Contents of Article
PART VII – CIVIL PROCEDURE CODE, 1908
APPEALS (Order 41 – 45)
Appeal is the process of applying to the higher court regarding the decision given by the lower court. Appeal is the statutory right of the person[1].
In the case of Tirupati Balaji Vs State of Bihar[2], the Supreme Court held that appeal is one where the higher court confirm, repeal or reverse the order issued by the lower court.
If the decree is passed by the judiciary, the aggrieved party in an original suit or anybody who necessarily need a review in the judgement can go for an appeal.
Section 96 to section 112 of Civil Procedure Code (CPC) speaks about appeals in different contention.
Order 41 – appeals from original decrees.
This gives the clear specification of how appeal is made, on what grounds it can be done, stay by the appellant court, the securities for the orders from the appeal, exercise of powers of the orders from the appeal, power of the court in discussing the appeals, remand, dismissal of the appeals are discussed. The decree in the appeal is also explained (rule 35). The contents in the decree and the judgement copy are thus discussed.
Order 42 gives the detailed explanation of the appeals from the appellate decrees.
Order 43 gives the detailed explanation about the appeals from the orders.
Order 44 explains the appeals filed by the indigent persons. It says that the people unable pay the memorandum fee then they can apply as an indigent person. The court will grant time for the payment of the fees. The inquiry will be made regarding the question whether the person is an indigent person.
Order 45 speaks about the appeals made to the Supreme Court. The process and procedure and the explanation of the decree are explained.
FIRST APPEAL
The appeal from original decree is said to be the first appeal. Section 96 of the code gives way to challenge the decree or the order passed by the court. The decree may also be the ex-parte decree passed by the court.
In the case of Baldev Singh v. Surendra Mohan Sharma[3], it was held that the appellant court can examine the evidences presented and deal with the courses. As the right to institute the suit is inherent right where as the right to appeal is statutory right. The Supreme Court held that first appeal cannot be dismissed without fully analysed. This was said in the case of Delhi UP Madhya Pradesh Transport Co. v. New India Assurance Co[4]
The decisions which are to be followed by the apex court is held under Order 41 Rule 31, and it was further discussed and elaborated regarding the analysing, determination and the reasoning is thus explained in the case of H. Siddiqui (dead) by LRs v. A. Ramalingam[5]
SECOND APPEAL (Section 100 – section 103)
The appellate decrees are discussed in this part. The number of appeals is denoted in this case. The term substantial question of law is discussed[6]. It was said that the second appeal is preferred only when the substantial question of law is raised[7].
In certain cases when the misreading of the evidence is found then the second appeal is allowed, was said by Supreme Court[8]. Sec 102 also says that the second appeal cannot be made if the subject matter in the money recovery is less than 25000 rupees.
APPEALS TO THE SUPREME COURT
Article 133 of the Indian Constitution deals with the appellate jurisdiction of the Supreme Courts and Section 109 of the Civil Procedure Code deals with appeals in the Supreme Courts,
Certain conditions are made under the Civil Procedure Code for filing appeal in the Supreme Court.
The appeals in the Supreme Court can be made only if the judgement order or decree is passed only by the High Court. In general the case contains the substantial question of law.
If High Court agrees with the subject that it is fit for Supreme Court to deal with issue.
APPEALABLE ORDERS
The interim order can also be made of appeal and the pending order can also be made of appeal.
This is explained under Order 43, Section 104 of Civil Procedure Code (CPC). The compensatory costs, the compensation for arrests, order for the provision for the code and the decree for obtaining arrest are discussed.
REFERANCE
Section 113 of the Civil Procedure Code speaks about reference. It directs the small court to refer the matter to the higher court. The power lies within the subordinate court to refer. It depends upon the act; it is only referred to the High Court. The judicial order is can only be directed for the reference. In case of doubts regarding the questions raised in the act the revision is made.
The reference should be made before the judgement is passed. In the case of Ramakant Bindal vs State Of U.P. And Anr[9], the reference is not made by the tribunal. Where in the case of Banarsi Yadav vs Krishna Chandra Dass And Ors[10], it was held that no reference is required in case of hypothetical question.
REVIEW
Section 114 of Civil Procedure Code deals with the review, when the case is adjudicated to the court it has the authority to review the case. It is the process of the judicial re- examination. It is done by the same judge who delivered the judgement.
In the case of S. Nagaraj And Ors. vs State Of Karnataka And Anr[11], it was said that the review is not an appeal or a revision made in the apex court, it is the re-examination of the same case under the same authority.
It is only maintainable when there is no appeal made in the case. The review can be made on certain grounds, which is when any new evidence is discovered in the case, when the mistakes is found in the record, or if there is any sufficient reasons in which review should be made. The limitation period of review is thirty days as said under the limitation act.
REVISION
The revision is made to look through the order gain and correct it in the necessary terms. Section 115 of the Civil Procedure Code speaks about the revision petition. The revision is done by the High Court in the civil cases. This is done, so that the person cannot be denied of his rights. In case of revision no new evidence or pending matters is accepted.
The revision cannot be done in the subordinate court as it has no jurisdiction over it. The revision is given the limitation period of 90 days.
INHERENT POWERS OF THE COURT
The permanent, inalienable, inseparable powers of the Court are discussed. The section 151 speaks about the inherent powers of the Court.
It is to prevent the process of the abuse of the court. The powers vested in the court as enlisted in the section 151 of the Civil Procedure Code are,
The orders can be rechecked and he mistakes can be resolved. When the order is made by ex-parte the court can give temporary injunctions. The illegal orders are set aside by the court. The subsequent events are taken into consideration by the court. In cameral proceedings is decided by the court. The remarks made against judge can be erased by the court. The review is done and the restoration of the suit can be done by the court.
The infringement of the court is checked by using the powers of the court. The court has the power in reducing the litigation, proceed with multiple suits and can provide a full justice to the parties.
[1] Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126
[2] AIR 2004 SC 2351
[3] AIR 2003 SC 225
[4] 2006 9 SCC 213
[5] AIR 2001 SC 1492
[6] State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594
[7] Panchu Gopal Barua v. Umesh Chandra Goswami & Ors., AIR 1997 SC 1041
[8] P. Chandrasekharan & Ors. v. S. Kanakarajan & Ors. (2007) 5 SCC 669
[9] AIR 1973 All 23
[10] AIR 1972 Pat 49
[11] JT 1993 (4) SC 27, (1994) ILLJ 851 SC, 1993 (3) SCALE 548, 1993 Supp (4) SCC 595, 1993 Supp 2 SCR 1, 1994 (1) SLJ 61 SC
Quite helpful to look through these terms !
Thanks to Author 😊