By- Shaurya Raj
Published on: May 29, 2022 at 11:20 IST
Almost all major legal jurisdictions consist of appeal provisions, and the civil laws are not on the contrary. The rights of appeal under the Civil Procedure Code are not natural or inherently attached to the litigation but is rendered by the statue or by rules enforced by the statue. This article delves into the concept of appeals under the Civil Procedure Code.
GROUNDS OF AN APPEAL.
An appeal under the Civil Procedure Code can be made under the following grounds:
- A decision has already been made by a judicial or administrative authority.
- A person is aggrieved of such decision, whether or not he is a party to the proceeding.
- The appeal is entertained by a reviewing body.
WHO CAN FILE AN APPEAL?
Any of the following persons can file an appeal:
- Any party to the original proceeding or his/her legal representatives.
- Any person claiming under such party or a transferee of interests of such party.
- Any person appointed by the court as the legal guardian of a minor.
- Any other aggrieved person after taking leave of the court.
MEMORANDUM OF APPEAL.
Any appeal under these provisions must be supported with a memorandum of appeal, which is a document comprising of the grounds of appeal. The constituents of a valid memorandum of appeal include:
- The grounds for filing an appeal.
- Signature of the appellant or his/her pleader.
- The attachment of the certified copy of the original judgement.
- The remittance of the decretal amount or security (in case of a money decree).
The appellant, with respect to this provision, is not entitled to take any grounds or objection except the ones mentioned in the memorandum. However, the court may accept such objections on its own accord, provided the opposite party is provided with adequate opportunities to contest such grounds. The court has the right to reject or amend any memorandum which it finds to be inappropriate. The court shall record the reasons for such rejection.
The memorandum can be divided into two parts:
- Formal part
- Material part
In the formal part, the following should be included:
- Heading of the case: the case should begin with the name of the court, the name and address of the parties to the appeal should be given first.
- An Introductory state of the appellant: this must give the particulars of the decree or order appealed form.
- The valuation of the appeal: though there is nothing in the CPC to require that the valuation of an appeal should be written in the memorandum of an appeal.
The material part of an appeal includes the following ground of an appeal:
- The grounds of an appeal or objection should be written distinctively and specifically.
- They should be written concisely.
- They must not be framed in a narrative or an argumentative form.
Appeals from orders of Tribunal.
When the parties to the proceedings are dissatisfied with the tribunal’s orders or conclusions, they may submit an appeal with the national company law appellate tribunal. Section 421 of Company Act, 2013 elaborate that:
- Either one of the parties or both the parties to the proceedings who are aggrieved by an order of the tribunal shall file an appeal to the appellate tribunal.
- An appeal shall not lie with the tribunal without the consent of both the parties.
- It shall be filed to NCLAT within the forty-five days of the order of the tribunal and in such prescribed form and accompanied by such fees.
- It can be filed after a said period of forty-five, if the tribunal is of the opinion there is sufficient cause from filing an appeal within that period but the time limit for filing cannot extend beyond forty-five days.
- After giving a reasonable opportunity of being heard to both parties, the tribunal may pass such orders as it thinks fit.
- It may either confirm, modify or set aside the order appealed against.
- The appellate authority shall send a copy of the order to the tribunal and the parties concerned.
Section 100 of the Civil Procedure Code provides that an appeal can be moved to the High Court from every decree passed in appeal by any subordinate Court if the High Court finds that the case includes a substantial question of law. Taking this into context, the memorandum of appeal must clearly state the substantial question of law in this appeal. If the High Court deems it to be satisfactory, it may go on to formulate the pertinent questions, based on which the appeal would be heard. Also, the High Court may hear the appeal on any other substantial question of law not formulated by it if it feels that the case involves such question. It may be noted that a second appeal is only meant for questions of law and hence cannot be made on the grounds of an erroneous finding of fact. On the same page, in the absence of any errors or defects in the procedure, the finding of the first appellate court will be considered as final, if the particular Court produces evidence to support its findings. In another important note, second appeals cannot be made for a decree if the subject matter of the original suit is intended to recover a sum of Rs. 25,000.
DIFFERENCE BETWEEN SECOND APPEAL AND REVISION
Despite the similarities in outlook, the nature of a second appeal and revision vary, the likes of which has been elaborated below:
|Involves a substantial question of law||Involves a jurisdictional error|
|Filed to oppose a decree passed by the appellate court||Filed in cases where there was not any appeal in the first place|
|The High Court is entitled to rectify a legal error of the lower court||The High Court is not entitled to amend the decision of a lower court even in the case of a legal mistake|
|The High Court may decide an issue of fact||An issue of fact cannot be decided by the jurisdictional body|
|The High Court is not vested with any discretionary powers, and hence it cannot refuse to grant relief on equitable grounds||The High Court may decline interference on the satisfaction that substantial justice has been done|
APPEALS FROM ORDERS
Appeals from orders could be placed with respect to the following pronouncements on the grounds of any defect or irregularity in law:
- Any orders under Section 35A of the Code allowing special costs, and orders under Section 91 or 92 refusing leave to institute a suit of the kind referred to in Section 91 or Section 92.
- Any orders under Section 95, which involves the compensation for obtaining attachment or injunction on insufficient grounds.
- Orders under the code which deals with the imposition of fine, direction of detention or arrest of any person except in execution of a decree.
- Appealable orders as prescribed under Order 43, R.I. However, appeals cannot be filed based on any order enlisted in clause (a) and from any order passed in appeal under Section 100.
APPEALS BY INDIGNANT PERSONS.
Any person who is incapacitated to remit the fee required to file the memorandum may file an appeal as an indignant person. If the court declines the application of a person to appeal in this manner, it may necessitate the applicant to remit the required court fee within a prescribed time-frame.
APPEALS TO THE SUPREME COURT.
Appeals to India’s highest jurisdictional body can be made if the former considers the case to be appropriate for an appeal to the Supreme Court or when a special leave is granted by the Supreme Court itself. Appeals can be filed to the Supreme court by filing a petition with the court which enacted the decree, upon which the petition would be heard and disposed of within a period of sixty days. Petitions submitted for this purpose must state the grounds of appeal. Also, it must include a plea for the issuance of a certificate stating that the case involves a substantial question of law which needs to be decided by the Supreme Court. The opposite party will be provided with an opportunity for raising any objections against the issue of such certificate. The petition would be disposed of if the applicant is denied the certificate. If accepted, the appellant would be required to deposit the required security and costs within a prescribed time-frame. After the applicant performs the above obligations, the court from whose decision an appeal is preferred shall declare the appeal as admitted, an intimation of which will be addressed to the respondent. Further to this, the jurisdictional body forwards a precise copy of the record under seal and furnishes the copies of such papers in the suit.
A memorandum of appeal is different from a petition. Therefore, no enumeration of the facts of the case, no complaint against the high handedness of the other party, no plea of the helpless condition of the appellant and no plea for the sympathy of the court should find any place in the memorandum.
Edited By: Advocate Ramsha Shaikh, Associate Editor at Law Insider