Appeals from Original Decrees

In one line

A first appeal is a rehearing on both facts and law, and that is what separates it from every other remedy against a decree.

Why a first appeal exists

A trial judge sees the witnesses and forms views quickly, and he can be wrong about the facts as easily as about the law. A system that allowed challenge only on points of law would leave most errors uncorrected, because most errors are factual.

So the Code gives one full reconsideration. The appellate court may go through the evidence again, disagree with the findings, and substitute its own. That generosity is confined to the first appeal: by the time a case reaches a second appeal the facts have been decided twice, and section 100 restricts it to a substantial question of law. See [Appeals from Appellate Decrees].

The right of appeal: section 96

Section 96(1): save where otherwise expressly provided by the Code or by any other law in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

Then three limits, and they are the standard short question on this section.

Section 96(2): an appeal may lie from an original decree passed ex parte.

Section 96(3): no appeal shall lie from a decree passed by the Court with the consent of parties. A party cannot agree to a decree and then complain about it.

Section 96(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.

Note the structure. Sub-section (1) gives the right, and it attaches to a decree, which is why [Definitions] matters here: a dismissal for default is not a decree and cannot be appealed, while the rejection of a plaint is deemed to be one and can. Sub-section (2) confirms that losing by absence does not forfeit the appeal, though the defendant also has the separate remedy of Order IX Rule 13.

Section 97 is the trap that costs litigants their case: where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal preferred from the final decree.

So a preliminary decree must be appealed when it is passed. A party who waits for the final decree and then attacks the preliminary one has lost the point. See [Definitions] for the preliminary and final distinction.

Section 98(1): where an appeal is heard by a Bench of two or more Judges, it shall be decided in accordance with the opinion of those Judges or of the majority.