Part VII Appeals - The Code Of Civil Procedure 1908 (CPC 1908)

Appeals From Original Decrees

Section 96. 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.

¹[(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 ²[ten thousand rupees.]]

Section 97. Appeal from final decree where no appeal from preliminary decree.

Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

Section 98. Decision where appeal heard by two or more Judges.

(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed : Provided that where the Bench hearing the appeal is ³[composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.

⁴[(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters to patent of any High Court.]

Section 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.

No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder ⁵[or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:

⁶[Provided that nothing in this section shall apply to non-joinder of a necessary party.]

⁷[Section 99A. No order under section 47 to be reversed or modified unless decision of the case is prejudicially affected.

Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case.]

Appeals From Appellate Decrees

⁸[Section 100. Second appeal.

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]

STATE AMENDMENT

Kerala.

In sub-section (1) of section 100 of the Principal Act, after clause (c), the following clause shall be added, namely:

(d) the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the Court of first instance on such question.

[Vide Kerala Act 13 of 1957 sec. 4.]

⁹[Section 100A. No further appeal in certain cases.

Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge.]

Section 101. Second appeal on no other grounds.

No second appeal shall lie except on the ground mentioned in section 100.

¹⁰[Section 102. No second appeal in certain cases.

No second appeal shall lie except on the ground mentioned in section 100.

¹¹[Section 103. Power of High Court to determine issues of fact.

In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,—

(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in section 100.]

Appeals From Orders

Section 104. Orders from which appeal lies.

(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:—

¹²* * * * *

¹³[(ff) an order under section 35A;]

¹⁴[(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;]

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules:

¹⁸[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]

(2) No appeal shall lie from any order passed in appeal under this section.

The provisions of this Part relating to appeals from original decrees shall, so far as may be, apply to appeals—

(b) from orders made under this Code or under any special or local law in which a different procedure is not provided.

Ins. by Act 104 of 1976, s. 33 (w.e.f. 1-2-1977).↩

Subs. by Act 46 of 1999, s. 9, for “three thousand rupees” (w.e.f. 1-7-2002).↩

Subs. by Act 104 of 1976, s. 34, for certain words (w.e.f. 1-2-1977).↩

Ins. by Act 18 of 1928, s. 2 and the First Schedule.↩

Ins. by Act 104 of 1976, s. 35 (w.e.f. 1-2-1977).↩

Proviso Added by s. 35, ibid. (w.e.f. 1-2-1977).↩

Ins. by s. 36, ibid. (w.e.f. 1-2-1977).↩

Subs. by s. 37, ibid., for section 100 (w.e.f. 1-2-1977).↩

Subs. by Act 22 of 2002, s. 4, for section 100 A (w.e. f 1-7-2002).↩

Subs. by s. 5, ibid., for section 102 (w.e.f. 1-7-2002).↩

Subs. by Act 104 of 1976, s. 40, for section 103 (w.e.f. 1-2-1977).↩

Clauses (a) to (f) omitted by Act 10 of 1940, s. 49 and the Third Schedule.↩

Ins. by Act 9 of 1922, s. 3, see also foot-note to section 35A, Supra.↩

Ins. by Act 104 of 1976, s. 41 (w.e.f. 1-2-1977).↩

Words “made after the commencement of this Code” omitted by, s. 42, ibid., (w.e.f. 1-2-1977).↩

Subs. by Act 49 of 1973, s. 2, for section 109 (w.e.f. 29-11-1973).↩

Ins. by the A.O. 1937.↩

Subs. by the A.O. 1950, for the former sub-section (1).↩

Part VII Appeals - The Code Of Civil Procedure 1908 (CPC 1908)

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