Review is mostly concerned with the correctness of the legal matters of a decision
whereas an appeal is mostly concerned with the correctness of the decision itself.

Review is filed in the same court whereas appeal is filed in a higher court.

Appeal is a statutory right of the individual whereas review is a discretionary right of the
court.

4.4 Appeal and Reference56

A right of appeal is a right conferred on the suitor, while the power of reference is vested
in the court.
Reference is always made to the High Court, while an appeal is preferred to a superior
court which need not necessarily be High Court.
The grounds of appeal are wider than the grounds of reference.
Reference is made in a pending suit, appeal or execution proceeding in order to enable
the court to arrive at a correct conclusion, while an appeal is preferred after the decree is
passed or an appealable order is made.

4.5 Appeal and Revision57

55 Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 155

56 ibid
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

An appeal lies to a superior court, which may not necessarily be a High Court; but an
application for revision lies only the High Court.

An appeal lies only from appealable orders and decree, but an application for revision can
be made only when the relief by way of appeal to the High Court is not available.

A right of appeal is a substantive right given by statute. There is no right of revision. It is

only a privilege. A party may move the High Court to invoke its revisional jurisdiction or
the High Court may of its own motion exercise revisional jurisdiction, but the power is
discretionary.

An appeal abates if the legal representatives of a deceased party are not brought on the
record within the time allowed by law. A revision does not abate in case of the death of a
party even if the legal representatives are not brought on the record. The High Court has a
right to bring the proper parties before the Court at any time.

The grounds of appeal and revision are different. An application in revision can lie only
on the ground of jurisdiction, and the High Court in exercise of its revisional jurisdiction
is not a court of appeal on a question of law or fact. In an appeal the court has the power
to decide both questions of fact and law.

Section 115 does not require that there should be an application in revision. The High
Court can move of its own accord in exercising revisional jurisdiction. In case of appeal
there must be a memorandum of appeal filed before the same can be considered by the
appellate court.

An essential distinction between an appeal and a revision is based on differences implicit

in the said two expressions. An appeal is continuation of the proceedings. In effect, the
entire proceedings are before the appellate authority and it has power to review the
evidence subject to the statutory limitations prescribed. But in the case of a revision,

57 ibid
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

whatever powers the revisional authority may or may not have; it has not the power to
review the evidence unless the statute expressly confers on it that power.58

4.5 Conclusion

The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an
application or petition to appeal higher Court for are consideration of the decision of appeal
lower court. It is appeal proceeding for review to be carried out by appeal higher authority of
appeal decision given by appeal lower one. In appeal is appeal creature of statute and right to
appeal is neither an inherent nor natural right.Appellant 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 favour, 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.

As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesnt
arise when adverse decision is given, but on the day suit is instituted i.e. proceedings
commenced, right to appeal get conferred. Thus, it can be said the Right to appeal is appeal
substantive right vested in parties from the date suit instituted.

58 State of Kerala v. K.M. Charia Abdidla & Co., A.I.R. 1965 S.C. 1585.
 APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908

Book reference:

1.Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, 2014

2. Mahmud Wazedd: Hand book on code of civil procedure;

3. Mahbudul Islam: Law of Civil Procedure, ed.2nd , Volume 2 (or 21r. 60 to end)

4. Md. Abdul Halim: Text Book on Civil Procedure

5. A. M Moniruzzaman, Civil Procedure Code, 3rd ed., (Dhaka: Shams Publications, 2007

6. Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 755.

7. The Code of Civil Procedure, 1908

8. Md. Abul Kalam Azad, The Code of Civil Procedure, 3rd ed., (Dhaka: Lipi Law Book
House, 2008)
APPEAL IN A CIVIL SUIT UNDER THE CODE OF CIVIL PROCEDURE, 1908